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CEQA Updates

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

Posts from March, 2013


Court Finds No Supplemental Environmental Impact Statement Needed

Friday, March 8th, 2013

In Great Old Broads v. RLH Ram Abigail Kimbell, (March 4, 2013) 2013 U.S.App.LEXIS 4422, the Ninth Circuit Court of Appeal affirmed the District Court’s summary judgment in favor of the United States Forest Service (Forest Service) on the merits in an action challenging the Forest Service’s approval of the restoration of a flood-damaged road in the Humboldt-Toiyabe National Forest, but reversed the District Court’s conclusion on exhaustion of administrative remedies.

In the original action Appellants challenged the Forest Service’s record of decision (ROD), which determined a method for restoring the South Canyon Road as a part of the Jarbidge Canyon Project (Project).  The Project was an effort to reestablish the South Canyon Road after flood waters damaged it, eliminating vehicle access to the Snowslide Gulch Wilderness Portal in the Jarbidge Wilderness.

In 2005, the Forest Service issued a final (ROD) and final environmental impact statement (EIS).  The ROD did not apply any of the four alternatives analyzed in the EIS.  Instead, it combined elements from three of the alternatives into one selected alternative.  Appellants contend the Forest Service’s approval of the Project violated NEPA.  Specifically, Appellants argued the selected “combined” alternative dramatically changed the environmental impacts, therefore requiring preparation of a supplemental environmental impact statement (SEIS).

The court held the Forest Service’s decision to not prepare a SEIS was not arbitrary or capricious because it met the Council for Environmental Quality’s (CEQ) guidelines.  The CEQ guidelines establish a SEIS is not required when two requirements are satisfied: (1) the new alternative is a minor variation of one of the alternatives discussed in the draft EIS, and (2) the new alternative is qualitatively within the spectrum of alternatives that were discussed in the draft EIS.  The Court held the selected alternative met both of these requirements because it was primarily made of elements from Alternatives 1, 3, and 4, which were all previously analyzed as elements in the EIS.  The Forest Service and the public could therefore adequately assess the cumulative effect of these elements, and reasonably determine that the combination was “within the spectrum” of previously analyzed alternatives.

Next, Appellants argued that even if the Forest Service correctly decided that a SEIS was not required, it violated NEPA because it did not adequately document that determination in the record.  The Court disagreed finding the Forest Service did make a reasoned decision.  Additionally, the Forest Service adequately documented the decision in the record with an explanation of why a SEIS is not needed.  The Court concluded the Forest Service met the requirement under NEPA to “document its decision that no SEIS is required to ensure that it remains “alert to new information that may alter the results of its original environmental analysis,” and “continue to take a hard look at the environmental effects of its planned action.”

In regard to the exhaustion doctrine, the Court stated that the Forest Service and the District Court, when reviewing Appellant’s claims, considered only the filed appeal letter and not any of the attachments.  The Forest Service claimed that it did not consider the attached comment letters because the appeal letter did not explain which parts of which comments in the attached letters were relevant to each element of the appeal.  However, Forest Service regulations provide that attachments are a part of an appeal.  Therefore the Court overturned the District Court’s ruling and held that the Appellant’s did in fact exhaust its administrative remedies.

Key Point:

An agency has flexibility to modify alternatives presented in the draft EIS.  However, if substantial changes are made, the agency must prepare a SEIS.  Furthermore, an agency must clearly document its decision not to prepare an SIES to ensure that it took into consideration any new information that may alter the results of the original environmental analysis.

Written By: Tina Thomas, Michele Tong and Andrea Lutge (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.

No Excuses Allowed — Court Determined CEQA Provides No Flexibility in Regard to the 30-day Statute of Limitation Requirement

Wednesday, March 6th, 2013

In an unpublished decision, Alliance for the Protection of the Auburn Community Environment v. County of Placer (Feb. 28, 2013) 2013 Cal.App.Unpub.LEXIS 1524, the Third District Court of Appeal upheld the trial court’s decision that Petitioner’s complaint was barred by the mandatory provisions of Public Resources Code section 21167, which sets forth the 30-day statute of limitations within which to bring a challenge to the approval of an EIR.

The County of Placer (County) certified an environmental impact report (EIR) prepared by Bohemia Properties, LLC for the development of a 155,000 square foot building (the project).  The notice of determination (NOD) was filed on September 29, 2010.  Alliance for the Protection of Auburn Community Environment (Alliance) filed a writ of mandate challenging the approval of the project, alleging violations of the California Environmental Quality Act (CEQA).

In the original action, Bohemia filled a demurrer to Alliance’s claim, alleging it was not filed within statue of the limitation period required under CEQA.  Alliance filed a motion for relief under section 473 of the Code of Civil Procedure.  Section 473 provides that a “court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” provided that relief is sought within a reasonable time, not exceeding six months after the judgment, dismissal, order, or proceeding was taken.

The court explained that statutes of limitation are, “of necessity, adamant rather than flexible in nature.”  If the Legislature desired to allow some flexibility in a statute of limitations, it expressly provides for an extension upon showing of good cause.  However, if the Legislature is silent about a good cause extension, the court infers that the Legislature did not intend such an extension.  Following this reasoning, the court determined Code of Civil Procedure section 473 provided no relief from Alliance’s untimely filing because section 21167 of the Public Resources code, which is the applicable law governing this case, contains no provisions for extending the limitations period, even upon showing of good cause.  The court concluded it could be inferred that Legislature intended there to be no extensions.

In further support of its decision the court explained that CEQA contains a number of provisions that clearly point to the legislative determination that challenges under CEQA be filed promptly in order best serve the public interest.

Written By: Tina Thomas, Michele Tong and Andrea Lutge (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.

Glendora Wal-Mart Expansion is a Go—Court Finds the EIR Not in Violation of CEQA

Wednesday, March 6th, 2013

In Creed 21 v. City of Glendora (Feb. 19, 2013) 2013 Cal.App.Unpub.LEXIS 1193, the Second District Court of Appeal upheld the trial court’s denial of Creed-21’s (Creed) petition for a writ of mandate against the City of Glendora.  Creed contended the Environmental Impact Report (EIR) for the approval of an expansion of an existing Wal-Mart store violated the California Environmental Quality Act (CEQA).  The court rejected each of Creed’s arguments.

First, Creed claimed the EIR failed to consider mitigation measures promoting the use of alternative modes of transportation to reduce the project’s traffic impacts.  The court disagreed, explaining the only additional mitigation measures necessary in this case were those related to the one significant impact identified that could not be mitigated to less than significant, which was an increase in trip rates at one specific intersection.  The court explained the mitigation measure proposed by Creed was aimed at a general reduction of greenhouse gases and vehicle miles traveled, and was not likely to result in a reduction in the trip rates at the impacted intersection.  Additionally, the court upheld the city’s reliance on traffic impact analysis guidelines issued by the Los Angeles County Department of Public Works, which explicitly stated that use of anticipated reductions from measures promoting alternative modes of transportation was not appropriate when determining whether the impacts would be reduced to a less than significant level.

Second, Creed claimed the EIR failed to adequately analyze the project’s potential urban decay impacts because the methodology used in the city’s study was improper.  The court rejected the argument, finding Creed did not meet the burden to show that the urban decay study relied upon by the city was clearly inadequate or unsupported.  The court concluded the city’s finding that there would be no significant urban decay impact was supported by substantial evidence.

Finally, Creed claimed the city improperly rejected an environmentally superior alternative to the project by rejecting a reduced intensity alternative without making an infeasibility finding.  The court disagreed, explaining Creed improperly interpreted a statement by the city that the reduced intensity alternative would, to some degree, meet project objectives to mean that the city did not find the alternative infeasible.  The court pointed to a more detailed explanation within the findings that clearly revealed the city determined the alternative would not meet many of the project’s objectives, and was therefore infeasible.  Creed also argued that, to the extent the city had found the alternative infeasible, its finding was not supported by substantial evidence.  The court rejected this argument, explaining the city’s findings that the reduced intensity alternative would not meet several of the project’s objectives constituted sufficient evidence.

Written By: Tina Thomas, Amy Higuera and Andrea Lutge (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.

Things are About to go Nuclear: Ninth Circuit Court Upholds BLM’s Decision that Uranium Mine Can Reopen without Supplemental NEPA Review

Monday, March 4th, 2013

In Center for Biological Diversity v. Salazar (Feb. 4, 2013) 2013 U.S.App.LEXIS 2406, the Ninth Circuit Court of Appeal upheld the U.S. Bureau of Land Management (BLM)’s approval of the reopening of a uranium mine after a seventeen year lapse.  The Court held that operations could restart without obtaining any additional environmental review.

In 1988, when the mine – located on federal land managed by BLM – originally began operations, BLM conducted an environmental assessment of the mining activities’ impact pursuant to the National Environmental Protection Act (NEPA).  BLM determined the mine would not “cause any undue or unnecessary degradation of public lands” or “significantly affect the quality of the human environment.”  In 2007, after seventeen years of inoperation, Denison Mines Corp. (Denison) notified BLM of the plan to restart mining operations.  In preparation of reopening, BLM asked Denison to amend its level of financial guarantee by submitting a revised reclamation bond estimate.  Additionally, Denison obtained “Permit to Use Right-of-Way” from Mohave County to perform needed improvements to a mine access road.  Prior to Mohave County appointing Denison as its agent to maintain the access road, the County obtained a “Free Use Permit” from BLM to extract a certain amount of gravel from a separate location to maintain the access road.  BLM determined that issuance of the gravel permit fell within a categorical exclusion to NEPA.

The appellants first alleged the original 1988 NEPA assessment was outdated and BLM’s issuance of the free use gravel extraction permit created the need for a supplemental environmental analysis.  The Court held that said supplement analysis was not needed because the gravel permit did not constitute a “major Federal action,” and BLM’s original assessment under NEPA remained valid.

Appellants also argued BLM’s requirement and approval of an updated reclamation bond for the site was in fact a “major Federal action,” triggering the need for a supplemental NEPA analysis.  The Court rejected this argument, explaining that the updated reclamation bond only required “crunching some numbers” and “increasing the bond with newly-applicable regulations.”  The Court concluded this action was ministerial in nature and “such post-project-approval functions are the type of monitoring and compliance activities that this Court has determined do not trigger NEPA’s requirements.”

Next, appellants argued that BLM unlawfully limited the scope of the NEPA analysis when it applied a categorical exclusion to the gravel extraction permit.  The Court rejected the appellants’ argument that BLM needed to “consider, among other things, connected actions, and indirect and cumulative environmental impacts to the proposed action.”  The Court explained that this NEPA requirement only applied to environmental impact statements, not categorical exclusions.  (40 C.F.R. § 1508.4.)  Instead, BLM had to show the issuance of the gravel permit fell within a categorical exclusion and then explain why the permit had no “cumulatively significant” environmental effects preventing the application of the categorical exclusion.  The Court found  BLM had adequately shown the issuance of the free use gravel permit fell within its categorical exclusion, requiring gravel not be extracted in amounts exceeding 50,000 cubic yards or disturbing more than 5 acres.  In addition, the Court found BLM had adequately shown there were no significant cumulative effects to the gravel extraction because the gravel lost would be naturally replenished by rain.  The Court held the categorical exclusion applied and no additional NEPA assessment was required.

Finally, appellants argued that it was improper for BLM to reference the impacts of the 1988 assessment in the categorical exclusion.  They argued BLM needed to follow NEPA procedures for “tiering” or “incorporation by reference.”  The Court held “tiering is not mandatory” and “incorporation by reference” is applied to environmental statements, not categorical exclusions.

Key Point:

As long as the original environmental document is sound and adhered to, any new mine subject to BLM approval which may have a period of inactivity in operations, will not be required to initiate NEPA review once mining operations are ready to commence.  There is a caveat, however, because California legislation recently amended the Surface Mining and Reclamation Act (SMARA) to limit the period of mine idleness to five years with an option to renew for another 5 years.  This presents a potential conflict in state and federal law.

Written By: Tina Thomas, Michele Tong and Andrea Lutge (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.

Adoption of a Resolution Interpreting an Existing Conservation Easement Does Not Constitute Approval of a Project within the Meaning of CEQA

Monday, March 4th, 2013

In an unpublished decision, Joseph W. Tresch v. County of Sonoma Agricultural Preservation and Open Space District Board of Directors (January 4, 2013) 2013 Cal. App. Unpub.LEXIS 67, the First District Court of Appeal affirmed the trial court’s decision upholding the County of Sonoma Agricultural Preservation and Open Space District Board of Directors’ (the District Board) adoption of a Resolution interpreting the use of a conservation easement.  The Court found that adoption of a resolution interpreting an existing conservation easement is not a project subject to the California Environmental Quality Act (CEQA).

In 2001, respondents John Barella, John E. Barella, and Andrea Barella (the Barellas) purchased a tract of land in Sonoma County consisting of a parcel containing a potential gravel quarry and an adjacent parcel with an established conservation easement.  In 2003, the Barellas submitted an application to the County to develop the gravel quarry portion of the land (the Quarry).  Approval of the Quarry required a zoning change, a use permit, a reclamation plan, and an environmental impact report (EIR).  In 2010, a Final Environmental Impact Review (EIR) for the Quarry was approved with the requirement that it “implement measures and avoid take” of California red-legged frog (CRLF) and comply with the federal Endangered Species Act, with respect to California Tiger Salamanders (CTS).  The Barellas proposed a preserve be prepared as one potential means of mitigating the impact of the quarry on the protected species.  Because neither the conservation district’s resolution nor the conditions attached to approval of the quarry’s EIR actually required that the preserve be established, the Barellas asked the District Board to clarify whether the 105 acres of the conservation easement could be used as a preserve.  The District Board adopted a Resolution interpreting that the conservation easement would allow for the establishment of a preserve.

Petitioner brought suit seeking a writ of mandate requiring the District to set aside approval of the Resolution, based on alleged violations of CEQA, and to prepare a new EIR for the Quarry.  First, Petitioner argued that the adoption of the Resolution required compliance with CEQA because the preserve constituted a project under CEQA.  The court disagreed, explaining the adoption of the Resolution did not require a specific action or physical change to the land, it only clarified that the establishment of a preserve was permissible under the existing conservation easement.  The court concluded that the passage of the Resolution was not a part of the Quarry Project for CEQA purposes.

Next, Petitioner argued if the Resolution was not treated as part of the Quarry project, it would allow for the possibility that any future “preserve-related improvements could evade CEQA review altogether.”  The court dismissed this argument explaining that the District Board does not have the authority to regulate land use.  Instead, the District Board’s authority is limited to enforcing the particular uses of the easements it holds.  The court explained that if the preserve was to eventually be constructed, it would not be exempt from CEQA review by the County.  However, if the nature of the construction of the preserve does not require a discretionary approval, then CEQA would be wholly inapplicable.

Petitioner also argued that the adoption of the Resolution was a discretionary act and therefore subject to CEQA.  The court dismissed this argument reasoning that while it is true that a public agency action must be discretionary in order for CEQA to apply, the action of adopting the Resolution did not constitute approval of a project.

Written By: Tina Thomas, Michele Tong and Andrea Lutge (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.

Tahoe Resort Expansion Delayed for Improper CEQA Alternatives Analysis

Friday, March 1st, 2013

In Sierra Club v. Tahoe Regional Planning Agency (January 4, 2013) U.S. Dist. LEXIS 1628, the U.S. Court for the Eastern District of California granted the plaintiffs’ motion for summary judgment, finding a proposed project’s alternatives analysis violated the California Environmental Quality Act (CEQA).  The court ordered the defendants to delay construction until a legally adequate environmental document had been certified and the necessary findings under CEQA had been made.

The project would expand Homewood Mountain Resort (Resort), located on the west shore of Lake Tahoe in Placer County, from 25,000 square feet to over one million square feet.  Approval of the project required action by both Placer County and the Tahoe Regional Planning Agency (TRPA), including several amendments to TRPA’s Regional Plan, adopted in 1987 (Regional Plan).  In January 2011, the two agencies issued a joint draft environmental impact report/environmental impact statement (EIR/EIS), pursuant to the requirements of CEQA and the Compact between California and Nevada establishing the TRPA, analyzing potential impacts of the project.

The plaintiffs first argued the EIR/EIS failed to consider a reasonable range of alternatives because it did not consider an alternative that required no amendments to the Regional Plan.  The EIR/EIS explained that a “no-amendment” alternative would eliminate overnight lodging, making the alternative inconsistent with the Resort’s objective to transform Homewood into an overnight destination.  The court held that the agencies considered a reasonable range of alternatives, explaining an EIR is not rendered deficient merely because it does not address a particular alternative called for by petitioners.  Instead, an EIR need only consider a reasonable range of alternatives that would be capable of avoiding or substantially lessening any significant effects of a project.  Here, the EIR/EIS included six alternatives (besides the proposed project), which allowed the public and decision makers to compare the impacts of closing the Resort, reducing the size of the proposed project, and adjusting the proposed project in different ways to address environmental impacts. The court found that this range of alternatives allowed informed decision making, as required by CEQA.

The plaintiffs also argued that the EIR/EIS failed to provide enough reduced-size alternatives, arguing that although the EIR/EIS considered one such alternative, the impacts of another reduced-size alternative would have been substantially less.  The court again disagreed, explaining that CEQA does not require an EIR to consider “each and every conceivable variation of the alternatives stated.”

The plaintiffs next argued that the agencies’ findings of financial infeasibility for the reduced-size alternatives were in violation of CEQA.  The court held that the findings were not supported by substantial evidence because they failed to consider all of the Resort’s revenue streams, and not just income generated from the sale of ski lift tickets.  The court explained that, had the economic analysis considered all sources of revenue, it would have concluded that the reduced-size alternative would be less profitable, but not economically infeasible.  The plaintiffs also argued the agencies failed to adequately explain why the reduced-size alternatives were rejected as economically infeasible.  The court again agreed, explaining the failure to include information on how additional revenue streams would enable the ski resort to be financially viable in the future was misleading to the public because it suggests that ski lift ticket sales revenue is the only relevant factor in assessing the financial viability of the Resort.

The plaintiffs next challenged the EIR/EIS’s analyses of soil, water, and air quality impacts.  The EIR/EIS proposed several mitigation measures to reduce the impacts on these resources to a less than significant level.  The court rejected each of the Plaintiffs’ arguments, finding each mitigation proposal was based on substantial evidence.

The plaintiffs also unsuccessfully challenged the adequacy of the EIR/EIS analysis of construction noise impacts.  The EIR/EIS adopted both the County’s and TRPA’s noise ordinance as thresholds of significance.  Both of these ordinances exempted daytime construction noise from noise limitations, and plaintiffs therefore argued the noise analysis did not meaningfully consider noise.  However, the EIR/EIS also included a separate detailed analysis of the construction noise impacts.  The court therefore found substantial evidence existed to support the conclusion that the noise impacts were less than significant because the EIR/EIS did not rely on the exemption in the ordinance and evade doing a separate analysis of construction noise impacts.

Finally, the plaintiffs argued that the EIR/EIS failed to adequately analyze noise impacts associated with expanding the Resort’s snowmaking system.  A plan for the expanded system was submitted with the project, but that plan was not part of the approval granted by the agencies and any specific snowmaking expansion plan would require further approval from the county and TRPA.  The EIR/EIS therefore included a “worst case scenario” to assess and mitigate those impacts.  The court held the EIR/EIS did not improperly defer analysis of the snowmaking expansion’s noise impacts; rather, its program-level analysis provided sufficient detail to allow the public and decision makers to understand and meaningfully consider the impacts.

Written By: Tina Thomas, Amy Higuera and Andrea Lutge (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.