In a published opinion filed November 13, 2023, disposing of consolidated appeals, the Second District Court of Appeal (Div. 6) affirmed judgments denying writ petitions that sought to invalidate a Ventura County ordinance. The ordinance at issue created wildlife migration corridor overlay zones covering approximately 163,000 less-developed acres of the County, including 10,000 acres of classified mineral resources. California Construction and Industrial Materials Association/Ventura County Coalition of Labor, Agriculture and Business v. County of Ventura (Los Padres Forestwatch, et al., Interveners and Respondents) (2023) 97 Cal.App.5th 1. As did the trial court, the Court of Appeal rejected the arguments of appellants – which were coalition groups representing construction, industry, labor, agriculture and business interests – that County’s adoption of the ordinance violated requirements of the Surface Mining and Reclamation Act of 1975 (“SMARA”) and CEQA.
Factual and Procedural Background
Prior to its adoption of the challenged ordinance, County’s non-coastal zoning ordinance required a conditional use permit (“CUP”) for all mineral resource development; such a CUP must be consistent with County’s general plan, which requires review of such applications to assure minimal environmental disturbance and also contains a specific policy to preserve wildlife migration corridors. Without other standards or regulations specifically governing such corridors, however, wildlife movement issues were decided through County’s discretionary permitting and environmental review process.
The County’s challenged overlay zone ordinance (“Project”) created two such zones which covered 163,000 acres and aimed to allow wildlife to move freely through the zones. The first zone is a “Habitat Connectivity and Wildlife Corridors Overlay Zone” covering and setting forth purposes and policies for the entire area; the second is a “Critical Wildlife Passage Areas Overlay Zone” covering three smaller and particularly critical areas all of which are contained entirely within the first zone. The Project also amends the general plan and other ordinances to achieve its purpose.
SMARA contains a requirement that requires a lead agency to prepare a statement of reasons, which it must forward to the state geologist for review, “prior to permitting a use that would threaten the potential to extract minerals in [a designated] area[.]” (Pub. Resources Code, § 2762(d)(1).) The state geologist sent County two letters opining that a statement of reasons was required for its Project, but County disagreed that the requirement applied and declined to prepare one.
After County approved the overlay ordinances as CEQA-exempt, the appellants sued alleging SMARA and CEQA violations, lost in the trial court, and appealed.
The Court of Appeal’s Opinion
The Court first held as a matter of law that SMARA’s statutory “statement of reasons” requirement did not apply to the County’s wildlife migration corridor overlay zoning ordinance Project because enacting an ordinance changing permitting requirements did not constitute “permitting a use” under the statute’s plain meaning. The Court explained:
The Project Opponents argue that the Project permits a “use,” namely a wildlife corridor. But the use is by wildlife. We are confident that wildlife is loath to seek permission from the County. It pretty much goes where it will. The Project sets standards for future developments that might interfere with the movement of wildlife. That is not permitting a use.”
The Court further held the state geologist’s opinions did not trump the statute’s plain meaning, and that even assuming the County had erred in not providing a statement of reasons, the appellants had not shown any resulting prejudice, i.e., that it was reasonably probable they would have obtained a more favorable result on their SMARA-based traditional mandate challenge absent the alleged error. Rather, the County’s reasons for the Project – “to preserve functional connectivity for wildlife and vegetation throughout the overlay zone” – was stated in the ordinance itself and “[t]he County was well aware of the comments by members of the public and the position taken by the state geologist when it approved the Project.”
It was undisputed that the zoning ordinance was a “project” for purposes of CEQA and the County relied on the “common sense” and Classes 7 and 8 categorical exemptions in treating it as exempt from CEQA review. The Court held substantial evidence – including expert studies and documents regarding the need to preserve wildlife corridors and for establishing development standards compatible with wildlife movement – supported the County’s decision that the Project fell within the scope of the Class 7 and 8 categorical exemptions. Those exemptions apply, respectively, to regulatory agency actions to “assure the maintenance, restoration or enhancement of a natural resource” (CEQA Guidelines, §15307) or “of the environment” or for the “protection of the environment” (§15308) “where the regulatory process involves procedures for the protection of the environment.” (Ibid.) The Court held there could be “no dispute” that the Project fell within the exemptions’ plain language, noting that the Guidelines recognize “wildlife” as a “natural resource” entitled to protection. (Guidelines, Appen. G, § IV(d).) It further observed that nothing in the Project’s language prohibited mineral extraction and that appellants’ contrary position that it could have such an effect and result in adverse environmental impacts was based on speculation, not substantial evidence.
The Court observed that, to defeat the categorical exemption, appellants must show more than just a fair argument that the Project may have a significant environmental impact; rather, they must show it qualifies for an exception to the exemption under CEQA Guidelines section 15300.2. (Citing Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1102, disapproving the case appellants relied on, Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, on this point.) To meet their burden, appellants must show: (1) a reasonable possibility the activity will have a significant effect on the environment, and (2) the effect is due to unusual circumstances. (Citing Berkeley Hillside Preservation, at 1097-1098.) The agency determines the existence of unusual circumstances as a factual question and its determination is subject to the traditional, and deferential, substantial evidence standard of judicial review, under which all evidentiary conflicts are resolved and inferences indulged in the agency’s favor. (Id. at 1114.) Under an alternative test, also subject to substantial evidence review, an unusual circumstance can be demonstrated, and the exemption thereby defeated, if substantial evidence shows the project will have a significant adverse environmental effect.
Here, the Court held, appellants failed to show an unusual circumstance under the standard test, which requires showing “that the project has some feature that distinguishes it from others in the exempt class, such as its size or location.” (Id. at 1105.) While appellants argued the Project is significantly larger than others in its class, the cases they cited did not support that claim as they involved county-wide projects (Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863; Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209), and the Class 7 exemption provides an example – DFG wildlife preservation activities – that is of state-wide scope. Appellants also failed to cite evidence showing that the fact that the Project overlays 10,000 acres of classified minerals resources distinguishes it from others in the exempt class. The Court further noted that “[n]either mining nor ordinances that attempt to preserve wildlife are unique to the County.” Since appellants failed to show unusual circumstances, the Court noted that it need not determine whether substantial evidence supported a fair argument of a reasonable possibility of a significant impact due to such circumstances, but also went on to observe there was no such substantial evidence in any event.
Finally, the Court rejected appellants’ arguments that the Project will have a significant adverse impact because it locates the corridor adjacent to a principal access road to an existing aggregate CUP area, and has the potential to hamper or preclude access or mineral extraction. The Court again emphasized that appellants’ arguments in this regard are speculative and that nothing in the Project prohibits aggregate mining or access to a permitted mine. Further, it noted that appellants pointed to no new requirements that could not have been imposed by the County under its former permitting and review requirements for a mining CUP; in essence, per the Court, “[t]he Project made explicit what was implicit in the prior law” and “[t]hat is not close to a fair argument that there is a reasonable possibility the Project may have an adverse effect on the environment.”
Conclusion and Implications
The Court’s SMARA analysis is a straightforward interpretation of the statute’s plain language resulting in the conclusion that its “permitting a use” language does not encompass enacting a wildlife migration corridor overlay zoning ordinance that establishes standards applicable to future use-permitting actions. That said, the Court gave, perhaps surprisingly in light of the statutory language expressing concern with “threat[s]” to “the potential to extract minerals in [a designated] area[,]” little weight to the opinions of the state geologist. But plain language is plain language, and the Court’s view that the new ordinance only made explicit in County’s zoning and other regulations what the County could already do in applying its general plan policy in the permitting context probably bolstered its comfort level with the result.
The Court’s CEQA analysis is similarly straightforward and noncontroversial as to the applicability of the Class 7 and Class 8 exemptions and its recitation of the tests for exceptions. Its repeated reasoning that the Project only made “explicit” what was already “implicit” in the prior law rests on the notion that the County was already authorized to “impose the same or similar restrictions and conditions on mining as may be imposed under the Project.” While that may be true, in theory, the Court did not rest its holding on either a “no project” (and no one even disputed this was a CEQA “project”) or “common sense” exemption rationale, and the vigorous litigation challenging the Project suggests the aggregate mining interests may have strongly believed the Project would, as a practical matter, have new and deleterious effects. Hopefully, for their sake, the Court’s rejection of their arguments of threats to mining production as “speculative” is a correct assessment, and effective wildlife migration corridors and productive mining activities will be able to harmoniously coexist as ostensibly contemplated.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.