In a published opinion filed February 13, 2019, the Fourth District Court of Appeal (Division 3) reaffirmed the need for a CEQA litigant challenging a coastal development permit to appeal to the Coastal Commission before suing. Fudge v. City of Laguna Beach (Hany Dimitry; Real Party in Interest) (2019) ___ Cal.App.5th ___. The Court refused plaintiff’s invitation to make the simple complex, and followed published precedents requiring a plaintiff to exhaust the statutory administrative remedy of an appeal to the Commission to ripen a litigation challenge.
In an opinion filed March 23, and belatedly modified and ordered published on May 25, 2017, the First District Court of Appeal reversed the trial court’s dismissal of a plaintiff environmental group’s (“Friends”) CEQA action against a local air quality district (“District”). (Friends of Outlet Creek v. Mendocino County Air Quality Management District (Grist Creek Aggregates, LLC, et al., Real Parties in Interest) (1st Dist., Div. 1, 2017) 11 Cal.App.5th 1235.) Friends’ action challenged District’s 2015 issuance of an “Authority to Construct” to Real Party Grist Creek for asphalt plant-operations on a site used, at various times since 1972, for aggregate and asphalt production. The trial court had sustained District’s and Grist Creek’s demurrer on the ground that CEQA relief was unavailable against a local air district in this context and that Friends’ exclusive remedy was an action under Health and Safety Code § 40864.
In a unanimous 29-page opinion authored by Associate Justice Carol Corrigan, and filed on March 30, 2017, the California Supreme Court held the City of Newport Beach’s EIR for a large mixed-use development project proposed on a 400-acre coastal zone site failed to comply with CEQA. Banning Ranch Conservancy v. City of Newport Beach (Newport Banning Ranch LLC, et al., Real Parties in Interest) (2017) 2 Cal.5th 918. The EIR improperly failed to identify areas of the site that might qualify as “environmentally sensitive habitat areas” (ESHA) – unique areas receiving special legal protections under the California Coastal Act – and take such areas into consideration in its analysis of project alternatives and mitigation measures. In light of its reversal of the Court of Appeal’s judgment upholding the EIR and project approvals on CEQA grounds, the high court stated it did not need to reach plaintiff and appellant’s independent claim that the City also violated a general plan “strategy” requiring it to “[w]ork with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which development will be permitted.”
Continue Reading California Supreme Court Holds Banning Ranch EIR Violates CEQA by Failing to Identify and Analyze Coastal Zone Project’s Impacts on Potential Environmentally Sensitive Habitat Areas (ESHA); Declines to Reach General Plan Issues
In the second of two published opinions filed May 10, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding the lead agency designation and EIR for a controversial project proposing to pump 50,000 acre-feet annually for a 50-year period from an aquifer underlying Cadiz, Inc.’s Mojave Desert property in San Bernardino County. Center For Biological Diversity, et al. v. County of San Bernardino, et al., (4th Dist., Div. 3, 2016) 247 Cal.App.4th 326, Case No. G051058. (For my post covering the Court’s related published opinion, see “Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions,” by Arthur F. Coon, posted May 11, 2016.) Continue Reading Fourth District Upholds EIR For Cadiz Mojave Desert Groundwater Pumping Project Against Various CEQA Challenges
The First District Court of Appeal held the California State Lands Commission’s (“CSLC”) EIR for a project involving the lease of sovereign lands beneath San Francisco Bay for private dredge mining of sand complied with CEQA; however, it partially reversed the trial court’s judgment denying a writ because the record failed to demonstrate CSLC’s compliance with the public trust doctrine. San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc., et al., Real Parties In Interest) (1st Dist., Div. 4, 2015) 242 Cal.App.4th 202, filed 11/18/15.
On October 2, 2015, the Bureau of Land Management (“BLM”) and the California Department of Fish and Wildlife (“CDFW”) entered into a 12-page “agree[ment] to work with each other to conserve biological and natural resources on federal public lands administered by the BLM within California.” (10/2/15 Agreement By And Between The United States Bureau Of Land Management And The California Department Of Fish And Wildlife (“Agreement”), at p. 1.) The Agreement states it was developed “for the purpose of memorializing and making specific [the agencies’] cooperation and coordination to protect and conserve fish, wildlife, plants and their habitat within California” and that it “supplements” an earlier, November 27, 2012 MOU between BLM and CDFW. (Ibid.) Continue Reading Satisfying State Compensatory Mitigation Requirements Under CEQA On Federal Conservation Lands: CDFW And BLM Agree To Cooperate To Make It Happen
On September 18 and October 5, 2015, I posted Parts I and II, respectively, of my comments on OPR’s August 11, 2015 Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). While the deadline for public comments on the 145-page Discussion Draft was October 12, 2015, there undoubtedly will be future opportunities for public input on the proposed Guidelines amendments during the formal rulemaking process that will ultimately be conducted by the Natural Resources Agency, if not before. This concluding post on the Discussion Draft covers its final part, which sets forth about a dozen proposed revisions that OPR characterizes as merely “Minor Technical Improvements.” (Discussion Draft, at 108-145.)
Under CEQA, a “trustee agency” is a “state agency having jurisdiction by law over natural resources affected by a project which are held in trust for the people of the State of California” and “[t]he California Department of Fish and Game [now Wildlife (“DFW”)] [is such a trustee agency] with regard to the fish and wildlife of the state, to designated rare or endangered native plants, and to game refuges, ecological reserves, and other areas administered by the department.” (14 Cal. Code Regs., § 15386(a).) CEQA lead agencies are required to provide notice to and consult with DFW and other trustee agencies (among other public agencies and entities) with respect to CEQA documents being prepared by the lead agency for projects that may affect the relevant resources. (E.g., 14 Cal. Code Regs., § 15086(a)(2) [lead agency shall consult with and request comments on Draft EIR from trustee agencies].) Development projects requiring work to be done in and around rivers, streams and lakes commonly require the developer – as one of the many project approvals typically required – to enter into what has become popularly known as a “Streambed Alteration Agreement” (“SAA”) with DFW to protect fish and wildlife resources that may be affected by the project. (See Fish & Game Code, § 1603; Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 1518-1521 [discussing statutory provisions for so-called “streambed alteration agreements” and their interplay with CEQA].)
Continue Reading A CEQA Trustee Agency “Muscles Up”: Third District Holds Department of Fish and Wildlife’s Newly Exercised Power To Require Notice Of And Regulate Substantial Water Diversions – Even Absent Streambed Alteration – Was Always Unambiguously Authorized By Fish & Game Code Section 1602