In a key decision, the Sixth District has rejected the Surface Mining and Reclamation Act and CEQA challenges to Lehigh’s Permanente Quarry reclamation plan amendment and related EIR. Arthur F Coon at law firm Miller Starr Regalia explains the case.
In a published opinion filed August 31, 2016, the Sixth Appellate District Court of Appeal rejected claims under CEQA and the Surface Mining and Reclamation Act (“SMARA”; Pub. Resources Code, §§ 2700, et seq.), and affirmed the denial of a writ petition challenging Santa Clara County’s 2012 EIR and related approval of a reclamation plan amendment for the Permanente Quarry. Bay Area Clean Environment, Inc. v. Santa Clara County (Lehigh Southwest Cement Company, et al., Real Parties in Interest) (2016) Cal.App.5th, 2016 WL 9540085.
The plan amendment governs (over a 20-year period) the closing and reclaiming of the Quarry, which has conducted limestone and aggregate surface mining operations since 1903 in the unincorporated County. The Quarry has expanded from about 1,300 acres when the Permanente Corporation purchased it in 1939 to its current 3,510 acres. It includes a central rock/limestone mining pit, a rock crushing area, and administrative offices all located within the upper portion of the Permanente Creek watershed; the creek flows east and borders the Quarry pit’s south side before leaving the Quarry property and running to the bay.
In 2006, the Department of Conservation found the Quarry in violation of SMARA because its initial 1985 reclamation plan, intended to be updated in 25 years, did not adequately address slope instability issues. Additionally, the Quarry’s mining operations, which exposed limestone to oxygen and water, caused elevated downstream selenium levels that could harm aquatic life. Real party/Quarry owner Lehigh filed three applications to amend the 1985 reclamation plan between 2007 and 2011, the first two of which proposed new mining areas in conjunction with reclamation of the existing mining pit. While the 2010 amendment application proposed a new “South Quarry” pit, the final July 2011 application which was the subject of the litigation, dropped that proposal.
The County’s Board of Supervisors approved the reclamation plan amendment and certified the related EIR following an administrative appeal from the Planning Commission’s earlier decisions doing likewise. Bay Area Clean Environment, Inc. (“Bay Area”) filed a writ of mandate action, alleging SMARA and CEQA claims, and the Midpeninsula Open Space District (“MOSD”) filed a CEQA action challenging the plan amendment approval and related EIR. Judgment was entered denying both petitions; both plaintiffs appealed; MOSD settled; and the Court of Appeal affirmed the judgment against Bay Area.
Key takeaways from the Court of Appeal’s published opinion include:
“Approval of a reclamation plan under SMARA is reviewed for abuse of discretion pursuant to Code of Civil Procedure section 1094.5” and the courts “consider all reasonable inferences from the administrative record in favor of the agency.”
The administrative record supported County’s finding that the plan amendment complied with SMARA’s water quality standards. Expert reports, including a Golder Associates hydrologic investigation and a water quality report analyzing the Golder report’s data prepared by Strategic Engineering & Science, Inc., projected the plan amendment’s strategies — including backfilling the Quarry pit with fill containing mixed organic matter and placing non-limestone material on exposed limestone areas — would ultimately reduce the Quarry’s release of selenium and result in water quality meeting acceptable standards. Contrary to Bay Area’s argument, the County had discretion under SMARA to adversely affect water quality during the 20-year interim implementation period of a reclamation plan, including allowing additional selenium deposits in the water as necessary to complete the plan.
The plan amendment also complied with SMARA’s wildlife habitat preservation provisions despite the fact that it did not specifically mention the federally-protected California red-legged frog, which was found in the lower creek segment outside the plan amendment’s boundary in 1997. The reclamation plan amendment’s appendix contained a “Biological Resources Assessment” study describing the frog’s habitat and the results of surveys within the Quarry vicinity, concluding “that because the frog was not found within the reclamation plan amendment boundaries, it would not be directly affected by the reclamation activities[,]” and nonetheless “provid[ing] protective measures such as pre-construction surveys and daytime only work to limit the potential risk of harming the frog if it swam upstream into Permanente Creek.”
The EIR also analyzed potential downstream selenium impacts to wildlife, including the frog, and recommended mitigation measures; because the measures were of uncertain efficacy, the County found selenium runoff impacts significant and unavoidable even after imposing suggested mitigation measures. Per the Court: “[T]he record supports the conclusion that impacts of the reclamation activities on the frog … were considered by the County, and were mitigated to the extent possible under the circumstances.”
The Court also held that a formal determination of the Department of Conservation (“DOC”) “that the reclamation plan amendment complied with SMARA constitutes substantial evidence upon which the County [properly] relied in its findings.” The conclusion of the DOC — “a state agency that oversees the administration off SMARA in reclamation plans” — was based on statements made to it by the Office of Mining Reclamation.
The Court also rejected Bay Area’s CEQA challenges to the EIR’s cumulative impact analysis and the County’s CEQA findings. After setting forth the various findings required by CEQA for project approval, the Court summarized: “Thus, a public agency is not required to favor environmental protection over other considerations, but it must disclose and carefully consider the environmental consequences of its actions, mitigate adverse environmental effects if feasible, explain the reasons for its actions, and afford the public and other affected agencies an opportunity to participate meaningfully in the environmental review process. The purpose of these requirements is to ensure that public officials and the public are aware of the environmental consequences of decisions before they are made.” (Quoting Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1197-1198.)
After summarizing the purposes of an EIR under CEQA, and the two prongs of a reviewing court’s “prejudicial abuse of discretion” inquiry — i.e., (1) “failure to proceed” as required by law and (2) “substantial evidence” review — the Court recited a number of legal principles applicable to judicial review of an EIR. These included that a “court does not pass upon the correctness of [an EIR’s] environmental conclusions, but only upon its sufficiency as an informative document”; a court “may not set aside an agency’s approval of an [EIR] on the ground that an opposite conclusion would have been equally or more reasonable”; “[a]n appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case … is the same as the trial court’s … [in that it] reviews the agency’s action, not the trial court’s decision [and] in that sense appellate judicial review under CEQA is de novo.” (Quoting In re Bay-Delta, etc. (2008) 43 Cal.4th 1143, 1161-1162.) Further, reasonable inferences are indulged and evidentiary conflicts resolved in support of the agency’s decision, and courts “presume regular performance of official duty,” including certification of an EIR, with the challenger having the burden to establish otherwise.
Importantly, “all factual determinations are reviewed according to the substantial evidence standard” (citing Vineyard Area Citizens For Responsible Growth, Inc. v. City of Ranch Cordova (2007) 40 Cal.4th 412, 426-427, 435), which “applie[s] to conclusions, findings and determinations” and also “to challenges to the scope of an [EIR’s] analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the [EIR] relied because these types of challenges involve factual questions.” (Quoting Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198.) A further “important proviso” applicable to all substantial evidence challenges is that: “[A]n appellant challenging an [EIR] for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellants’ failure to carry his burden.” (Quoting Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.)
The Court rejected Bay Area’s argument that the reclamation plan amendment EIR was inadequate — and violated CEQA’s rules against “segmentation” of a project (also known as “piecemealing”) – because it did not analyze the cumulative impact of the new quarry pit proposed in Lehigh’s earlier but withdrawn applications as a “reasonably foreseeable future project.” Per the Court: “The record contains no support for Bay Area’s assertion that the County segmented the review of the reclamation plan amendment. The application for a use permit for the South Quarry was withdrawn before the final iteration of the reclamation plan amendment was subjected to the environmental impact report. The new pit (if it were a subsequent project) would not change the scope o[r] the nature of the reclamation of the North Quarry pit or the reclamation’s environmental effects.
The reclamation plan amendment in this case is a stand-alone project and does not require approval of a future project such as the South Quarry pit for reclamation of the North Quarry to occur.” The Court distinguished City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, a case cited by Bay Area, as involving an infrastructure project whose “sole and exclusive purpose” was “to provide a catalyst for further development in the immediate area.” Whereas the City of Antioch infrastructure project “had no independent utility” and by its approval the agency had “committed itself to the [future development,]” “the reclamation plan amendment is not a first phase in a larger development[,]” but, rather, “the complete process by which the North Quarry will be reclaimed, and does not require approval of other future projects to be completed.”
Applying the principles of judicial review recited above, the Court also rejected Bay Area’s “substantial evidence” challenges to the County’s EIR certification findings and its statement of overriding considerations. The gist of these challenges was that the findings failed to adequately address the project’s significant impacts on the frog.
The Court held the EIR’s conclusion that direct impacts on the frog were less than significant was supported by substantial evidence in the record showing the frog was unlikely to swim upstream into the Project area; given this finding, no additional findings were required to address a significant impact, as none was found to exist. The EIR found potential indirect impacts to downstream aquatic species (including the frog) from selenium runoff to be significant and unavoidable, and consequently described in detail mitigation measures to address the impacts; these findings, too, were supported by substantial record evidence. The Court held that CEQA did not require the County’s “statement of overriding considerations [to address the frog] because the potential direct impacts to the frog were found to be less than significant.” (Emph. added, citing 14 Cal. Code Regs., § 15093.)
Finally, the Court held the trial court did not err in granting Lehigh’s motion to augment the record to include emails between Dr. Mark Jennings, a herpetologist who contributed frog studies and reports during the CEQA review process, and David Johnston, a California Department of Fish and Wildlife employee. The emails discussed inconsistencies in Dr Jenning’s reports concerning his observations of the frog in Pond 13, which is located within the reclamation plan amendment’s boundaries, and clarified that the asserted observation was mistaken and likely resulted from a typo on the Quarry map’s numbering. Per the Court, the emails were properly part of the administrative record under Public Resources Code § 21167.6(e)(10), which sets forth the included category of “any other written materials relevant to the respondent public agency’s compliance with [CEQA] or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with [CEQA].”
Here, per the Court, the emails were properly included in the record because “Jennings wrote the email in 2009, and that email was communicated to the firm that prepared the biological resources assessment for the environmental review process. The draft [EIR] relied upon the biological resource[s] assessment in stating its findings. Evidence of the presence or absence of the frog in the reclamation area that was relied upon by the firm completing the biological study for the environmental review process falls within the parameters of Public Resources Code section 21167.6, subdivision (e) for inclusion in the administrative record.”
This published decision serves as a good reminder of the deferential standards and principles of judicial review applicable to “substantial evidence” challenges to the analysis, methodology and conclusions of an EIR where factual, technical and scientific issues are involved. There is nothing novel about the Court’s decision in this regard or with respect to its CEQA segmentation, administrative record, or SMARA legal analyses.
Its apparent holding that the County’s statement of overriding considerations was not required to address what the County found (due to the uncertain efficacy of the required mitigation measures) to be significant and unavoidable indirect project impacts on the frog and other downstream aquatic species is interesting in the abstract, although it is also completely understandable given the nature of the project at issue here.