Reprinted with the permission of LexisNexis.
110 Cal. App. 4th 362; 1 Cal. Rptr. 3d 726; 2003 Cal. App. LEXIS 1036; 2003 Cal. Daily Op. Service 6067;
2003 Daily Journal DAR 7592
PROTECT OUR WATER et al., Plaintiffs
COUNTY OF MERCED, Defendant and Respondent;
CALAVERAS MATERIALS INCORPORATED, Real Party in Interest and Respondent.
COURT OF APPEAL OF CALIFORNIA,
July 9, 2003,
Rose M. Zoia for Plaintiffs and
Dennis Myers, County Counsel, for Defendant and Respondent.
Mason, Robbins, Gnass & Browning and
William E. Gnass for Real Party in Interest and Respondent.
WISEMAN, J.--When practicing appellate law, there are at least three immutable
rules: first, take great care to prepare a complete record; second, if it is
not in the record, it did not happen; and third, when in doubt, refer back to
rules one and two. In this case, the parties totally missed the appellate mark
by failing to provide an adequate record for review.
Appellants Protect Our Water, San Joaquin Raptor Rescue Center, and the Merced River Valley Association (collectively POW) filed a
petition for writ of mandate. POW challenged the approval by respondent County of Merced (County) of a massive project involving the mining of 15 million tons
of aggregate reserves on 456 acres near the Merced River by respondent
Calaveras Materials Incorporated (CMI). The trial court denied POW's writ
petition. POW appeals, claiming a number of California Environmental Quality
Act (CEQA) n1 violations.
The administrative record is large--14
binder-sized volumes. It reads as if its preparers randomly pulled out
documents and threw them into binders, failing to organize them either
chronologically or by subject matter. Key findings required under CEQA are
impossible to find--let alone sufficient to enable us to determine whether they
are supported by substantial evidence.
We publish not because the merits of this
case warrant public proclamation but because we have observed a pattern of CEQA
cases with poorly prepared records making review difficult, if not impossible.
We iterate to anyone who will listen: CEQA has very specific requirements
regarding what findings must be in the record. Do not ignore the requirements
or, like these parties, you will find yourself in the unenviable position of
having your judgment reversed and being forced to start over at great public
and personal expense.
Judgment is reversed.
PROCEDURAL AND FACTUAL HISTORIES
As of 2000, CMI was facing a shortage of aggregate
supply for its river rock processing facilities near the town of Hopeton. CMI identified the Woolstenhulme Ranch site as a new source of long-term
permitted reserves. The Woolstenhulme Ranch site is located on a 635-acre
parcel in the northeastern portion of the County, approximately 12 miles north
of the City of Merced, near the town of Hopeton. CMI estimated that the Woolstenhulme Ranch site could provide sufficient
aggregate reserves to meet its anticipated ongoing demand for construction
materials for over 30 years. The property is utilized for agricultural
purposes, including annual hay production and livestock grazing, and contains
grasslands, riparian and oak woodlands, and wetland habitats.
CMI applied for a conditional use permit to mine approximately 15 million
tons of Portland cement-grade concrete sand and gravel from 456 acres of the
Woolstenhulme Ranch site in 14 phases over a 35-year period (the project). The
project will create 343 acres of wetlands and ponds and 113 acres of upland and
grazing land on the mined property. The aggregate resources are derived from
deposits of gravel, sand and overbank silt associated with the Merced River located to the
south of the project site. The aggregate deposit is buried below separate
layers of topsoil and overburden material. Excavation of the aggregate requires
the removal of one to eight and one-half feet of topsoil and overburden layers
to expose the aggregate layer. Aggregate is to be mined to an approximate
average depth of 20 feet and a maximum depth of 30 feet below the existing
ground surface, and mining will extend into the groundwater table in all
phases. The aggregate mined from the project will be used in construction
materials, including asphalt, concrete and plaster, for homes, buildings,
roads, bridges, dams, and related public and private infrastructure.
The aggregate will be excavated using
diesel-powered hydraulic excavators or loaders and transported to CMI's existing processing facility by
off-road, heavy-duty haul trucks using both temporary and permanent
haul-and-access roads on the project site. After the initial phases of mining
are completed, depending upon the economic feasibility at the time, excavated
material may be transported to the processing plant using an electrically
driven overland conveyor system, or by a combination of trucks and conveyors,
or solely by trucks.
The County circulated a notice of
preparation of a draft environmental impact report (EIR), along with a CEQA initial study.
A draft EIR was completed, a public review period commenced, and comments were
received. The draft EIR, dated August 2000, concluded that the project would create a
significant unavoidable impact on agriculture by converting approximately 421
acres of agricultural land to a gravel mining and reclamation operation.
Approximately 17 percent (71 acres) of the 421 acres is considered prime
agricultural land. The draft EIR acknowledged that there are no
feasible measures that would fully mitigate for the loss of productive prime
The draft EIR provided the following cumulative
"LAND USE, AGRICULTURE AND OPEN SPACE [P] ... [P]
"The Proposed Project will convert a
small portion of the [County's] productive agricultural land to an alternate
open space. The project does not consist of the conversion of agricultural land
to an urban use ... The permanent loss of productive agricultural land
(although relatively minor) would contribute to the cumulative impact to
agricultural land conversion in [the] County... [P] ... [P]
"In addition to other cumulative
development the Proposed Project would contribute incrementally to the
cumulative loss or alteration of wetland, woodland and riparian habitats and
special status animal species habitat. Grassland communities are high value
foraging habitat for Swainson's Hawk which is known to forage grasslands within
a ten-mile radius of its nesting site. The accelerated conversion of annual
grassland habitat to vineyards and orchards throughout the vicinity of the
project site is considered a significant cumulative impact. In addition, it is
suggested that already over 95% of California wetlands have been converted to non-wetland status, so any net loss of
wetlands is considered a significant cumulative impact. Therefore, the Proposed
Project would result in a contribution to significant cumulative impacts on
wetland, woodland and riparian habitats and special status animal species
The draft EIR identified and analyzed four
project alternatives: the no-project alternative; the agricultural and
habitat-preservation alternative; the alternate location alternative; and the
dredge-tailings alternative. The draft EIR concluded:
"[T]he No Project Alternative avoids
or reduces most of the significant, unavoidable impacts of the Proposed Project
except those related to traffic and air quality and would be considered the
environmentally superior alternative. Other than the No Project Alternative,
the Agriculture and Habitat Preservation Alternative would reduce significant
impacts associated with the conversion of prime agricultural lands to
non-agricultural uses as well as preserve habitat for sensitive species and is
considered to be environmentally superior to the Proposed Project. However, the
Agriculture and Habitat Preservation Alternative does not provide the same
amount of aggregate and the land use conflicts between agricultural operations
and non-agricultural uses could continue to result from this alternative to a
lesser extent than from the Proposed Project."
The County's planning commission staff
recommended approval of the project and certification of the EIR subject to several modifications to
avoid significant impacts. Specifically, the planning commission staff recommended
deletion of phase 11 adjacent to the Hopeton School and deferment of phases 9
and 13, which included prime farmland and involved policy issues to be
addressed through the pending general plan amendment to incorporate the state's
mineral land classification report.
On November 15, 2000, the County's planning commission certified the final EIR and approved the project. The
planning commission adopted a statement of overriding considerations to permit
mining for phases 9, 11 and 13, finding that the benefits of the project
outweighed the adverse impacts.
The planning commission decision was
appealed to the County's board of supervisors, which held public hearings on
January 23 and February 1 and 2, 2001. The board of supervisors adopted a
statement of overriding considerations to permit phases 9, 11 and 13, certified
the final EIR and approved the project. Later, the County filed a notice of
determination, which advised that the project would have a significant effect
on the environment due to the loss of 71 acres of prime farmland.
On March 7, 2001, POW filed a petition for writ of mandate, challenging the County's
approval of the project and certification of the final EIR. The trial court denied the
petition. POW appealed and filed a petition for writ of supersedeas, or other
appropriate stay order, seeking an immediate stay of CMI's mining activities related to the
project. We denied the petition.
POW argues that the trial court erred in
denying its mandamus petition on one or more of the following grounds: 1) the
final EIR's range of alternatives was inadequate and the County improperly
approved the project despite the existence of feasible alternatives; 2) the
final EIR failed to adequately evaluate all environmental impacts of the project,
including biological, land use and cumulative impacts; 3) the final EIR failed to adequately respond to
comments; and/or 4) the County's findings are not supported by substantial
I. CEQA principles
We begin by presenting an overview of the
CEQA review process and the appropriate standard governing our assessment of
A. CEQA review process
In Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal.4th 1112 [26 Cal. Rptr. 2d
231, 864 P.2d 502] (Laurel Heights II), the California Supreme Court
explained in detail the purposes and framework of the CEQA review process:
"We have repeatedly recognized that
the EIR is the 'heart of CEQA.' [Citations.] 'Its purpose is to inform the
public and its responsible officials of the environmental consequences of their
decisions before they are made. Thus, the EIR "protects not only the
environment but also informed self-government." [Citation.]' [Citation.]
To this end, public participation is an 'essential part of the CEQA process.'
"With certain limited exceptions, a
public agency must prepare an EIR whenever substantial evidence
supports a fair argument that a proposed project 'may have a significant effect
on the environment.' [Citations.] '"Significant effect on the
environment" means a substantial, or potentially substantial, adverse
change in the environment.' [Citations.]
"When an EIR is required, the lead agency
initially prepares a draft EIR. Once the draft EIR is completed, a comment period is
provided for the public and interested agencies. [Citations.] Public hearings
to discuss the draft EIR are encouraged, but not required.
[Citation.] The comment period is generally no shorter than 30 days and no
longer than 90 days. [Citations.]
"In the course of preparing a final EIR, the lead agency must evaluate and
respond to comments relating to significant environmental issues. [Citations.]
In particular, the lead agency must explain in detail its reasons for rejecting
suggestions and proceeding with the project despite its environmental effects.
[Citation.] 'There must be good faith, reasoned analysis in response [to the
comments received]. Conclusory statements unsupported by factual information
will not suffice.' [Citation.] Thus, it is plain that the final EIR will almost always contain
information not included in the draft EIR.
"The final substantive step in the EIR review process is certification of
the final EIR. The lead agency is required to certify that the final EIR has been completed in compliance
with CEQA, and that it reviewed and considered the information in the final EIR prior to approving the project.
[Citation.] CEQA also requires that, before approving a project, the lead
agency 'find either that the project's significant environmental effects
identified in the [final] EIR have been avoided or mitigated or
that the unmitigated effects are outweighed by the project's benefits.
[Citations.]' [Citation.]" ( Laurel Heights II, supra, 6
Cal.4th at pp. 1123-1124, fns. omitted.)
B. Standard of review
We explained the standard of review for
CEQA issues in Dry Creek Citizens Coalition v. County of Tulare (1999)
70 Cal.App.4th 20, 25-26 [82 Cal. Rptr. 2d 398]:
"In reviewing an agency's
determination under CEQA, a court must determine whether the agency
prejudicially abused its discretion. [Citation.] Abuse of discretion is
established if the agency has not proceeded in a manner required by law or if
the determination is not supported by substantial evidence. The court does not
pass on the correctness of an EIR's environmental conclusions, but
determines whether the EIR is sufficient as an informational
document. [Citations.] An adequate EIR must be 'prepared with a sufficient
degree of analysis to provide decisionmakers with information which enables
them to make a decision which intelligently takes account of environmental
consequences.' [Citation.] It 'must include detail sufficient to enable those
who did not participate in its preparation to understand and to consider meaningfully
the issues raised by the proposed project.' [Citation.] The court must uphold
an EIR if there is any substantial evidence in the record to support the
agency's decision that the EIR is adequate and complies with CEQA.
"CEQA requires an EIR to reflect a good faith effort at
full disclosure; it does not mandate perfection, nor does it require an
analysis to be exhaustive. [Citation.] The absence of information in an EIR does not per se constitute a
prejudicial abuse of discretion. [Citation.] A prejudicial abuse of discretion
occurs if the failure to include relevant information precludes informed
decisionmaking and informed public participation, thereby thwarting the
statutory goals of the EIR process. [Citations.]" (See
also Stanislaus Natural Heritage Project v. County of Stanislaus (1996)
48 Cal.App.4th 182, 192-193 [55 Cal. Rptr. 2d 625]; §§ 21005, 21100; CEQA
Guidelines, § 15126, subd. (a) [EIR shall discuss the significant
environmental effects of the proposed project].n3)
"'On appeal, the appellate court's
"task ... is the same as that of the trial court: that is, to review the
agency's actions to determine whether the agency complied with procedures
required by law." [Citation.] The appellate court reviews the administrative
record independently; the trial court's conclusions are not binding on it.
[Citations.]' [Citation.]" ( Stanislaus Natural Heritage Project v.
County of Stanislaus, supra, 48 Cal.App.4th at pp. 192-193; see also
Laurel Heights I, supra, 47 Cal.3d at p. 392.)
With these principles in mind, we turn to
II. Adequacy of range of
alternatives/existence of feasible alternatives
POW argues that the project was improperly
approved because the final EIR's range of alternatives was
inadequate and there existed feasible alternatives with fewer environmental
An EIR must discuss project alternatives
even when it concludes the project's significant environmental impacts will be
avoided or substantially reduced by mitigation measures. (1 Kostka &
Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2003) §
17.20, p. 656; see also Laurel Heights I, supra, 47 Cal.3d 376, 400-403.) In
approving a project, the agency is not required to adopt findings on the
proposed project alternatives if it finds the project's significant
environmental impacts will be avoided or substantially lessened by mitigation
measures. However, if any of the project's significant environmental impacts
will not be avoided or substantially lessened by mitigation measures, the
agency must, before approving the project, make written findings that the
project alternatives are infeasible. (§ 21081, subd. (a)(3); Guidelines, §
15091, subd. (a)(3).) The agency's findings must also describe the specific
reasons for rejecting the alternatives identified in the EIR. (Guidelines, § 15091, subd. (c).)
And the findings must be supported by substantial evidence in the record. (§
21081.5; Guidelines, § 15091, subd. (b).)
The California Supreme Court explained the
rationale for requiring that the decisionmaking agency make specific findings
about alternatives and mitigation measures before approving a project for which
significant environmental impacts have been identified:
"The requirement ensures there is
evidence of the public agency's actual consideration of alternatives and
mitigation measures, and reveals to citizens the analytical process by which
the public agency arrived at its decision. [Citations.] Under CEQA, the public
agency bears the burden of affirmatively demonstrating that, notwithstanding a
project's impact on the environment, the agency's approval of the proposed
project followed meaningful consideration of alternatives and mitigation
measures." ( Mountain Lion Foundation v. Fish & Game Com.
(1997) 16 Cal.4th 105, 134 [65 Cal. Rptr. 2d 580, 939 P.2d 1280].)
The agency's decisionmaking body must adopt
the required findings itself. It may not delegate the duty to make findings to
agency staff or a subordinate body. (Guidelines, § 15025, subd. (b)(2); Vedanta
Society of So. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 526-529 [100 Cal. Rptr. 2d 889].)
We note at the outset that it is nearly
impossible to locate the pertinent documents in the 14-volume administrative
record in this case. The majority of the relevant documents are neither
properly indexed nor coherently organized. In fact, it is even unclear whether
we have complete copies of the pertinent documents. The master index to the
administrative record identifies only broad categories. For example,
"[s]taff reports and notices" spans over 880 pages in three volumes,
and "[s]tudies, reports and other technical documents" covers 1,137
pages in three volumes. Two volumes contain unidentified "[t]ranscripts"
that contain no index of any kind.
POW elected to prepare the administrative
record in this case. (See § 21167.6, subd. (b)(2).) Therefore, the fault in the
poor organization and indexing of the record plainly falls on POW. But poor
organization and a deficient master index alone do not necessarily make for an
inadequate record. The problems with the record here arise not simply from
disorganized, inadequately indexed documents. The problems are more
fundamental. The documents generated by the County are inadequate for review. It
is impossible to identify many of the documents as the County has failed to
properly label them, and some documents appear incomplete. In addition, in the
confusion of this record, it is often difficult to differentiate between
documents and attachments to those documents. We find it inconceivable that,
given the scope and magnitude of this project, the documents comprising the
administrative record are so defectively drafted. This responsibility fell
squarely on the County. (See § 21081, subd. (a)(3); Guidelines, § 15091; see
also § 21167.6, subd. (b)(2) [agency charged with certifying accuracy of record
of administrative proceedings prepared by petitioner].) And we hold the County
to it. Were we not to do so, we would be defeating one of the basic purposes of
CEQA--to disclose to the public the reasons for a project's approval if the
project has significant environmental effects. (See Guidelines, § 15002, subd.
The importance of an adequate and complete
administrative record is highlighted by the fact that project applicants often
assist in the preparation of the record to ensure it is properly organized,
indexed and presented in a form that is easy to follow. (2 Kostka &
Zischke, supra, § 23.67, p. 987. ) The project applicants are the
parties who have an indisputable interest in upholding agency action approving
a project. The consequences of providing a record to the courts that does not
evidence the agency's compliance with CEQA is severe--reversal of project
approval. (See No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68,
81 [118 Cal. Rptr. 34, 529 P.2d 66] [remand procedure not applicable in CEQA
case where agency failed to make written determination of environmental impact
before approving project as required by CEQA]; Sierra Club v. Contra Costa
County (1992) 10 Cal.App.4th 1212, 1216, 1218-1222 [13 Cal. Rptr. 2d 182]
[trial court erred in remanding to agency to expand alternatives stated in EIR rather than granting writ vacating
agency's certification of EIR].)
In this case, we reviewed the record for
written findings pertaining to the lack of feasibility of the project
alternatives and the reasons for rejecting those alternatives. The board of
supervisors did appear to adopt "Related Environmental Findings prepared
for Conditional Use Permit Application No. 99012 and Reclamation Plan,"
but it is impossible to determine from this record what those findings are. The
findings mentioned in the excerpt of the minutes of the public hearing are not
attached or otherwise referenced by the board of supervisors. In addition, the
record contains different sets of "findings" related to the project
made by the planning commission and its staff. In fact, POW notes that the
record does not appear to contain a final resolution of approval of the project
or certification of the EIR and acknowledges its own difficulty
in locating the pertinent findings.
Because we cannot discern the required
findings under CEQA, we reverse the judgment. (See Resource Defense Fund v.
Local Agency Formation Com. (1987) 191 Cal. App. 3d 886, 896-898 [236 Cal.
Rptr. 794] [failure to comply with CEQA procedures necessarily prejudicial and
not subject to harmless error analysis]; Citizens for Quality Growth v. City
of Mt. Shasta (1988) 198 Cal. App. 3d 433, 443-445, 448-449 [243 Cal. Rptr.
727] [judgment reversed where city failed to make finding, in absence of
mitigation measures addressing significant environmental impact, that
alternatives that would lessen environmental impact were infeasible]; §
21168.9.) As a result of our conclusion, we do not address POW's remaining
The judgment is reversed. The trial court
shall issue a peremptory writ of mandate directing the County to set aside its
approval of the project. Each party shall be responsible for its own costs.
Dibiaso, Acting P.J., and Harris, J.,
A petition for a rehearing was denied August 1, 2003, and the petitions of both respondent and real party in interest for
review by the Supreme Court were denied October 15, 2003. Baxter, J., did not participate therein.
n1 CEQA is codified at Public Resources
Code section 21000 et seq. All statutory references are to the Public Resources
Code unless otherwise indicated.
n2 CMI filed a motion to dismiss the
appeal as untimely, arguing the appeal was filed more than 60 days after
service of the order denying the writ of mandate. However, the appeal was filed
within 60 days after entry of the judgment, and the judgment is appealable.
(See Catalina Investments, Inc. v. Jones (2002) 98 Cal.App.4th 1, 5, fn.
3 [119 Cal. Rptr. 2d 256]; MCM Construction, Inc. v. City and
County of San Francisco (1998) 66 Cal.App.4th 359, 367, fn. 3 [78 Cal. Rptr. 2d
n3 The CEQA Guidelines are set forth in
title 14, section 15000 et seq. of the California Code of Regulations. All
further citations will be referred to as Guidelines.
Section 15000 of the Guidelines states:
"The regulations contained in this chapter are prescribed by the Secretary
for Resources to be followed by all state and local agencies in California in the implementation of [CEQA]...
[P] ... [P] These Guidelines are binding on all public agencies in California." The California Supreme Court
has stated on several occasions that "'at a minimum, ... courts should
afford great weight to the Guidelines except when a provision is clearly
unauthorized or erroneous under CEQA.'" ( Laurel Heights II, supra,
6 Cal.4th at p. 1123, fn. 4; Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 564, fn. 3 [276 Cal. Rptr. 410, 801 P.2d
1161]; Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 391, fn. 2 [253 Cal. Rptr. 426, 764 P.2d
278] (Laurel Heights I).)