Business groups sue to block Ventura County's wildlife passage law

Two business groups are asking the courts to block a law aimed at protecting the passage of wildlife in Ventura County, arguing that the groundbreaking legislation should never have been approved without environmental review.

The Ventura County Coalition of Labor, Agriculture and Business along with the California Construction and Industrial Materials Association sued in late April, a month after the Ventura County Board of Supervisors narrowly passed the controversial measure.

“It was a step too far,” said Lynn Jensen, executive director of the 500-member coalition.

An attorney for the construction materials association, known as CalCIMA, said the organization doesn’t know what the environmental impact of the ordinance will be on mining of the mineral resources cited in its lawsuit. But the group says it was the county’s responsibility to study it.

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“We are not going to necessarily oppose the idea of a wildlife corridor,” attorney Kerry Shapiro said. “We are saying: Analyze the impact.”

Supervisors approved the measure 3-2 in March after a heated hearing drawing hundreds of people.

Most were angry farmers and ranchers who opposed additional governmental regulation of private land. But supporters — including conservation groups and scientists — endorsed it as a way to help wildlife survive in the heavily populated county. They urged the board to act before it was too late. 

Environmental review debate

Supervisors found that no environmental review was needed under terms of the California Environmental Quality Act, based on a recommendation from county planners that was reviewed by attorneys.

Officials made the recommendation based primarily on sections of the act that say actions regulatory agencies take to protect natural resources and the environment are exempt, Assistant County Counsel Jeff Barnes said.

“That is what this ordinance is intended to do,” he said.  

The measure also qualifies under a section of the law that says proposals are exempt if it can be seen with certainty there is “no possibility” they could cause harm to the environment, he said.

If the court finds the ordinance qualifies for any of those reasons, the ordinance is deemed exempt, he said. 

Neither plaintiff has asked for an immediate hearing on the lawsuits filed in Ventura County Superior Court. Judge Kevin DeNoce has directed attorneys to appear June 11 for a case management conference, but County Counsel Leroy Smith said the legislation is still due to go into effect May 18.

The ordinance limits impermeable fencing, night lighting, construction and clearing of vegetation to help wild animals move between the Santa Monica Mountains and the Los Padres National Forest in their search for food, shelter and mates. The new rules apply in a land-use zone of 163,000 acres for what appears to be the most comprehensive effort to protect the passage of wildlife in the state. 

A large portion juts in fingers of land from the north side of Simi Valley to the Los Padres National Forest, with a small portion in the southeastern corner of the county. Other affected areas include land between Camarillo and Thousand Oaks, a swath south of Ojai, and territory along the Santa Clara and Ventura rivers. 

CoLAB says the supervisors’ approval of the ordinance was based on outdated studies. The group called for new research to assess the effects of the measure on wildfire hazards, mineral resources, agriculture, air quality, greenhouse gases, traffic, circulation and community character. 

The “refusal to study and mitigate the increased wildlife risks” is “reckless and cannot be allowed to stand,” the 58-page CoLAB lawsuit says. Although county planning officials did not call for a CEQA review, they consulted with the Ventura County Fire Department on fire safety issues.

Fire officials helped craft exemptions to make sure the measure allows adequate control of brush, Ventura County Fire Chief Mark Lorenzen said.

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“From our perspective (the ordinance) didn’t have any impact on fire safety,” he said. 

CoLAB objects to new rules that apply to clearing of brush on private property within 200 feet of the edge of natural waterways such as rivers, creeks and streams. For rivers and streams, the distance is longer because the buffer must be measured from the edge of the associated riparian habitat.

Farmers and ranchers could clear hundreds of feet of brush without permits in the past, Jensen said. That allowed them to protect their rural properties during wind-driven wildfires when firefighters were focused on high-density neighborhoods, she said.

Jensen said getting discretionary permits — which require the approval of a decision-maker rather than being issued over the counter —  is costly and time-consuming. 

“Most people are not going to be able to do it,” she said. 

But there are multiple exemptions.

Residents don’t need permits to clear brush within the buffer if they use hand tools, such as a chainsaw that would typically be used to clear land. Another exemption allows them to clear up to 10% of a lot located within the buffer during a 12-month period. That can be done with heavy equipment.

They must continue to clear 100 feet around structures as required by the fire department. Exemptions also exist for people who burn brush pursuant to a permit issued by the fire department or follow a wildfire protection plan for communities with high fire hazards.

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Property rights raised

CoLAB says the measure is not just a CEQA issue. The organization says the ordinance also violates constitutional rights to due process, equal protection and vested property rights; could run afoul of a law that provides tax incentives for raising livestock; and violates a law regulating mining.

CoLAB is seeking a court order to restrain the county from taking any action to implement the ordinance pending full compliance with CEQA and other state and local laws.

“Despite the laudable purpose — and CoLAB supports reasonable efforts to minimize impacts to wildlife movement within the county — many of the ordinance’s regulations are legally flawed and scientifically unsupportable,” the suit says. 

Road, housing issues raised 

The lawsuit filed by CalCIMA focuses on the effect of the ordinance on the supply of construction aggregate and the ability to mine it from the ground. 

Aggregate is the sand, gravel and crushed stone that provide the bulk and strength to concrete, blacktop, plaster and stucco, according to a report from the California Geological Survey.

The lawsuit says the county has “unlawfully” rezoned 13,000 acres of land containing aggregate deemed by the state of significant importance without considering the impact on future production.

Shapiro said a significant portion of that land lies along the Santa Clara River, with other portions located north of Moorpark and Simi Valley and in a small area south of Simi Valley. 

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Ventura County has about 35% of the aggregate it is projected to need over the next 50 years, state figures show.

In the litigation, CalCIMA seeks an injunction to restrain the county from taking any action to implement the wildlife ordinance pending full compliance with applicable laws and regulations and the county’s general plan. The organization also wants the court to set aside the board’s approval of the ordinance, require the county to comply with applicable laws and regulations, and declare all approvals of the ordinance invalid.

County attorneys said they are confident the ordinance will withstand a court test.

“We considered all legal issues,” Smith said.

The Board of Supervisors received an update on both cases from county attorneys in closed session Tuesday, but provided no direction, Smith said.

Kathleen Wilson covers the Ventura County government, including the county health system, politics and social services. Reach her at kathleen.wilson@vcstar.com or 805-437-0271.