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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from May, 2012


Having Just Met the Federal 1-Hour Ozone Standard, District Has Eyes Set On Its Next Goal of Meeting Health Standards For Ground-Level Ozone

Thursday, May 31st, 2012

Upon reaching a large milestone in improving air quality, the Sacramento Metropolitan Air Quality Management District (District) prepared and recently released the 2011 Snapshot Report.  The Report announces the District’s recent achievement of attaining the Federal 1-hour Ozone Standard, but also acknowledges that there is still much to be done.  The District, which includes all of Sacramento County and Yolo County, along with portions of El Dorado, Placer, Sutter, and Solano counties, has yet to meet the health standards for ground-level ozone, which it claims will take additional years  because the emissions causing the ozone exceedence come from mobile sources.  There are, however, many incentive and collaborative programs in place for other agencies, governments and citizens to assist with reducing emissions.  So far, these programs have removed nearly 11 tons of pollution per day from the region.   One such program is the School Bus Program which has delivered over 500 school bus replacements and retrofits for cleaner and healthier buses.  Programs also include the Bicycle Parking Program, which will install new bike racks throughout the District to encourage this cleaner form of transportation, and the Check Before You Burn program, which has provided the largest emission reductions seen in the area.  With the continued effort of the District, multiple incentive programs, and the community support and compliance, the District has already seen a dramatic decrease in air pollution and hopes to continue this downward trend into the future.  The 2011 Snapshot Report can be viewed at the Sacramento County homepage.  A direct link to the report is found at: Snapshot Report

Written By: Tina Thomas, Michele Tong and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

California’s Highest Court Grants Review of Berkeley Hillside Preservation Decision

Thursday, May 31st, 2012

On May 23, 2012, the California Supreme Court unanimously agreed to grant review of Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The issue before the court will be whether the City of Berkeley must prepare an environmental impact report (EIR) before approving the construction of a 10,000-square-foot single-family home. The trial court upheld the City’s approval and determination that the project fell within two CEQA exemptions: (1) the Infill Development Exemption and (2) the New Construction/Conversion of a Small Structure Exemption. The First Appellate District reversed the lower court’s holding, ruling that based on a “fair argument,” the “unusual circumstances” exception prohibited the City from relying on the categorical exemptions, thus requiring the City to conduct an EIR. The City of Berkeley and Real Party in Interest petitioned for review. The court’s review is estimated to take 12 to 18 months.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Finds No Vested Right Where Prior Mine Owner Did Not Assert One

Wednesday, May 30th, 2012

In an unpublished opinion, McMillan v. County of Siskiyou (2012) 2012 Cal.App.Unpub. Lexis 3791, the Third District Court of Appeal held a property owner does not have a vested right to mine his property where the previous owner did not assert a vested right to engage in mining activities.

Petitioner acquired property in Siskiyou County in 1967 and transferred it to a corporation, which he established to conduct lawful mining activities without a permit. Subsequently, the county adopted an ordinance in 1974 requiring a permit for mining operations. California later enacted the Surface Mining and Reclamation Act (SMARA), which took effect in 1976 and required, among other things, mines in California to operate under a permit. Because the mine owned by petitioner’s corporation began operations without a permit before one was required, it could have continued operating without one pursuant to its vested right to do so. Despite this, the corporation’s mine began operating under a five-year renewable use permit, which was first issued in 1979 and renewed a total of three times, the last time being in 1993 though the permit was not actually issued until 1998. In 2003, Petitioner established a new corporation to conduct the mining operations, and the mineral rights to the property were transferred to the new corporation. Eventually, the Department of Conservation issued an order to the company requiring compliance with SMARA. Petitioner challenged the order, arguing that the corporation had a vested right to mine that did not require compliance with SMARA.

The court of appeal found no vested right. Relying on a 1976 Attorney General opinion pertaining to SMARA, the court explained the creation of a vested right is a “personal process” rooted in theories of equitable estoppel, and a successor in interest to a property may only claim a vested right where the prior owner established a vested right. Petitioner’s first corporation owned the mine prior to 1976, when any vesting of the right to operate without a permit could have occurred, but instead operated pursuant to a permit. Thus, the corporation did not establish its vested right to operate without a permit. Accordingly, when the property was transferred to a new corporation in 2003, that corporation could not claim a vested right to mine the property without a permit.

Written By: Tina Thomas, Amy Higuera and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Environmental Plaintiffs Do Not Need to Wait for Environmental Damage to Occur Before Challenging NEPA Compliance

Friday, May 25th, 2012

In Friends of the River v. United State Army Corps of Engineers, 2012 U.S. Dist. LEXIS 59405, the United States Army Corps of Engineers (Corps) adopted several documents establishing “mandatory vegetation-management standards for levees.”  Friends of the River, Defenders of Wildlife, and Center for Biological Diversity (Plaintiffs) filed suit to challenge the Corps’ procedural process.  Plaintiffs alleged that the Corps’ actions consisted of final agency actions, major federal actions, and rule-making, thus requiring compliance with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA).  Plaintiffs claimed the Corps violated all three statutes.  The Corps responded with a motion to dismiss for lack of subject matter jurisdiction, which the US District Court for the Eastern District of California denied.

The Corps first argued that the court lacked jurisdiction because their actions were not considered a reviewable final agency action.  The court explained that a final agency action marks consummation of the agency’s decision-making, determines rights or obligations, or is an action from which legal consequences will flow.  However, despite the compelling arguments presented by both sides, the court stated that it could not rule on this issue until it had reviewed the whole administrative record.  Due to the lack of the full administrative record, the court also declined to rule on the issue of whether the Corps properly complied with the APA before adopting its new rules.

The Corps next argued that Plaintiffs’ programmatic challenges were too broad and should thus be dismissed.  The court explained that the APA does not allow “programmatic” challenges, but instead requires a challenge to a specific final agency action which has “an actual or immediate threatened effect” (Lujan v. Nat’l Wildlife Fed’n).  However, in this case, the court found that Plaintiffs’ programmatic challenges were cognizable under all the statutes of APA, NEPA, and ESA.

The Corps also alleged that Plaintiffs’ claims lacked ripeness and that Plaintiffs themselves lacked standing.  In assessing ripeness, the court explained that it considers (1) whether delayed review would cause hardship to the plaintiffs, (2) whether judicial intervention would inappropriately interfere with further administrative action, and (3) whether courts would benefit from further factual development of the issues presented (Ohio Forestry Ass’n, Inc. v. Sierra Club).  Plaintiffs claimed procedural injuries due to the Corps’ alleged failure to undertake timely NEPA and ESA review.  The court followed the Ninth Circuit and held that environmental plaintiffs do not need to wait for environmental damage to occur to challenge an agency’s NEPA compliance; therefore, Plaintiffs’ claims were ripe for review.  In order to prove standing, Plaintiffs must show that they suffered a cognizable injury in fact, that there is causation between the Corps’ actions and their injury, and that the injury is reasonably redressable by the court.  The court held since Plaintiffs’ alleged injury was “geographically specific, was caused by the regulations at issue, and was imminent” (Ctr. For Biological Diversity v. Kempthorne), the types of harm and injury Plaintiffs alleged were cognizable for purposes of sanding.  The court further explained that to satisfy causation and redressability for procedural injuries, Plaintiffs did not need to show that compliance with APA, ESA, and NEPA will ultimately redress the injury, but rather that compliance with the statutes may address the injuries.  Therefore, not only were Plaintiffs’ claims ripe but Plaintiffs had the requisite standing.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Federal District Court Stays Litigation over Endangered Frog and Snake to Permit U.S. Fish and Wildlife Service Consultation to Conclude

Thursday, May 24th, 2012

In Wild Equity Institute v. City and County of San Francisco, 2012 U.S. Dist. LEXIS 58620, Plaintiffs, a collection of non-profit conservation groups, sued the City of San Francisco (City) for violation of the Endangered Species Act (ESA), claiming City’s actions as the owner and operator of the Sharp Park Golf Course (SPGC) have caused the “taking” of the threatened California Red-Legged Frog (Frog) and the endangered San Francisco Garter Snake (Snake).  Both parties filed cross-motions for summary judgment. Plaintiffs sought partial summary judgment on the issue of whether the City’s water pumping activities caused a “taking” of the Frog.  City countered with motions for summary judgment on the grounds that Plaintiffs lack standing to pursue their claims, or in the alternative, sought a stay during consultation with U.S. Fish and Wildlife Service (FWS) for authorization to move individual Frog egg masses.  The District Court for the Northern District of California denied both parties’ motions and stayed the case.

Addressing first the issue of standing, the court began by discussing the Article III standing requirements of injury-in-fact, causation, and redressability.  The court quoted  Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181 (2000) to explain that environmental plaintiffs have suffered a concrete, actual, injury-in-fact when they “aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.”   The court held that these Plaintiffs have claimed impaired enjoyment of seeing the Frog and Snake, have pinpointed specific dates at which they have visited the park, and have presented concrete plans to visit the park again in the future; Plaintiffs have sufficiently shown an injury-in-fact.

Regarding causation, City argued that Plaintiffs did not show that City’s actions at SPGC reduced the Frog population to the extent it would adversely affect their opportunity to observe the Frogs.  The court rejected this argument finding a genuine issue of fact pertaining to the growth of the Frog population – according to City it is growing, but according to the Plaintiffs’ experts the population is merely stable.  The court explained that the value of an area can be affected by a stymied population growth even in the absence of an actual population loss.  Pertaining to redressability, the court assumed that Plaintiffs’ remedial theories are correct, that halting the pumping and lawn mowing actually will stop the “taking” of the Frog and the Snake.  Finding all three criteria satisfied, the court held that Plaintiffs have standing.

The court held, however, to stay the case for two reasons.  First, the court found that the City’s consultation with FWS is underway and could possibly be completed within a few months.  The court wanted to allow the expert agency to review the City’s plan and evaluate the impacts on the Frog and Snake.  The court explained that if the City is granted authorization, then the case will be moot.  Second, the court felt that since it is now April and Frog breeding will not occur again until late winter, no actual “taking” of the Frog eggs will occur until then.  Therefore, the court ordered a stay pending the outcome of the FWS consultation.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Citizens for East Shore Parks v. California State Lands Commission (2011) 202 Cal. App. 4th 549

Tuesday, May 22nd, 2012

Petitioner petitioned for a writ of mandate, claiming that the California State Lands Commission (Commission) failed to comply with CEQA and the public trust doctrine in approving Chevron’s lease renewal for a marine terminal. The Superior Court denied the petition. Petitioner appealed to the First District Court of Appeal, which upheld the lower court’s decision. The Appellate Court determined de novo whether the Commission complied with CEQA requirements and gave great deference to the Commission’s substantive factual conclusions. In addressing the adequacy of the environmental baseline used in the EIR, the Court held the Commission correctly included the current and operative conditions of the terminal in the baseline even though those existing conditions had not previously been evaluated under CEQA. The Court further held that during the CEQA process, agencies can and should be allowed to make adjustments to its CEQA determinations, including determinations concerning the baseline. The Petitioner raised other issues with the Commission’s EIR, all of which the Court struck down.

Key Points:

The decision reiterates that prior illegal development is properly included as part of the environmental baseline because “[h]ow present conditions come to exist… is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.”

City of San Diego v. Board of Trustees of California State University (2011) 201 Cal. App. 4th 1134

Tuesday, May 22nd, 2012

California State University (CSU) adopted a master plan to expand its San Diego campus. In its EIR, CSU identified mitigation measures to help alleviate traffic impacts. However, CSU ultimately rejected offsite traffic mitigation measures because it could not ensure that the Legislature would provide money to fund the mitigation. The City of San Diego (City) along with local association of governments and the metropolitan transit system, filed petitions for writ of mandate, claiming CSU did not comply with CEQA in preparing and certifying its final EIR for the master plan. The Superior Court denied the petition. On appeal to the Fourth District Court of Appeal, the Court reversed in part, and affirmed in part. Due to a lack of agreement with the City and the uncertainty of legislative funding, CSU ultimately concluded that the mitigation measures for offsite traffic impacts were significant yet unavoidable. The Court disagreed, explaining that CSU needed to inquire about other non-legislative funding to help pay for the offsite traffic mitigation. The Court also held that CSU should have discussed one or more possible modifications to the on-site project in order to reduce or avoid unmitigated impacts. Lastly, the Court held that the EIR failed to evaluate the impact on the City’s transit system. The Court explained that simply because CEQA’s Appendix G does not include transit does not mean that transit related impacts are exempt.

Key Points:

Where a feasible source of funding may be available for adopting “fair share” mitigation to address an impact of a project, a lead agency may not decline to adopt such “fair share” mitigation simply because it concludes one potential source of funding is not feasible.

Quantification Settlement Agreement Cases (2011) 201 Cal. App. 4th 758

Tuesday, May 22nd, 2012

The Imperial Irrigation District, Coachella Valley Water District, and Metropolitan Water District of Southern California entered into various agreements concerning the allocation and conservation of California’s share of Colorado River water. The Imperial Irrigation District filed a validation action, which was opposed by many in separate lawsuits, all challenging the agreements on several grounds, including CEQA. The cases were consolidated. The trial court dismissed the CEQA challenges as moot because it ruled that the agreements must be revoked as unconstitutional. On appeal to the Third District Court of Appeal, the Court held that the agreements were constitutional, thus reviving the CEQA claims. However, even though the Court of Appeal has original jurisdiction over CEQA claims, the Court remanded the consolidated cases to the trial court to allow the lower court to hear the CEQA challenges. The trial court also denied a pretrial motion to dismiss the Imperial County’s CEQA lawsuit because it failed to name the United States and certain Native American tribes as parties. Upon determining that the United States and Native American tribes were “recipients of approval,” the trial court held that the United States and the Native American tribes, although were necessary parties, were not indispensable. The Appellate Court upheld that decision concluding that the trial court acted within its discretion when it concluded that the United States and the Native American tribes were not indispensable parties.

Key Points:

The decision demonstrates that, notwithstanding the Legislature’s attempt to mandate that CEQA litigation be resolved expeditiously, appellate courts may decline to resolve CEQA actions if the trial court has not first considered the substantive merits of the CEQA claim.

Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal. App. 4th 1470

Tuesday, May 22nd, 2012

Petitioner petitioned for a writ of mandate, claiming the County of El Dorado (County) violated CEQA, the Planning and Zoning Law, and traffic safety regulations when it approved a gas station. County responded with a demurrer to the petition, claiming that the Petitioner lacked the capacity to sue since the Petitioner’s corporate status was suspended when it filed the litigation and that the statute of limitations for CEQA and Planning and Zoning Law challenges had since run. The Superior Court sustained the demurrer without leave to amend. Petitioner appealed asking the Court to apply the substantial compliance doctrine. In determining whether to apply the doctrine to this case, the Court looked into the reasons for the shorter statutes of limitations for CEQA and Planning and Zoning Law causes of action. For CEQA challenges, the Court found that the legislature adamantly believes that public interest is best served by a speedy CEQA process. Similarly, the short statute of limitations in the Planning and Zoning Law challenges was designed to avoid delays to the completion of needed projects that already have the required governmental approvals. The Court held that the substantial compliance doctrine could not be used by a suspended corporation to get around these statutes of limitations. The Court held further “that the legislative policy [mandating a short statute of limitations] must trump the judicial policy disfavoring pleas of abatement.”

Key points:

Petitioner groups in CEQA litigation are frequently unincorporated citizen groups. Where the petitioner is an incorporated organization, the respondent and real parties in interest should investigate the corporate status of the petitioner. If the petitioner’s corporate status was suspended when the lawsuit was filed, then dismissal should be sought.

Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal. App. 4th 1317

Tuesday, May 22nd, 2012

The Santa Cruz Local Agency Formation Commission (LAFCO) approved an agreement between the University of California at Santa Cruz (UCSC) and the City of Santa Cruz (City), which stated that the City would extend water and sewer services to UCSC’s north campus, an area just outside the city’s jurisdictional boundaries. The Community Water Coalition (CWC) challenged LAFCO’s jurisdiction because the application was filed by the recipient of the services, UCSC, instead of the provider, City. The City responded with a demurrer claiming the jurisdiction was appropriate. The trial court sustained the demurrer with leave to amend. The Petitioner amended its complaint and added a CEQA cause of action. The City again demurred and this time the trial court denied the petition without leave to amend. The Sixth District Court of Appeal affirmed the lower court’s decision. First, the Court explained that a city seeking to provide services outside its jurisdictional boundaries must receive approval from LAFCO. It does not matter if the city files the application or if the recipient files it. As long as the city that is providing the services is a party to the agreement, LAFCO has jurisdiction and can decide whether to extend the services or not. Second, the Court explained that the trial court did not abuse its discretion by denying the newly alleged CEQA cause of action. The Court explained “when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.” Because the trial court granted leave to amend the complaint only to address the cause of action concerning LAFCO’s jurisdiction, the court properly rejected Petitioner’s new CEQA cause of action.

Key Point:

Where leave is required to amend a petition, a Petitioner may not amend a complaint to add a CEQA cause of action without first obtaining permission from the court to add the new cause of action.