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

Posts Tagged ‘environmental’


Ninth Circuit Ruled in Favor of Tribe, Finding that the US Forest Service Violated the ESA by Giving Permission to Mine in a National Forest

Tuesday, June 12th, 2012

In Karuk Tribe of California v. United States Forest Service, 2012 U.S. App. LEXIS 11145, the Ninth Circuit Court of Appeals held that the Forest Service (Service) violated the Endangered Species Act (ESA) by failing to consult with the appropriate wildlife agencies before approving four notices of intent (NOI). The NOIs gave miners permission to conduct private mining activities, including suction dredging, in the Klamath National Forest. Under Section 7 of the ESA, an agency must consult with wildlife agencies for any “agency action” that “may affect” a listed species or its critical habitat. The court focused on two substantive questions: 1) whether Service’s approval of the NOIs constituted “agency action” within the meaning of Section 7; and 2) whether the approved mining activities “may affect” a listed species or its critical habitat. Answering both in the affirmative, the court remanded the case for entry of judgment in favor of the Karuk Tribe (Tribe).

Before considering the substantive questions, the court addressed the Service’s argument that, due to the statewide moratorium on suction dredge mining, the case was moot. However, the court explained that the moratorium did not prohibit other mining activities at issue in this case, and the moratorium was only temporary. Also, the court found that even though the NOIs the Tribe challenged had already expired, the case could still be heard under the “capable of repetition, yet evading review” exception to the mootness doctrine. Since the Tribe could not feasibly complete litigation before the NOIs expire, and since there is a reasonable expectation that the Service will engage in the challenged conduct again in the future, the court decided to hear the case and rule on its merits.

Turning to the first issue of “agency action,” the court explained that an agency must consult under Section 7 if two criteria are met. First, the agency must make an affirmative authorization. In past cases, the court found that the Service’s approval of an NOI was not merely advisory but rather a final agency action that “marks the consummation of the agency’s decision making process.” Hells Canyon Pres. Council v. U.S. Forest Serv., 595 F.3d 923, 930 (9th Cir. 2010). Based on that case law, along with the Service’s mining regulations and actions, the court determined that the Service had affirmatively authorized the private mining activities to proceed when it approved the four NOIs.

Second, the action must have “discretionary federal involvement or control.” Karuk Tribe of Cal., 2012 U.S. App. LEXIS 11145 at 42. The Service’s actions meet that criterion if the Service could influence a private activity to help a listed species. The court found three ways in which the Service exercised discretion in deciding whether to approve the NOIs: 1) by formulating criteria to protect the Coho salmon; 2) by refusing to approve a NOI because it had insufficient protection of the salmon habitat; 3) by applying different criteria for different areas of the Klamath National Forest. These three examples, along with established case law, supported the court’s finding that the Service’s actions of approving the four NOIs constituted an affirmative, discretionary decision to allow private mining activities to proceed. The Service therefore had a duty to discuss matters with the appropriate wildlife agencies.

The court next found that the approved mining activities “may affect” a listed species and its critical habitat. The court first looked at the record and found ample evidence that the mining activities, especially suction dredge mining, “may affect” Coho salmon. Along with the record, the court explained that by definition, mining activities that require a NOI “might cause” disturbance of surface resources, thus they “may affect” the environment and listed species. The court concluded that because the mining activities clearly “may affect” a listed species and its critical habitat, and because the Service’s actions constituted “agency action,” the Service had a duty to consult under Section 7 before approving the four NOIs. The Service’s failure to do so constituted a violation of the ESA.

Key Point:

This case confirms that, before an agency can conduct an “agency action” that “may affect” a listed species or its critical habitat, it must consult with the appropriate wildlife agencies. Agencies that make an affirmative authorization while retaining discretionary control and also have the capacity to benefit listed species must discuss matters further with expert wildlife agencies.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)___________
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.

Governor Brown Seeks to Insulate California High Speed Rail From CEQA Challenges

Wednesday, June 6th, 2012

Governor Brown’s office has proposed new legislation that would modify the California Environmental Quality Act (CEQA) to limit the circumstances under which a court could issue an injunction or other stop work order on the California High Speed Rail (HSR) project pending the outcome of CEQA litigation.  The proposed legislation aims to protect the HSR project from a halt in construction that could result from recently filed CEQA litigation, including lawsuits filed by the City of Chowchilla and the County of Madera and Madera and Merced County Farm Bureaus, challenging the Environmental Impact Report (EIR) for the portion of the proposed HSR line that will traverse through the Central Valley.  The Legislature will likely consider the proposal in the next month.

For more information on the Governor’s proposal visit: http://www.sacbee.com/2012/06/02/4532775/jerry-brown-moves-to-protect-high.html

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.

Court Denies Attorney’s Fees Where Successful Petitioner Does Not Confer a Significant Benefit to Public and Discharges Writ of Mandate After Compliance

Wednesday, June 6th, 2012

In an unpublished opinion, California Oak Foundation v. County of Tehama (2012) 2012 Cal. App. Unpub. Lexis 3970, the California Third District Court of Appeal affirmed a decision denying petitioner’s request for attorney’s fees on the basis that their successful challenge to a golf course community project, which Tehama County approved in 2006, did not significantly benefit the general public. The court also affirmed the order to discharge a writ of mandate requiring Tehama County to consider certain evidence as it related to I-5 mitigation fees to be imposed on the project.

The court had previously issued a writ of mandate requiring the county to comply with CEQA by considering evidence brought forth by the county’s economic consultant pertaining to I-5 traffic mitigation fees. In 2010, the county reapproved the project without any changes, on the apparent basis that the decline in home prices between 2006 and 2010 made higher fees to mitigate I-5 traffic infeasible.

After the county reapproved the project, petitioner brought suit seeking attorney’s fees incurred during the first case, and also arguing that the trial court improperly discharged the writ because the county employed flawed reasoning when it considered I-5 mitigation fees. The court denied petitioner’s attorney’s fees request. Because the county reapproved the project without any changes, petitioner’s lawsuit conferred no significant benefit to the general public. Because no significant benefit to the general public resulted from their lawsuit, petitioner failed to satisfy a requirement for attorney’s fees to be awarded in such a case. Next, the court held the county acted reasonably when it concluded the lower home prices in 2010 made higher I-5 traffic mitigation fees infeasible. Because the county articulated reasonable grounds for its conclusion that higher I-5 mitigation fees were infeasible, the county complied with CEQA and the writ of mandate was properly discharged.

Written By: Tina Thomas, Chris Butcher 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.

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.

Substantial Evidence Test Applies to Subsequent Environmental Review After a Negative Declaration Has Been Adopted for a Project

Tuesday, May 22nd, 2012

In Abatti v. Imperial Irrigation District (2012) 2012 Cal.App. LEXIS 496, the court considered whether the substantial evidence, rather than the “fair argument,” test applies to determine whether further environmental review is warranted for a subsequent approval where the agency has initially adopted a negative declaration for the project.

In 2006, the irrigation district adopted an “Equitable Distribution Plan” to address the allocation of water in times of shortage, and concurrently approved a negative declaration, which concluded that the plan would not have a significant effect on the environment. The irrigation district then adopted implementing regulations in 2007, and adopted additional regulations in 2008, along with an environmental compliance report, which relied on CEQA Guidelines section 15162 to find that the 2006 negative declaration adequately addressed impacts, and no further CEQA review was required. A group of property owners challenged the 2008 regulations, arguing that an EIR should have been prepared because the regulations substantially changed the way water would be allocated. They asserted that the regulations specifically gave higher priority to geothermal users as opposed to agricultural users.

The court first considered whether it had jurisdiction in light of the fact that appellants had dismissed several non-CEQA claims without prejudice prior to the trial court’s decision on the CEQA claim. The court concluded in the affirmative, finding that a party may appeal from a judgment rendered on a particular claim on a case, regardless of whether certain other claims have been dismissed without prejudice, provided no claims remain pending between the parties.

On the merits, the court first rejected the petitioners’ argument that CEQA Guidelines section 15162 was an invalid regulation. Section 15162 provides that, after an agency has certified an EIR or negative declaration, no subsequent EIR is required unless certain circumstances occur. This section of the Guidelines implements Public Resources Code section 21166, which refers to EIRs, but not negative declarations. The appellate court rejected the petitioners’ challenge, relying on Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, which upheld application of the standards for determining when a subsequent EIR is required for a project that has previously been reviewed when the original CEQA document was a negative declaration.

The appellate court proceeded to apply the substantial evidence test to assess the irrigation district’s determination that the 2008 regulations did not represent a substantial change in the project requiring additional CEQA review. The court found that substantial evidence supported the irrigation district’s determination. A comparison of the 2008 regulations with the pre-existing regulations showed that they were substantially similar and would not, in fact, change the priority preferences in case of water shortage, as petitioners had claimed.

Key Point:

This case affirms an agency’s ability to rely on a negative declaration for subsequent actions related to the project where substantial evidence supports the agency determination that the subsequent action has no new environmental impacts. Of particular note, the court rejected the petitioners’ attempt to characterize Benton as an “outlier” case. Instead the court upheld Benton, noting that numerous courts have agreed with that court’s conclusion that Guidelines section 15162 applies in determining whether further environmental review is warranted where the agency has initially adopted a negative declaration.

Written By: Tina Thomas and Amy Higuera
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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.

Where a Local Government Does Not Endorse Amendments to its Certified Local Coastal Program, the Coastal Commission’s Authority to Adopt such Amendments is Very Narrow

Tuesday, May 22nd, 2012

In City of Malibu v. California Coastal Commission (2012) ___ Cal.App.4th ___, the California Court of Appeal, Second District, considered whether California Public Resources Code section 30515, known as the override provision of the Coastal Act, allows a public works agency to apply to the Coastal Commission to override policies and standards in a locality’s local coastal program merely because it is a public works agency.

The Santa Monica Mountains Conservancy and the Mountains Recreation and Conservation Authority, a joint powers agency of which the conservancy is a constituent member, (collectively, the Conservancy) requested the City of Malibu (City) amend its local coastal program in part to facilitate the Conservancy’s future plans to develop four park properties. In response to the Conservancy’s request, the City amended its local coastal program and submitted it to the Coastal Commission for review. The amendments, however, were not satisfactory to the Conservancy and the Conservancy proposed its own alternative amendments to the Coastal Commission. The Conservancy asserted that section 30515 allows it, as a “person authorized to undertake a public works project,” to request, and for Coastal Commission to adopt, proposed amendments to the City’s certified local coastal program even over the City’s objection. The Coastal Commission agreed with the Conservancy’s interpretation of section 30515 and approved the Conservancy’s amendments instead of those proposed by the City. The City responded by filing a lawsuit arguing that the Coastal Commission abused its discretion by adopting the amendments proposed by the Conservancy over the City’s objections. The trial court agreed and the Conservancy appealed.

On appeal, the Court looked to the plain language of section 30515 and concluded that the statutory interpretation proposed by the Conservancy and Coastal Commission would lead to absurd results. If the conservancy’s interpretation were correct, any public works agency in California would be on “equal footing” with a city to seek Coastal Commission certification of amendments to its local coastal program over the city’s objections. Instead, the Court held section 30515 permits the Coastal Commission to override a locality’s local coastal program where a person applies to the Coastal Commission to actually “undertake a public works project or an energy facility development that would otherwise be prohibited by the local government’s certified [local coastal program.]” The interpretation proposed by the Conservancy and Coastal Commission would permit public works agencies to circumvent the local land use process by rendering the Coastal Commission as the land use decision maker; an interpretation that is not countenanced by the statute. Accordingly, the Coastal Commission lacked jurisdiction to approve the Conservancy’s proposed amendments to the City’s local coastal program because the Conservancy was not proposing to undertake a public works project.

Key Point:

Section 30515 provides a public agency with a procedural recourse to override a local coastal plan only where a public works project or energy facility development is actually undertaken and other very narrow criteria are met.

Written By: Tina Thomas, Chris Butcher 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.

Tolling Agreements to Extend CEQA’s Statute of Limitations during Settlement Discussions are Valid

Tuesday, May 8th, 2012

In Salmon Protection and Watershed Network v. County of Marin (2102) 2012 Cal.App. LEXIS 458, the court considered whether a public agency and a party disputing the adequacy of an EIR could enter into an agreement to toll the statute of limitations setting the time period for filing a CEQA lawsuit to challenge the EIR.

In 2010, Salmon Protection and Watershed Network (SPAWN) filed a petition for writ of mandate alleging the EIR certified by Marin County for the county’s general plan update violated CEQA. The county had certified the EIR three years earlier, in 2007, and subsequently, SPAWN and the county entered into a series of tolling agreements, extending the thirty-day limitation period for filing a challenge to the sufficiency of the EIR. Following filing of the petition in 2010, a group of property owners with interests that could be affected by the outcome of the lawsuit intervened and moved to dismiss the lawsuit, arguing that SPAWN’s 2010 petition was untimely because tolling agreements are invalid under CEQA, and the 30-day limitation period had expired in 2007.

Interveners argued that CEQA provisions requiring the prompt filing of complaints alleging noncompliance, and setting forth shortened time limits for the conduct of litigation evidence a legislative intent that the 30-day limitations period set forth in the Public Resources Code is mandatory and jurisdictional. Interveners therefore argued that any agreement to extend the statutory limitations period was ineffective.

While the court agreed that the CEQA limitations period serves a key policy in favor of prompt resolution of lawsuits alleging noncompliance, the court found that an equally strong public policy favoring settlement of lawsuits. The court further noted that these two policies were not irreconcilable, since in many cases, settlement will resolve the controversy much sooner than could be accomplished by following through with a full trial and appeal. The court therefore held that the tolling agreements were valid and effectively extended the CEQA limitations period.

Key Point:

Tolling agreements have been recognized as an effective tool in resolving litigation by all sides of a typical CEQA dispute, as evidenced by the amicus briefs filed by the League of California Cities, California State Association of Counties, California Building Industry, and Sierra Club, all arguing that the validity of tolling agreements should be upheld. This opinion decides a question that some CEQA practitioners have nonetheless considered uncertain. By answering in the affirmative, parties to a CEQA dispute may now enter into a tolling agreement during settlement negotiations with more assurance that the terms of the agreement extending the limitations period will be upheld.

Written By: Tina Thomas and Amy Higuera
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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.

Constitutionality of AB 900 CEQA Streamlining Challenged in Court

Tuesday, May 8th, 2012

On April 23, 2012, the Planning and Conservation League (PCL) filed a lawsuit challenging the constitutionality of Assembly Bill No. 900 (2011-2012 Reg. Sess.) (see Conservation League v. State of California, RG12626904 (Alameda Sup. Ct.) available at http://www.cnsenvironmentallaw.com/2012/04/26/Conservation.pdf.) AB 900 requires CEQA litigation challenging eligible projects to skip over the superior court and be heard by the Court of Appeal. PCL argues AB 900 violates Article VI, section 10 of the California Constitution, which provides that “[t]he Supreme Court, courts of appeal, superior court, and their judges… have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.” The lawsuit states that “[b]y requiring CEQA petitioners to proceed with original actions in the courts of appeal alone, AB 900 unconstitutionally dispossesses the superior courts and the Supreme Court of their original jurisdiction over these proceedings. In so doing, despite article VI, section 10’s establishment of original mandamus jurisdiction in all California courts, the bill deprives those CEQA litigants who choose to pursue actions in superior court of the opportunity for merits-based appellate review in the courts of appeal. The bill also categorically denies CEQA litigants the opportunity to take their claims directly to the Supreme Court, should those claims qualify for the Supreme Court’s exercise of original jurisdiction.”

PCL’s lawsuit was filed approximately one month after the Judicial Council of California drafted a letter in opposition of Senate Bill No. 1214 (2011-2012 Reg. Sess.). SB 1214 proposed to expand the types of projects that qualify for the streamlining benefits established by AB 900. In its letter opposing SB 1214, the Judicial Council of California stated that it “did not take a position on AB 900 because of the speed with which the bill moved through the legislative process last year. A variety of concerns about this expedited judicial review process were conveyed informally to the Legislature, a number of which have been addressed. Significant concerns remain, however, which subsequently have been identified more fully during the council’s AB 900 rulemaking process.” Among the concerns identified by the Judicial Council of California in its letter is that “providing expedited review directly in the Court of Appeal for some cases while other cases are subject to original jurisdiction in the superior court… undermines equal access to justice. The courts are charged with dispensing equal access to justice for each and every case on their dockets, without regard to the economic position of the parties. Singling out this special category of cases for such preferential treatment appears at odds with how our justice system has historically functioned.”

In its lawsuit, PCL acknowledges that the Court of Appeal has the discretion to exercise original mandamus jurisdiction over CEQA lawsuits. Even if AB 900 is found to violate Article IV, Section 10, of the California Constitution, courts of appeal may be willing to exercise original mandamus jurisdiction over projects that pursue AB 900’s streamlining benefits prior to resolution of the pending PCL lawsuit.

Written By: Tina Thomas and Chris Butcher
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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 holds the Integrated Waste Management Act Does Not Vest a County with Any Authority Over Issuance of a Solid Waste Facilities Permit and, Therefore, the County is Not the Decisionmaking Body for the Purposes of CEQA

Tuesday, May 8th, 2012

In No Wetlands Landfill Expansion v. County of Marin (2012) 2012 Cal.App.LEXIS 330, the First Appellate District reversed the trial court’s determination that CEQA required the Marin County Board of Supervisors to hear an administrative appeal from the Marin County Environmental Health Services’s (Marin EHS) approval of a solid waste facilities permit for the expansion of a landfill. Petitioners argued the Board of Supervisors was the decisionmaking body for the purposes of CEQA because Marin County Guidelines required the Planning Commission to review the EIR and Planning Commission decisions are reviewable by the Board of Supervisors. Petitioners also argued the Board of Supervisors was the decisionmaking body because the Integrated Waste Management Act authorizes the Board of Supervisors to appoint a hearing panel or officer in the event a non-mandatory administrative appeal is filed, and that the Board of Supervisors may even appoint three of its own members as the panel.

The Court was not persuaded and concluded that because the Board of Supervisors is not the entity with the ultimate decisionmaking power to approve the EIR it was of no consequence that the Planning Commission reviewed, and provided recommendation on, the EIR. The Court also explained that the existence of an appeal panel that may include some, but not all, members of the Board of Supervisors, did not provide the Board as a whole with some form of decisionmaking power concerning the EIR or permit. Therefore, the Court remanded the matter to the trial court and directed the court to address the petitioners’ challenges to the EIR on its merits.

Key Points:

The Court declined the City’s request for the Court to address the merits of the petitioners’ CEQA claims because the Court concluded the causes of action challenging the adequacy of the EIR are properly committed to the trial court for its resolution. Article VI, Section 10, of the California Constitution provides the Supreme Court, courts of appeal, and superior courts with original jurisdiction in proceedings for extraordinary relief in the nature of mandamus. Therefore, a court of appeal could elect to resolve substantive CEQA claims that a trial court has not previously addressed. Such review by a court of appeal would serve to facilitate the Legislature’s goal that CEQA litigation “be quickly heard and determined.” (Pub. Resources Code, § 21167.1, subd. (a).)

Written By: Tina Thomas and Chris Butcher
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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.

Third Appellate District Grants Partial Publication of CEQA Decision Relating to Agricultural Mitigation, Urban Decay, Res Judicata, and the Deliberative Process Privilege

Wednesday, April 25th, 2012

In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit for a proposed shopping center to be anchored by a Wal-Mart Supercenter (Project) after the original EIR for the Project was revised and recertified. The trial court denied Petitioners’ writ and the Third Appellate District affirmed.

The appellate court found the trial court abused its discretion in permitting the City of Lodi to withhold various emails pursuant to the deliberative process privilege because the City did not meet its burden of proof that the doctrine was applicable. However, the Court concluded that Petitioners failed to meet their burden to show that the City’s improper exclusion of the emails from the administrative record constituted prejudicial error. The Court explained that to show prejudice Petitioners should have sought writ review of the trial court’s decision to exclude the emails. Because it failed to do so, Petitioners were not entitled to reversal on appeal for this error.

In an unpublished portion of the decision, Petitioners argued that other documents withheld as attorney-client privilege lost such privileged status after the City shared the documents with the Real Parties. The Court disagreed. The Court explained that it did not matter whether the documents were shared with the Real Parties’ attorneys or the Real Parties directly: “It was still communication between parties on the same side of the litigation aimed at sharing information with one another to produce an EIR that would withstand a legal challenge for noncompliance with CEQA.”

Turning to the substantive adequacy of the revised EIR, Petitioners alleged that the EIR failed to adequately address urban decay, agricultural, climate change, and water supply impacts, and that the EIR failed to include a reasonable range of alternatives. The Court did not publish the portions of its decision addressing the substantive merits of Petitioners climate change and water supply claims. The Court did, however, publish the portion of its decision addressing the relationship of the Doctrine of Res Judicata to Petitioner Lodi First’s challenge to the water supply analysis. Each of the published portions of the decision is addressed below.

The Court held that the record contained sufficient evidence to support the conclusion that the revised EIR included a reasonable range of alternative. Based on the rule of reason and an understanding that CEQA provides no ironclad rule governing the nature or scope of alternatives, the Court concluded the City’s failure to identify a feasible alternative that could achieve most of the project objectives and avoid or significantly reduce the Project’s significant and unavoidable impacts was not error. The EIR considered five alternatives (no project, alternative land use, reduced density, reduced size, and alternative location). Reduced density and alternative land use alternatives were rejected from detailed consideration in the revised EIR. The Court upheld the City’s decision to reject these alternatives from detailed consideration. The Court explained, based on the facts in this case, that the City was not required to analyze an alternative that was inconsistent with the zoning for a project site and that substantial evidence supported the conclusion that the reduced density alternative was not economically feasible. The Court also held that the three alternatives that were analyzed in detail within the EIR (no project, reduced size, and alternative location) constituted a reasonable range of alternatives. Lastly, the court determined that substantial evidence supported the City’s rejection of the environmentally superior alternatives (no project and reduced size) because the record demonstrated that neither alternative would entirely fulfill the applicant’s or City’s objectives.

In the published portion of the opinion addressing urban decay, the Court held that the revised EIR did not need to address urban “blight” conditions. The Court concluded that the record demonstrated that urban decay and urban blight are two separate phenomena. The record demonstrated that deteriorated homes and other existing blighted properties in the Project area have no relationship to the condition of the retail environment, which needed to be evaluated to consider the Project’s potential urban decay impact. Therefore, the Court concluded that the baseline used to analyze potential urban decay impacts of the Project was not required to disclose urban blight within the Project vicinity.

The Court also affirmed the trial court’s ruling that it was proper for the City to rely on the economic baseline from 2006 and 2007 (the baseline at the time the NOP was published) in evaluating urban decay impacts in the revised EIR. The court reviewed the City’s determination not to update the baseline for an abuse of discretion. Based on this standard, the Court concluded the City was not required to update the baseline because evidence in the record demonstrated that updating the baseline was problematic as economic conditions are rapidly changing and these rapidly changing conditions did not affect the urban decay findings. Therefore, the Court held the City did not abuse its discretion in declining to update the economic baseline.

With respect to Petitioners’ challenge to the adequacy of the agricultural mitigation ratio adopted by the City, the Court concluded Petitioners’ argument demonstrated a misunderstanding of CEQA. The City concluded that no feasible mitigation could reduce impacts to agriculture to a less than significant level. Specifically, the EIR explained that because agricultural conservation is not true mitigation no level of conservation can be scientifically justified as correct and the level of mitigation is a matter of local concern. For this reason, the Court explained that the question is not whether substantial evidence supported the determination that a greater mitigation ratio was infeasible. The question is whether substantial evidence supported the conclusion that no feasible mitigation was available. The Court found the record included such evidence.

In rejecting the water supply arguments advanced by one of the Petitioners, the Court held that the claim was barred by the doctrine of res judicata. As explained by the Court, res judicata applies and bars a petitioner from re-litigating issues that were or could have been previously litigated where the prior proceeding is final on the merits and the present proceeding is on the same cause of action as the prior proceeding. Here, there was no dispute that the prior proceeding was final on the merits and the conditions and facts upon which the new proceeding was based were not materially different from the original proceeding. Therefore, because Petitioner could have raised its water supply claims in the prior proceeding, res judicata barred the claim in this proceeding.

Lastly, in the unpublished portion of the opinion addressing climate change, the Court found that the revised EIR failed to properly analyze potential climate change impacts. The Court stated that an EIR cannot refuse to analyze an impact based on the conclusion that it would be speculative. Rather, an EIR must disclose after thorough analysis of an issue the reasons further analysis is considered too speculative for evaluation. However, the Court found that the City prepared the required climate change analysis after the FEIR was released to the public. While this approach violated CEQA, a CEQA violation only invalidates an EIR if it is prejudicial. The Court concluded that CEQA Guidelines section 15088.5, subdivision (a)(4), only requires recirculation when an EIR is fundamentally and basically inadequate and conclusory. Here, only a portion of the EIR was fundamentally and basically inadequate. The Court concluded this flawed portion was not significant because the climate change analysis prepared after the FEIR was released demonstrated that the Project would not have a significant impact on climate change. The record included no evidence submitted before or after the study was produced to support the conclusion that climate change impacts were significant. Therefore, the City’s failure to analyze climate change impacts in the EIR was not prejudicial.

Key Points:

Where no level of mitigation will reduce an impact to less than significant, the mitigation measure(s) adopted by the lead agency to reduce the impact to the extent possible constitutes a policy determination that will be upheld if supported by substantial evidence.

To utilize the deliberative process doctrine to withhold documents from inclusion in the administrative record, the lead agency must ensure that the record supports the conclusion that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Lastly, in CEQA litigation in which a petitioner challenges both an original EIR and revised EIR, res judicata bars the litigation not only of issues that were actually litigated in the original lawsuit but also issues that could have been litigated.

Written By: Tina Thomas and Chris Butcher
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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.