In a highly detailed and analytical opinion, the Fifth District Court of Appeal addressed and answered numerous novel legal questions regarding the proper interpretation and application of Public Resources Code § 21167.6(e), CEQA’s administrative record statute.  Consolidated Irrig. Dist. v.. Superior Court, 205 Cal.App.4th 697 (2012).  In brief, the court of appeal rejected the blanket contention that discovery is never allowed in a CEQA case, and also provided significant guidance as to the proper content of the administrative record.

The trial court had denied the plaintiff irrigation district’s motion to conduct limited discovery, a motion to augment the record of proceedings, and a petition for writ of mandate under the California Public Records Act, all of which were raised in a CEQA proceeding.  The court of appeal issued an order to show cause and stayed further proceedings in the trial court, and ultimately reached the following conclusions:

  • Tape recordings of public agency hearings qualify as “other written materials” for purposes of §21167.6(e)(1), and, therefore, copies of tape recordings should have been included in the record of proceedings.
  • The term “submitted” as used in the statutory phrase “written evidence…submitted” (§21167.6(e)(7)) means “made readily available.”
  • As applied to the case before it, the court of appeal held “written evidence…submitted” (and therefore part of the record) includes (1) documents named in a comment letter along with a specific Web page address (URL) containing that document, and (2) documents previously delivered to the public agency in connection with another matter, where the comment letter (a) named the documents, (b) stated the documents were provided previously in connection with another project, (c) offered to provide another hard copy upon the agency’s request, and (d) requested the document be included in the record of proceedings.
  • Documents simply named in a comment letter, or named along with a reference to a general Web site, have not been made readily available to the public agency and, therefore, are not “written evidence…submitted” under §21167.6(e)(7).
  • The trial court did not err when it determined that the “public agency’s files on the project” (§21167.6(e)(1)) did not include files maintained by subconsultants of the EIR preparer.  In this case, the City had retained a primary consultant to prepare the EIR, and the primary consultant hired subconsultants to prepare reports, studies, or certain sections of the EIR.  The record failed to show that the City had any actual or constructive control, ownership or other rights in the files of the subconsultants, based on the terms of its contract with the primary consultant.
  • A March 2010 letter to the City from the County of Fresno concerning the project should have been included in the record of proceedings pursuant to §21167.6(e)(7), which covers all written correspondence submitted to the public agency concerning the project.
  • The record sufficiently supported the implied findings of fact underlying the trial court’s denial of the district’s petition under the Public Records Act.  Specifically, the record supported the findings that files maintained by subconsultants who worked on preparing portions of the EIR were not subject to disclosure as public records “in the possession of [City].”

While the opinion is certainly sound, and even scholarly in its analysis and detail, its detached and dispassionate tone belies its context, i.e., the increasingly frequent and intense disputes between CEQA litigants over the content of administrative records –  largely ancillary litigation disputes that are extremely costly in terms of their consumption of the court’s and parties’ time and resources and are symptomatic of CEQA ills crying out for real legislative reform.  But that is a topic for another post.…