Douglas R. Roeca for Plaintiff and Appellant.
Bruce A. Kimzey, Deputy County Counsel, for Defendants and Respondents.
Remy & Thomas, Tina A. Thomas and James G. Moose for Real
Party in Interest and Respondent.
Oro Fino Gold Mining Corporation (Oro) appeals from a judgment
denying its petition for writ of mandate. In that petition, Oro
sought to overturn a decision of the El Dorado County Board of
Supervisors (Board) denying Oro a special use permit for a mineral
exploration project. In denying the permit, the Board found that
it can be fairly argued that the project may have a significant
environmental impact. Accordingly, the Board determined that before
Oro's permit application could be reconsidered, an environmental
impact report (EIR) would have to be drafted. [FN1]
FN1 Oro sued El Dorado County, its board of supervisors
and its planning commission. Where appropriate, we will refer
collectively to these entities simply as the County. Also named
in Oro's suit-as the real party in interest-was the Motherlode
On appeal Oro contends that both the Board and the Motherlode
Alliance (MLA) are collaterally estopped from litigating the issues
in this case. Oro also contends that it cannot be fairly argued
on the basis of substantial evidence that the project as mitigated
may have a significant environmental impact. We disagree with
these contentions and shall affirm the judgment.
In September 1987, Oro applied to the County for a special use
permit for a mineral exploration project. The project entailed
drilling exploratory holes on a 717-acre section in the Big Canyon
Creek area. The proposed exploration area lies along the western
foothills of the Sierra Nevada Mountains about 35 miles east of
Sacramento, 6 miles southwest of Placerville, and just south of
the community of Shingle Springs.
The project envisioned no more than 30 holes, each of which was
to be no larger than 7 inches in diameter and 2,000 feet deep.
The drilling methods were diamond core, rotary and percussion.
No blasting was proposed.
Actual drilling was limited to two sites in the seven hundred
and seventeen- acre section, each approximately one acre. These
sites were located in the northern and southern portions of the
717-acre section. Numerous single family homes and small structures
bordered or were near the northern drill site.
About four years before the Oro proposal was considered, the Gold
Fields Mining Corporation (Gold Fields) had conducted a similar
mineral exploratory drilling project based on a special use permit.
That permit was granted by a deeply divided Board based upon a
mitigated negative declaration subject to 37 conditions. The conditions
concerned groundwater and surface water quality, air quality,
noise, reclamation, erosion, fire danger, and toxic substances.
The Gold Fields permit allowed the drilling of up to 300 holes
in the same dimensions as the Oro application. Gold Fields, however,
drilled only 34 holes. In contrast to Oro's proposed drilling,
Gold Fields drilled in a number of areas across much of the 717-acre
In considering the Oro application, the County planning department
staff prepared an environmental initial study in November 1987.
Twenty-one potential environmental impacts were identified. These
impacts included soil erosion, air deterioration, groundwater
quality, well water depletion, wildlife habitat deterioration,
increase in ambient noise and exposure to severe noise levels,
fire danger, and increased motor traffic. The planning department
staff recommended granting Oro's permit application subject to
a mitigated negative declaration incorporating a set of conditions
similar to the Gold Fields project. The staff determined that
"although [Oro's] proposed project could have a significant
effect on the environment, there [would] not be a significant
effect in this case" because of the mitigation measures.
In January and February of 1988 the planning commission (Commission)
heard Oro's permit application. The Commission unanimously rejected
the staff recommendation of a mitigated negative declaration.
Finding the environmental documentation inadequate, the Commission-again
unanimously-determined that any further consideration of the application
required that an EIR be prepared. The report was to focus on "water
quality, noise, dust, lights, traffic and toxic/solid waste."
On this basis the Commission denied the application without prejudice.
Oro appealed the Commission's decision to the Board, basically contending there was no evidence before the Commission to require an EIR. Over a period of two days in March 1988, the Board heard the appeal essentially de novo. Both Oro and the project's opponents presented documentary evidence and testimony at the hearing. The Board unanimously denied the permit application, finding that the project's opponents had made a fair argument that the project may have a significant environmental impact. The Board determined that an EIR should be prepared addressing (1) the concerns raised by the citizens in the area, (2) a "no project alternative" in light of the Gold Fields's core samples, and (3) the land use conflicts between the proposed project and the existing and planned uses in the area. Both the Commission and the Board heard substantial testimony in opposition to the project from members of the public. No less than 50 letters opposing the project-often signed by multiple parties-were also sent to County officials.
Oro petitioned the superior court for a writ of mandate to set
aside the Board decision and to order the permit application approved
under the mitigated negative declaration recommended by planning
staff. In June 1989 the court denied the petition. The court found
there was substantial evidence to support the Board's determination
that a fair argument can be made that the project may cause a
significant environmental effect.
We first consider Oro's contention that the County and MLA are
collaterally estopped from litigating the issues in this case.
When the Board in early 1984 approved the Gold Fields special
use permit upon a mitigated negative declaration, MLA unsuccessfully
petitioned for a writ of mandate to overturn that decision. (Motherlode
Alliance v. County of El Dorado, Gold Fields (Super. Ct. El Dorado
County, 1984, No. 43082).) [FN2]
FN2 The No. 43082 action was judicially noticed in the
present action by the trial court.
Collateral estoppel can be invoked against a party to a prior
action by a nonparty if three conditions are met: (1) the issue
in the prior action and the current action is identical; (2) there
was a final judgment on the merits in the prior action; and (3)
the party being collaterally estopped was a party, or in privity
with a party, in the prior action. (Bernhard v. Bank of America
(1942) 19 Cal.2d 807, 811-813 [122 P.2d 892].)
Oro asserts the issue in the Gold Fields litigation was whether
a fair argument had been made that an EIR was warranted. Oro argues
the identical issue is posed in this case, and both the MLA and
the County were parties to the Gold Fields case in which a final
judgment was rendered. Consequently, Oro argues, it is entitled
to proceed-as did Gold Fields-on a mitigated negative declaration.
This argument's success depends ultimately upon the similarity
between the Oro and the Gold Fields drilling projects. Oro recognizes
this point. In fact, Oro argues that its project is the same as
the Gold Fields project except its project has less environmental
impact. The Gold Fields permit allowed up to 300 holes and 8 drilling
rigs. In contrast, the Oro permit allows a maximum of only 30
holes and 4 drilling rigs.
This argument has a certain appeal on its surface. However, we
are sure Oro will understand if we dig a bit deeper. In doing
that, we find there are a number of material distinctions between
the Oro and the Gold Fields drilling projects.
First, there are the drilling sites. Gold Fields drilled in many
areas across the 717-acre Oro section. In contrast, Oro plans
to drill in just two small areas-each about one acre in size-in
the northern and southern portions of the section. Gold Fields
drilled about seven holes in that northern portion but no holes
in Oro's proposed southern site. In fact, Gold Fields could not
drill in that southern site because the site is situated within
103 acres not in the Gold Fields project. The northern site is
the critical one because many residences are located nearby. Gold
Fields drilled primarily in the eastern and southern portions
of the 717-acre section, away from residential development. Maps
submitted with Oro's permit application indicate the northern
site will be Oro's focus. Consequently, Oro's drilling plans are
significantly more concentrated-both in area and in residential
impact-than the Gold Fields project.
The preceding facts take on an added significance given the substantial
population growth in the Shingle Springs area since the Gold Fields
project ended (about six years ago). This additional population
also implicates concerns regarding traffic congestion and safety,
groundwater quantity and quality, noise, and fire danger.
Another important difference between the Oro and the Gold Fields
projects is drilling methods. Permit applications for both projects
listed those methods as diamond core, rotary and percussion. While
Gold Fields evidently did not engage in percussion drilling, there
is evidence from Oro's geologist and from the planning department
staff that Oro intends to use the percussion technique to drill
larger holes than Gold Fields drilled. Oro attempts to disclaim
this, relying on an environmental assessment form that does not
list the percussion method. However, in Oro's permit application
and in all of the project descriptions before the pertinent authorities,
the percussion method is listed. The percussion method is an important
factor because apparently it is the noisiest drilling method.
A condition attached to the Gold Fields project but not to the
Oro project highlights the distinction between the two. Gold Fields
could not drill "closer than 500 feet from the north boundary
of the project property, and in no case ... closer than 500 feet
from the nearest residences which are not within the project property."
That condition was not made a part of the proposed mitigated negative
declaration for Oro. There is evidence that Oro's proposed northern
drill site is within 500 feet of certain residences.
These distinctions render the doctrine of collateral estoppel
inapplicable under the "identical issue" requirement
of Bernhard. (19 Cal.2d at p. 813.)
We now consider Oro's claim that it cannot be fairly argued on
the basis of substantial evidence that Oro's mitigated project
may have a significant environmental impact.
The California Environmental Quality Act (CEQA) (Pub. Resources
Code, § 21000 et seq., § 21050) [FN3] requires
government agencies to prepare or contract to prepare an EIR for
any project they carry out or approve which "may have a significant
effect on the environment." (§ 21151; Friends of "B"
Street v. City of Hayward (1980) 106 Cal.App.3d 988, 999 [165
Cal.Rptr. 514].) According to our Supreme Court, "the Legislature
intended [CEQA] to be interpreted in such manner as to afford
the fullest possible protection to the environment within the
reasonable scope of the statutory language." (Friends of
Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104
Cal.Rptr. 761, 502 P.2d 1049]; see also Laurel Heights Improvement
Assn. v. Regents of University of California (1988) 47 Cal.3d
376, 390 [253 Cal.Rptr. 426, 764 P.2d 278].) Since the preparation
of an EIR is the key to environmental protection under CEQA-indeed
constituting the very heart of the CEQA scheme-accomplishment
of CEQA's high objectives requires the preparation of an EIR "whenever
it can be fairly argued on the basis of substantial evidence that
the project may have significant environmental impact." (No
Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 84 [118
Cal.Rptr. 34, 529 P.2d 66]; Sundstrom v. County of Mendocino (1988)
202 Cal.App.3d 296, 304 [248 Cal.Rptr. 352].)
FN3 Further statutory references to sections of an undesignated
code are to the Public Resources Code.
Accordingly, the critical question for us is whether there is
substantial evidence in light of the whole record to support the
Board's determination that it can be fairly argued that Oro's
project may have a significant environmental impact. As explained
in Friends of "B" Street: "If there was substantial
evidence that the proposed project might have a significant environmental
impact, evidence to the contrary is not sufficient to support
a decision to dispense with preparation of an EIR and adopt a
negative declaration, because it could be 'fairly argued' that
the project might have a significant environmental impact."
(106 Cal.App.3d at p. 1002; Newberry Springs Water Assn. v. County
of San Bernardino (1984) 150 Cal.App.3d 740, 747-748 [198 Cal.Rptr.
100]; City of Antioch v. City Council (1986) 187 Cal.App.3d 1325,
1331 [232 Cal.Rptr. 507]; § 21168; El Dorado County Code,
§ 17.22.040.) Consequently, there is "a low threshold
requirement for preparation of an EIR." (No Oil, Inc. v.
City of Los Angeles, supra, 13 Cal.3d at p. 84; Sundstrom v. County
of Mendocino, supra, 202 Cal.App.3d at pp. 309- 310.) [FN4]
FN4 As noted by this court in Perley v. Board of Supervisors
(1982) 137 Cal.App.3d 424, 433-434, footnote 4 [187 Cal.Rptr.
53], there was some question about the proper standard of review
as articulated in the conflicting cases of Pacific Water Conditioning
Assn., Inc. v. City Council (1977) 73 Cal.App.3d 546, 558 [140
Cal.Rptr. 812] and Friends of "B" Street, supra, 106
Cal.App.3d at pages 1001-1002. This is no longer true. The district
and division that decided Pacific Water Conditioning Assn., Inc.
adopted the Friends of "B" Street standard in Newberry.
(150 Cal.App.3d at pp. 747-748.)
CEQA establishes specific procedures governing the preparation
of an EIR. If the project is in one of CEQA's exempted categories
or if it is certain not to have an environmental effect, "no
further agency evaluation is required." (Friends of "B"
Street, supra, 106 Cal.App.3d at pp. 999- 1000.) If the project
is not exempt and if "there is a possibility that the project
may have a significant environmental effect, the agency must conduct
an initial threshold study. [Citation] If the initial study reveals
that the project will not have such effect, the ... agency may
complete a negative declaration ...." (Id. at p. 1000.) If
the initial study reveals the project "may" have a significant
environmental effect, an EIR must be prepared; the word "may"
connotes a reasonable possibility. (Ibid.; No Oil, Inc. v. City
of Los Angeles, supra, 13 Cal.3d at pp. 74, 83, fn. 16; Sundstrom
v. County of Mendocino, supra, 202 Cal.App.3d at p. 309.) A "significant
effect on the environment" is defined as "a substantial,
or potentially substantial, adverse change in any of the physical
conditions within the area affected by the project including land,
air, water, minerals, flora, fauna, ambient noise, and objects
of historic or aesthetic significance. An economic or social change
by itself shall not be considered a significant effect on the
environment." (Cal. Code Regs., tit. 14, § 15382 (hereafter
Guidelines); see also § 21068.)
We now apply these principles to the facts of this case. We first
consider the mitigated project's impact on noise levels.
Oro relies on an acoustical analysis of the Gold Fields project
and argues simply that the proposed mitigated negative declaration
prohibits noise levels above the applicable county general plan
noise standard maximum of 50 dBA (decibel A-weighted). Accordingly,
Oro asserts there is no issue regarding noise.
Initially, we note that conformity with a general plan does not
insulate a project from EIR review where it can be fairly argued
that the project will generate significant environmental effects.
(City of Antioch v. City Council, supra, 187 Cal.App.3d at p.
The acoustical analysis on the Gold Fields project involved a
single diamond core drilling rig with a standard muffler. At 50
feet the rig emitted 83 dBA. The standard practice in noise analyses
is to use the "inverse-square" rule of sound propogation,
which is quite accurate within 1,000 feet of the noise source.
This rule posits a 6 dBA noise reduction for each doubling of
distance between source and receiver. Using the Gold Fields analysis-upon
which Oro relies-we find that 65 dBA are emitted at 400 feet from
the source and 59 dBA at 800 feet. In fact, at nearly a third
of a mile away (1,600 feet) the applicable maximum noise standard
is still being exceeded at 53 dBA. There are a number of residences
within these distances to Oro's proposed northern drill site.
Furthermore, there is substantial evidence that Oro intends to
use percussion drilling, a noisier method than diamond core drilling.
And Oro, unlike Gold Fields, is concentrating its drilling on
two small sites.
Oro maintains, however, that under the proposed mitigated negative
declaration its drilling noise simply cannot exceed the county
standard of 50 dBA measured from a point which is 50 feet from
the residence in question. Based on planning department data,
Oro argues that only two noise complaints were made on the Gold
Fields project and "worse case" analyses of those complaints
indicated noise standards were not exceeded. These arguments would
carry weight if the evidence showed the noise standards were monitored
and enforced vigorously. But numerous residents testified at the
Commission and the Board hearings that they made multiple complaints
to pertinent county officials about the noise from the Gold Fields
project. Other residents echoed this testimony in letters to the
Commission and the Board. Relevant personal observations such
as these can constitute substantial evidence. (Citizens Assn.
for Sensible Development of Bishop Area v. County of Inyo (1985)
172 Cal.App.3d 151, 173 [217 Cal.Rptr. 893]; cf. Perley v. Board
of Supervisors, supra, 137 Cal.App.3d at pp. 433-437.) The Board-and
not this court-determines the weight of this evidence. (Citizens
Assn. for Sensible Development of Bishop Area, supra; Newberry
Springs Water Assn. v. County of San Bernardino, supra, 150 Cal.App.3d
at p. 750.)
Oro's traffic expert concluded the project would not have a significant
impact on traffic given the mitigation measures of avoiding commute
and school bus schedules and moving large equipment with pilot
car accompaniment. That conclusion rested in part on the limited
duration of the typical exploratory mining project. However, the
mitigated negative declaration allowed Oro a three-year project.
Moreover, numerous area residents provided evidence of increased
traffic and traffic mishaps. Much of the testimony noted that
the roads in the area were few, mountainous and narrow. The rapid
population growth in recent years, especially among school-age
children, was also noted. Again, these were matters within the
personal knowledge of the area's residents and constituted evidence
for the Board's consideration. (Citizens Assn. for Sensible Development
of Bishop Area, supra, 172 Cal.App.3d at p. 173.)
As envisioned throughout the permit application process, the Oro
project would use 2,000 gallons of water per day to be drawn from
a well on project property and from an old mine (Big Canyon Mine).
Near the end of the final day of Board hearings on the application,
however, the Oro representative for the first time stated that
Oro no longer had the rights to the well on the project property
and would be drawing all needed water from the Big Canyon Mine.
Nothing further was stated about this change. The proposed mitigated
negative declaration was drafted when the well was a water source.
A substantial water source is a critical element in the drilling
Furthermore, there was substantial concern about groundwater contamination.
The residents near the northern drilling site use well water.
While mere concern does not constitute admissible evidence (see
Perley v. Board of Supervisors, supra, 137 Cal.App.3d at pp. 433-437),
there were some factors the Board could consider. The Oro project
encompassed more drilling near residential development than the
Gold Fields project. There was evidence Oro planned to drill larger
holes than Gold Fields drilled. The typical exploratory mineral
drill hole is much deeper than the typical water well. Oro could
drill to 2,000 feet pursuant to the mitigated negative declaration.
A Board supervisor with knowledge about the relationship between
drilling and groundwater contamination, Supervisor Dorr, noted
on the record that drilling creates pathways for contaminants
to travel to aquifers. Groundwater conditions under the Oro drill
sites are unknown. A Board supervisor with drilling experience,
Supervisor Sweeney, found it incredulous that there were no boring
logs from the Gold Fields project to indicate whether Gold Fields
had encountered aquifers during its drilling. Gold Fields did
not do any groundwater studies or monitoring and had not been
directed to do so.
Oro's proposed drilling project constitutes a "surface mining
operation" under the Surface Mining and Reclamation Act (§
2710 et seq.). As such, the project requires a reclamation plan.
(§ 2735, subd. (c).) Oro submitted such a plan with its permit
application. Three months later, the planning staff, in its proposed
mitigated negative declaration, required that a reclamation plan
be submitted. Interestingly, the planning staff noted in Gold
Fields's mitigated negative declaration that Gold Fields had prepared
and submitted such a plan as part of its application. Evidently,
Oro's plan was inadequate. Similarly, the mitigated negative declaration
required the development of a dust plan and a fire plan.
The El Dorado County Resource Conservation District characterized
the erosion hazards of the Oro project as "moderate to high."
Although the actual drill sites are small in area, access to the
sites requires road construction. Oro submitted a very general
erosion control plan to the County as part of its reclamation
plan. This prompted the planning staff in the mitigated negative
declaration to require that an erosion plan be established.
Most of the factors discussed above highlight the fundamental
problem here. That is the problem of land use conflict. The Board
recognized this point and required it to be analyzed in any EIR
prepared for the project. This conflict is inevitable when rapid
population growth occurs, as here, in foothill areas that lure
miners in search of gold. Throughout its arguments, Oro attempts
to dismiss the severity of this conflict by relying on the County
planning director's statement at the Board hearing that neither
the planning department nor the environmental health department
was made aware of any problems associated with the Gold Fields
activity. Of course, the statement ignores the fact that noise
complaints were made. But more important is the overwhelming public
opposition to the Oro project. This opposition was engendered
in large part from the experience of the Gold Fields project.
The public's concern about Oro's project therefore was not merely
subjective speculation. (Cf. Perley v. Board of Supervisors, supra,
137 Cal.App.3d at pp. 433-437.) Also throughout its arguments,
Oro asserts its project is simply a scaled-down-and therefore
less harmful-version of the Gold Fields project. The fallacy of
this position has been demonstrated in Discussion section I of
Another major problem concerns the mitigation measures that call
for the reclamation, erosion, dust and fire plans to be formulated
after the mitigated negative declaration is approved. There cannot
be meaningful scrutiny of a mitigated negative declaration when
the mitigation measures are not set forth at the time of project
approval. Much of the analysis in Sundstrom hinged on this point.
(202 Cal.App.3d at pp. 306-309.) In that case, the court noted
that public scrutiny is an integral component of the CEQA scheme.
(Id. at pp. 306-307.)
Of course, these mitigation deficiencies do not necessarily mandate
the preparation of an EIR. Obviously, the mitigation measures
can be modified to ensure meaningful review. But the reclamation
and erosion plans submitted with Oro's permit application are
evidently inadequate. And we have seen there is troubling information
regarding noise levels, insufficient information concerning water
sources, and perhaps a fundamental misconception in the traffic
study. As stated in No Oil and echoed in Sundstrom: " 'One
of the purposes of the [EIR] is to insure that the relevant environmental
data are before the agency and considered by it prior to the decision
to commit ... resources to the project ....' " (No Oil, supra,
13 Cal.3d at p. 84, quoting from Hanly v. Kleindienst (2d Cir.
1972) 471 F.2d 823, 837-838 (dis. opn. of Friendly, J.); Sundstrom,
supra, 202 Cal.App.3d at pp. 308-309.) In short, in the absence
of overriding circumstances, the CEQA process demands that mitigation
measures timely be set forth, that environmental information be
complete and relevant, and that environmental decisions be made
in an accountable arena. (Sundstrom, supra, at pp. 306-309.) The
mitigated negative declaration for the Oro project did not satisfy
these principles and could not satisfy them on the existing information
There is substantial evidence supporting the Board's determination
that it can be fairly argued that the Oro project may have a significant
environmental impact. [FN5]
FN5 This disposition renders unnecessary any reliance on
Guideline section 15064, subdivision (h)(1). That section provides
that in cases where it is not clear whether there is such substantial
evidence, if there is serious public controversy over the environmental
effects of a project, the agency shall consider the effect or
effects subject to the controversy to be significant and shall
prepare an EIR. There certainly was serious public controversy
over many environmental effects of the Oro project. However, Code
section 21082.2, subdivision (a), drafted after Guideline section
15064, states the matter somewhat differently: "... The existence
of public controversy over the environmental effects of a project
shall not require preparation of an [EIR] if there is no substantial
evidence before the agency that the project may have a significant
effect on the environment."
The judgment is affirmed. Respondents are awarded their costs.
Marler, Acting P. J., and Scotland, J., concurred.