242 Cal. App. 4th 202
Cal. Ct. App.2015Background
- In 2012 the California State Lands Commission (SLC) approved 10‑year mineral extraction leases allowing Hanson and affiliates to continue suction-dredge sand mining on sovereign submerged lands in San Francisco Bay; Baykeeper challenged approval.
- SLC prepared a Draft EIR (2010), recirculated a Revised Draft EIR (2011) using a 2002–2007 5‑year average as the baseline, and issued a Final EIR (2012) finding most impacts mitigable but entrainment of delta/longfin smelt and certain air impacts remained significant; SLC adopted a Reduced Project Alternative with an option to increase volumes if mitigation conditions met.
- The Final EIR relied on Coast Harbor Engineering (CHE) studies and supplemental modeling to conclude the project’s incremental contribution to San Francisco Bar and Ocean Beach erosion would be small (5,000–7,000 cy/yr; ~0.2–0.3% of long‑term Bar erosion) and therefore less than significant.
- Baykeeper sued, alleging (1) CEQA deficiencies — baseline selection, erosion/cumulative analysis, mineral‑resource analysis, and failure to consult trustee agencies — and (2) failure to analyze compliance with the common‑law public trust doctrine; the trial court denied relief on both grounds.
- The Court of Appeal affirmed CEQA compliance (finding SLC’s technical choices supported by substantial evidence and its decision not to recirculate the EIR reasonable) but reversed as to the public trust: SLC failed to perform any public‑trust inquiry or make findings about whether commercial sand mining on trust lands is consistent with trust purposes, requiring remand.
Issues
| Issue | Plaintiff's Argument (Baykeeper) | Defendant's Argument (SLC/Hanson) | Held |
|---|---|---|---|
| Baseline for CEQA impact analysis | SLC improperly inflated baseline by using a 2002–2007 average rather than conditions at NOP (2007), distorting impacts | SLC had discretion to use multi‑year average because annual mining fluctuates and 2007 was atypically low; analysis supported by evidence | Court: Held for SLC — multi‑year baseline was reasonable and supported by substantial evidence |
| Erosion / cumulative impacts & recirculation | Final EIR omitted adequate cumulative analysis of mining’s contribution to Bar/coastal erosion; new studies (Barnard 2012, CHE supplement) were significant new information requiring recirculation | Drafts already disclosed the controversy; new studies did not change substantive conclusions; decision not to recirculate entitled to deference | Court: Held for SLC — cumulative analysis adequate and decision not to recirculate supported by substantial evidence |
| CEQA analysis of mineral resource impacts (Appendix G) | Appendix G requires analysis of depletion of nonrenewable sand resource (permanent loss), which SLC failed to evaluate | Appendix G is advisory; threshold focuses on loss of access or blocking of resource (incompatible development); SLC’s approach consistent with policy and supported by evidence | Court: Held for SLC — SLC’s interpretation and factual conclusion (no significant adverse impact on availability) supported by substantial evidence |
| Trustee‑agency notice/consultation under CEQA | SLC failed to notify/consult Coastal Commission and City of San Francisco about NOP/Revised Draft EIR (esp. re: coastal erosion), prejudicing the process | SLC says agencies had actual notice or otherwise had opportunity to comment; substantial compliance or no prejudice | Court: SLC violated notice/consultation rules (lack of required consultation), but Baykeeper failed to show prejudice — no reversal on that ground |
| Public trust doctrine analysis | SLC failed to consider whether leasing submerged lands for private commercial sand extraction is consistent with public trust — must make findings | SLC claimed sand mining is per se public‑trust use or that CEQA suffices; also argued mining leases are not permanent alienation so National Audubon duties don’t apply | Court: Held for Baykeeper on this issue — CEQA review does not substitute for a public‑trust inquiry; SLC had an affirmative duty to take the trust into account and failed to do so, so remand required |
Key Cases Cited
- Illinois Central R.R. v. Illinois, 146 U.S. 387 (U.S. 1892) (land under navigable waters held in public trust; state cannot abdicate trust)
- National Audubon Soc. v. Superior Court, 33 Cal.3d 419 (Cal. 1983) (state trustee has affirmative duty to consider and protect public trust uses; remand required where trust not considered)
- Boone v. Kingsbury, 206 Cal. 148 (Cal. 1928) (upholding statutory scheme authorizing regulated oil/gas prospecting on tidelands where record showed no substantial interference with trust)
- Citizens for East Shore Parks v. State Lands Com., 202 Cal.App.4th 549 (Cal. Ct. App. 2011) (where continued, permissible trust use and CEQA review addressed trust issues, public trust claim may be satisfied)
- State Water Resources Control Bd. Cases, 136 Cal.App.4th 674 (Cal. Ct. App. 2006) (CEQA/factual record may fulfill trust obligations in some contexts)
- Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692 (Cal. Ct. App. 1990) (warning against relying on a bare “ratio” theory when assessing cumulative impacts)
- Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, 57 Cal.4th 439 (Cal. 2013) (baseline usually existing conditions at NOP but agencies have discretion to select baseline supported by substantial evidence)
- Communities for a Better Environment v. South Coast Air Quality Management Dist., 48 Cal.4th 310 (Cal. 2010) (CEQA standards and deference principles for environmental review)