In a terse opinion filed September 13, and modified and ordered partially published on October 3, 2024, the Third District Court of Appeal upheld an award of reasonable record preparation cots to prevailing lead agency County of Yolo (County) in a CEQA action unsuccessfully challenging a sand and gravel mining permit and reclamation plan (project).  Yolo Land and Water Defense, et al v. County of Yolo, et al (Teichert, Inc., Real Party in Interest) (2024) 105 Cal.App.5th 710.

The Court of Appeal’s Opinion

On the merits, the Court of Appeal uniformly rejected the CEQA claims of Plaintiffs and Appellants Sierra Club and Yolo Land and Water Defense (appellants) challenging the project’s EIR on grounds of overinclusive baseline, inadequate environmental impact analysis (of methylmercury impacts in a reclaimed lake), and insufficient evidentiary support for a prime farmland reclamation mitigation measure; however, because its discussion of all those merits issues was relegated to the unpublished portion of its opinion, they won’t be further discussed here.  The Court chose to publish only the sliver of its already brief opinion discussing its conclusion that the trial court properly awarded the County reasonable administrative record preparation costs (in the amount of $3,813.45) despite appellants’ claims that it was legally barred from so doing by their election to prepare the record and use of the Public Records Act (PRA) to obtain the record documents.

Reviewing the issues posed under the relevant cost recovery statutes – Public Resources Code section 21167.6 and Code of Civil Procedure sections 1032 and 1094.5 – as questions of law subject to de novo review, the Court first turned to interpretation of section 21167.6, which “governs the preparation and certification of the administrative record in a CEQA case.”  Noting that appellants asked County to produce the documents comprising the 29,745-page administrative record, the accuracy of which must be timely certified by the County under that statute’s subdivision (b)(1), the Court held that because subdivision (b)(2) (which authorizes CEQA petitioners to elect to prepare the record) references subdivision (b)(1), “the two must be read together.”  (Citing Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, 1055, my 9/22/14 blog post on which can be found here.)

The statute’s “subdivision (b)(1) addresses the payment of costs” and the Court held the fact “[t]hat appellants elected to prepare the record under… subdivision (b)(2) did not mean the County had no costs associated with preparation of the administrative record, and it did not preclude an award of record preparation costs to the County.”  (Citing case law authorities including id. at 1055; Landwatch San Luis Obispo County v. Cambria Community Services Dist. (2018) 25 Cal.App.5th 638, 642-644, my 8/1/18 post on which can be found here; and St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989, 1016-1017 (“St. Vincent’s”).)  Code of Civil Procedure section 1032(b) provides that “[i]n general, and except as otherwise provided by statute, a prevailing party is entitled to recover costs” and “[s]ection 21167.6 does not provide that a public agency prevailing in a CEQA action may not recover reasonable costs associated with the preparation of the administrative record that were actually incurred.”  Further, CCP § 1094.5 provides that except as otherwise statutorily prescribed, record preparation costs are to be borne by petitioners.  (Code Civ. Proc., § 1094.5(a).)  Based on its review of these relevant statutes, the Court held “appellants must pay any reasonable costs the County actually incurred associated with the preparation of the administrative record.”

In reaching this conclusion, the Court summarily rejected appellants’ argument that because County produced administrative record documents pursuant to a PRA request, it could not recover staff and consultant time associated with that production, noting that “St. Vincent’s rejected a similar attempt to avoid payment of costs.”  (Citing St. Vincent’s, at 1019, fn.9.)

Conclusion and Implications

The Court’s citation to St. Vincent’s in support of its conclusion that County could recover administrative record preparation costs reasonably incurred in responding to appellants’ PRA requests is interesting.  While the Court characterized it as involving a “similar attempt to avoid payment of costs,” St. Vincent’s actually involved a quite different and rather extreme factual scenario, the key feature of which was that the unsuccessful CEQA petitioner there had “total[ly] disregard[ed]” its “solemn statutory obligation” under the statute’s cost containment provision, Public Resources Code § 21167.6(f), “to strive to [prepare the administrative record] at reasonable cost in light of the scope of the record.”

Among other abuses, the St. Vincent petitioner “subjected the [lead agency] to a costly and lengthy process of trawling through its entire computer system in response to an extremely broad and unbounded search for ‘all writings evidencing or reflecting communications… relating to or in connection with [its and another] property’” only “because it was not satisfied with the number of e-mails contained in the 20 boxes” the City had already produced; moreover, the petitioner in St. Vincent’s never even cited to a single one of the emails produced by the City in response to its PRA requests or discovery in its merits briefing, bolstering the court’s conclusions there that it had completely abandoned its statutory responsibility to contain record preparation costs and also undermined CEQA’s policy of expediting litigation. 

By contrast, there was no indication in the Court of Appeal’s opinion in the instant case, whether in its published or unpublished portions, that appellants had engaged in any such statutory CEQA violations, and the amounts of costs incurred by the County were relatively modest in amount ($3,813.45) and were incurred in connection with an administrative record totaling 29,745 pages.

Nor, apparently, did this case present a situation where the lead agency had to take over record preparation due to a CEQA petitioner’s unreasonable delays, as in Landwatch San Luis Obispo County, another of the cases cited in the Court’s opinion.

In sum, while the published portion of the Court’s opinion is very brief, it bears watching and may have outsized significance to the extent it signals a judicial willingness to award reasonable administrative record preparation costs to prevailing lead agencies as a matter of course, even in contexts where the petitioner elects to and prepares the record without misconduct or undue delay and utilizes the PRA to assist in doing so.

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.