FRIENDS OF THE KINGS RIVER, Plaintiff and Appellant, v. COUNTY OF FRESNO et al., Defendants and Respondents; COLONY LAND COMPANY, L.P., et al., Real Parties in Interest and Respondents.
No. F068818
Fifth Dist.
Dec. 8, 2014.
105
[CERTIFIED FOR PARTIAL PUBLICATION*]
*Pursuant to
COUNSEL
Daniel C. Cederborg, County Counsel, and Bruce B. Johnson, Deputy County Counsel, for Defendants and Respondents.
Mitchell Chadwick, Patrick G. Mitchell and Andrew M. Skanchy for Real Parties in Interest and Respondents.
OPINION
KANE, J.—
INTRODUCTION
This case involves the Carmelita Mine and Reclamation Project (the Project), a proposed aggregate mine and related processing plants to be operated on a 1,500-acre site at the base of the Sierra Nevada foothills near Sanger and Reedley. The Project includes, as required for every new surface mining operation, a reclamation plan that specifies how the land will be treated to provide a usable postmining site. Fresno County (County) prepared an environmental impact report (EIR) for the Project, and County‘s board of supervisors (the Board) certified the EIR.
While its first SMGB appeal was pending, Friends initiated the case before us by petitioning the trial court for writ of mandate. In its petition, Friends asserted a single cause of action alleging abuse of discretion under the California Environmental Quality Act (
In this appeal, petitioner contends the trial court erred by ruling on the petition at a time when “[j]udicial review of the Project approval was not ripe” because the SMGB had granted its first appeal. Alternatively, petitioner contends County failed to proceed in a manner required by law by approving the EIR at a time when the reclamation plan was invalid.
Petitioner also raises numerous challenges to the adequacy of the EIR under CEQA. It argues the project description is inadequate, certain conclusions regarding water issues lack substantial evidence, County should have required the acquisition of agricultural conservation easements as a mitigation measure for the loss of farmland resulting from the Project, the EIR‘s discussion of potential impacts to air quality, hydrology and noise are inadequate, and the final EIR contains significant new information and erroneous conclusions. Finally, petitioner contends no substantial evidence supports the required findings for a conditional use permit.
We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The Project
In June 2010, Colony Land Company, L.P. (the applicant), applied to the Fresno County Department of Public Works and Planning (the public works department) for a conditional use permit (CUP), site plan review/occupancy permit, and reclamation plan for an aggregate mine and related processing, asphalt, ready-mix concrete, and recycling plants to be operated by Carmelita
The proposed location for the Project is a 1,500-acre site south of State Route 180, east of the Kings River, west of Reed Avenue, and approximately 15 miles east of Fresno. The Project site is on a flat terrace of former river deposits and is currently used for growing row crops and stone fruit trees. Large and small farms with grape, tree fruit, and walnut production, open pasture, and rural homesites surround the Project site. Area-wide development includes rural farming, limited commercial and municipal facilities, and residential subdivisions associated with Sanger and Reedley. In the vicinity, there are aggregate production operations to the northwest and southwest. Another mining and reclamation project has been proposed to the northeast. Reedley Airport is southeast of the Project site.
In 1986, California classified the area as a “Mineral Resource Zone 2,” which means adequate information indicates that significant mineral deposits are present or there is a high likelihood for their presence. In 1988, California designated the Project site as having construction-grade aggregate deposits of regional significance.
The proposed aggregate production operation would eventually occupy 898 acres of the site. The remaining 602 acres would continue to support tree fruit production; 850 acres would be divided into 22 individual mining cells of approximately 40 acres. Each cell would be mined to a depth of 50 feet below ground surface with slopes of 2:1 (horizontal:vertical) (h:v). The average cell is estimated to contain approximately 2.69 million cubic yards of material, resulting in an approximate total of 100 million tons of marketable aggregate and 25 million tons of overburden and soils. Mining cell development would involve cell-by-cell mining and reclamation operations. According to the operational statement provided with the Project application, the operations would be typical of sand and gravel extraction, with conventional mining practices common to the industry. Soils and overburden would be removed and the underlying aggregate reserves would be excavated and transported to an onsite rock processing plant for washing and sizing. Materials would be sold as washed aggregates or used to make products including asphaltic concrete and Portland cement concrete at onsite plants. Access to the Project site would be from Reed Avenue.
The Project application included a reclamation plan intended to address the requirements of the Surface Mining and Reclamation Act of 1975 (
Subsequent revised versions of the reclamation plan were prepared in May 2012 and August 2012.
Preparation and certification of the EIR, denial of Friends‘s administrative appeal
In August 2010, County issued a notice of preparation of a draft EIR (DEIR) for the Project. In October 2011, County made the DEIR available for public review and comment. A 45-day review and comment period began on October 7 and ended on November 21, 2011.
In May 2012, County circulated the final EIR (FEIR). The FEIR consisted of the DEIR, revisions and corrections to the DEIR, comments received on the DEIR, a list of persons, organizations and public agencies that commented on the DEIR, responses to the comments, and other information added by County.3 In July 2012, County gave notice of a public hearing on the Project. On August 9, 2012, the County planning commission held a public hearing on the Project and passed a resolution certifying the FEIR. The planning commission found that certain significant environmental effects could not be mitigated to insignificant levels and adopted a statement of overriding considerations. The significant environmental effects related to the conversion of farmland, air pollutant emissions, odors, and traffic.
Friends appealed the planning commission‘s approval of the Project to the Board. On October 16, 2012, the Board considered and rejected petitioner‘s appeal. The Board passed a resolution finding that the FEIR had been completed and processed in compliance with CEQA and certifying the FEIR. The Board adopted findings set forth in a 58-page document titled “CEQA Findings of Fact and Statement of Overriding Considerations,” which was attached to the resolution, and found that the “Mitigation Monitoring and
Friends‘s appeal to the SMGB
On October 30, 2012, petitioner submitted a designation appeal4 of the Board‘s decision to the SMGB, alleging that the reclamation plan was in conflict with various requirements of SMARA.
On March 14, 2013, the SMGB held a public hearing on the Project and granted petitioner‘s designation appeal. In a letter dated March 19, 2013, the SMGB‘s executive officer wrote, “[T]he SMGB granted the appeal, denied the County‘s approval of the reclamation plan on procedural grounds, and remanded the reclamation plan back to the County for approval consideration upon completion of the reclamation plan.”5
County approval of revised reclamation plan, second appeal to the SMGB
In response to the SMGB‘s decision remanding the reclamation plan, the Board reconsidered the reclamation plan for the Project at a public meeting on July 9, 2013. The public works department prepared an addendum to the FEIR. County staff member Augustine Ramirez told the Board that the reclamation plan had been revised to include an engineered grading and drainage plan and a postmining water balance. Ramirez stated that the revisions did “not change the information analysis or conclusions of the EIR”
On August 9, 2013, Friends submitted a second designation appeal to the SMGB, appealing the Board‘s approval of the revised reclamation plan. On November 14, 2013, the SMGB held a public hearing on Friends‘s second appeal. The SMGB determined that County‘s decision was supported by substantial evidence and upheld County‘s decision to approve a permit and reclamation plan for the Project.
Current writ petition
On November 20, 2012, while its first SMGB designation appeal was pending, Friends filed a petition for writ of mandate against County and the Board (respondents) challenging the certification of the EIR. Petitioner alleged that the EIR “fails to adequately disclose, analyze and/or mitigate the Project‘s environmental impacts as required by law” and “its conclusions regarding the Project‘s environmental impacts are not supported by substantial evidence.” Petitioner alleged respondents violated CEQA by approving the Project because it conflicts with County‘s general plan.
Petitioner further alleged that the reclamation plan for the Project did not meet the requirements of SMARA and that it had submitted a designation appeal to the SMGB. Petitioner further alleged it “will amend this Petition to include allegations of SMARA violation in the event the appeal is denied.”
After the SMGB granted its first designation appeal, Friends argued to the trial court that the SMGB‘s decision invalidated the reclamation plan for the Project and as a result, “there is no valid Project approval to be considered by this Court.” Respondents and the real parties in interest took the position that the SMGB‘s decision was irrelevant to the issue whether County abused its discretion in certifying the EIR.7
Friends filed a notice of appeal on January 10, 2014.
Subsequent writ petition
On August 21, 2013, Friends filed a second petition for writ of mandate against respondents, in which it challenged the Board‘s decision of August 8, 2013, approving the revised reclamation plan for the Project.
DISCUSSION
I. The trial court did not err by ruling on the writ petition*
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II. The successful SMGB appeal did not set aside County‘s approval of the reclamation plan or nullify the certification of the EIR
A. Statutory framework of SMARA
“SMARA was enacted by the Legislature in recognition that ‘the extraction of minerals is essential to the continued economic well-being of the state and to the needs of the society, and that the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety.’ (
“A reclamation plan under SMARA is a written plan specifying how mined land will be treated so as to minimize the environmental impacts of mining and render a mined site usable in the future for alternative purposes. (See
*See footnote, ante, page 105.
SMARA provides for ”
The SMGB is authorized to hear appeals by “any person who is aggrieved by the granting of a permit to conduct surface mining operations in an area of statewide or regional significance.” (
In addition, the SMGB has authority to step in and take over as the lead agency if it finds that the local lead agency has failed to meet its enforcement obligations under SMARA. (El Dorado County, supra, 36 Cal.4th at pp. 985-986;
B. Analysis
The SMGB wrote that it “granted [petitioner‘s] appeal, denied the County‘s approval of the reclamation plan on procedural grounds, and remanded the
Respondents and real parties in interest argue that a remand by the SMGB “has no impact on the validity of an approved reclamation plan, but merely informs the lead agency about the SMGB‘s position and requires the lead agency to consider the plan again in light of the SMGB‘s concerns.” For the reasons explained below, we agree.
“[A]dministrative agencies have only such powers as have been conferred on them, expressly or by implication, by constitution or statute.” (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103.) ” ‘[A]n agency literally has no power to act . . . unless and until [the Legislature] confers power upon it.’ [Citation.]” (Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 419.) “That an agency has been granted some authority to act within a given area does not mean that it enjoys plenary authority to act in that area.” (Ibid.)
In this case, the agency at issue, the SMGB, has not been granted authority to set aside or nullify a lead agency‘s approval of a project or a reclamation plan. The only remedy available for a successful appeal to the SMGB is remand to the lead agency for reconsideration. (
In County of Amador, a water agency and an irrigation district certified an EIR for a water project. After the trial court issued a writ of mandate setting aside the approval of the EIR, the agencies appealed, arguing that subsequent action by the State Water Resources Control Board (SWRCB) mooted the trial court‘s concerns. (County of Amador, supra, 76 Cal.App.4th at pp. 940–941.) The trial court had ruled that the EIR did not adequately assess the project‘s impacts on fishery resources and lake levels. On appeal, the agencies asserted the SWRCB later provided the requisite analysis and mitigation measures by imposing conditions in its own decision, No. 1635 (D-1635). The SWRCB, however, subsequently ordered reconsideration of D-1635. The Court of Appeal rejected the agencies’ claim that D-1635 could be relied upon to remedy deficiencies in the EIR. In doing so, the court observed, “Because reconsideration has been granted, D-1635 is of no effect. It therefore cannot be deemed to ‘moot’ anything.” (County of Amador, supra, at p. 949.) County of Amador does not support the proposition that the SMGB‘s remand had the effect of setting aside the reclamation plan or nullifying County‘s certification of the EIR in this case. County of Amador did not concern the issue whether the SMGB has the authority to set aside another agency‘s approval decision, and a case is not authority for points not decided or considered. (People v. Knoller (2007) 41 Cal.4th 139, 154–155.) Furthermore, the agency in County of Amador, the SWRCB, was reconsidering its own decision and it had the authority to reverse itself. (See
In summary, the SMGB did not have authority to set aside County‘s approval of the reclamation plan for the Project. As a consequence, its decision granting Friends‘s first designation appeal had no effect on County‘s certification of the EIR and approval of the Project.
This means that Friends‘s arguments premised on the theory that the SMGB set aside or invalidated County‘s approval of the reclamation plan are also unavailing. Petitioner contends County failed to proceed in a manner required by law because it failed to comply with a County ordinance that requires there be a reclamation plan in order to approve a CUP application for a surface mining operation. Petitioner asserts: “The CUP approval was no longer valid as a result of the SMGB remand of the Reclamation Plan
Having concluded that the SMGB‘s first designation appeal decision did not render Friends‘s petition unripe or moot and did not invalidate County‘s approval of the reclamation plan, we agree with respondents and real parties in interest that evidence of the SMGB proceedings—which occurred after County certified the EIR—is not admissible in our consideration of CEQA issues. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576 [“extra-record evidence is generally not admissible in traditional mandamus actions challenging quasi-legislative administrative decisions on the ground that the agency ‘has not proceeded in a manner required by law’ within the meaning of... section 21168.5“].)
III. Friends‘s may not raise a SMARA claim for the first time on appeal*
IV. Friends‘s challenges to the Project under CEQA*
A.-D.*
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E. Mitigation for loss of farmland
The EIR determines that the Project will result in the permanent loss of almost 600 acres of farmland and concludes that this is a significant impact. Petitioner asserts County failed to require mitigation for the conversion of farmland to other uses in violation of CEQA. We begin with a brief discussion of the law on mitigation.
1. CEQA‘s mitigation requirement
In
*See footnote, ante, page 105.
“Under [section 21081], a decisionmaking agency is prohibited from approving a project for which significant environmental effects have been identified unless it makes specific findings about alternatives and mitigation measures. [Citations.] The requirement ensures there is evidence of the public agency‘s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision. [Citations.] Under CEQA, the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project‘s impact on the environment, the agency‘s approval of the proposed project followed meaningful consideration of alternatives and mitigation measures.” (Mountain Lion, supra, 16 Cal.4th at p. 134.)19
An EIR must describe “feasible measures which could minimize significant adverse impacts.” (
” ‘Mitigation’ ” includes: “(a) Avoiding the impact altogether by not taking a certain action or parts of an action. [][] (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. [] (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment. [] (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. [][] (e) Compensating for the impact by replacing or providing substitute resources or environments.” (Guidelines,
2. Background
Section 4.2 of the DEIR addresses potential impacts of the Project on agricultural and forestry resources. The DEIR explains that a maximum of 583 acres of farmland would be permanently lost from agricultural production as a result of the Project. This would occur over the course of 100 years at an estimated rate of five to 24 acres lost per year.
The DEIR states that it is not possible to reclaim the entire site to agricultural land due to the existing water table. It continues:
“Fresno County does not have an established farmland protection program or uniform agricultural conservation banking program to which the Applicant could contribute. However, the Applicant does have large agricultural land holdings on which agricultural easements could be placed. Securing these parcels in an agricultural easement would not reduce the number of acres lost to agricultural production, nor would it increase the number of acres under Williamson Act contract.
“Given the lack of feasible mitigation, the conversion of prime farmland, unique farmland, farmland of statewide importance, and farmland of local importance is a significant and unavoidable impact.”
Three mitigation measures are recommended. Mitigation measure AG-1 provides that the current agricultural use of the Project site would continue until the land is prepared for mining activities. Mitigation measure AG-2 requires the applicant to ensure that 602 acres within the Project site but
The DEIR concludes that, after the implementation of the recommended mitigation measures, “the conversion of farmland to another land use remains a significant and unavoidable impact.”
County received several public comments to the DEIR about the loss of farmland caused by the Project, and “Collective Response 6” of the FEIR addresses this concern. Some commenters suggested that the Project should mitigate the loss of farmland by establishing permanent agricultural conservation easements (ACEs) at a ratio of between one and two acres of preservation for each acre of farmland lost. A few commenters referred to a draft County policy called “Farmland Mitigation Program for Fresno County‘s Sanger River [B]ottom [Mineral Resource Zone] Area Due to Gravel Mining.”21
Collective Response 6 explains, “The County‘s decision makers have not formally considered nor approved, nor has County staff recommended, adoption of a farmland mitigation program.” The response continues:
“Approximately 35 acres (6 percent) of the Project disturbance area are Prime Farmland [citation], all of which would be replaced by mine reclamation backfill to create Prime Farmland of equal acreage [citations]. As stated in the Project objectives, one reason the Project Site is proposed as a mining site is because of the rocky soils [citation]. Reclamation would involve backfill of approximately 240 acres to surfaces that would again be capable of supporting tree crops. Removal of cobbles and gravels from the soils before soils are replaced would remove one of the primary limitations of the site soils in their present condition. ... Production records indicate that the existing site soils produce 20 percent less fruit on average than the same trees on soils without the cobbles. Therefore, the reclaimed soils are expected to be 20 percent more productive per acre than under existing conditions. The reclaimed lands would be returned to agricultural lands of equal or better quality of that currently existing on the site. In addition, Mitigation Measure AG-1 require[s] phasing of the Project‘s mining activities to ensure that areas to be mined remain in agricultural production as long as practicable.
“Mitigation Measure AG-2 requires that the Applicant ensure that 602 acres of farmland within the Project site, but outside of the Project‘s mining
“Mitigation Measure AG-3 would accelerate the return to farmland of certain mined areas, and the Reclamation Plan requires that approximately 240 acres of the Project be reclaimed to agricultural use as soon as possible.
“However, even with implementation of the mitigation identified in the Draft EIR, the County considers the permanent loss of up to 583 acres of farmland to represent a significant impact under CEQA. Permanent preservation through a farmland conservation easement would not reduce the amount of farmland permanently converted as result of the Project. A conservation easement would not ‘replace or provide a substitute resource’ (CEQA Guidelines
3. Analysis
Petitioner initially contends County violated CEQA by failing to require mitigation for the conversion of farmland to other uses. It asserts, “The EIR for the Project, however, does not include any specific measures to mitigate the adverse environmental impact of eliminating important farmland.” This is not correct. The EIR recommends three mitigation measures, which the County approved. Pursuant to the MMRP, the public works department is responsible for enforcement of the mitigation measures, and compliance is to be monitored in yearly mine inspections. Mitigation measure AG-2, for example, requires the applicant to maintain 602 acres in agricultural production for the life of the CUP. Thus, the EIR does include specific measures to mitigate the loss of farmland, and petitioner‘s contention that County failed to require mitigation is without merit.
Petitioner next argues that the EIR fails to evaluate feasible mitigation measures. We disagree. “If more than one mitigation measure is available, the EIR must discuss each and describe reasons for the measure or
Petitioner also appears to take the position that County was required to adopt the use of ACEs as a mitigation measure as a matter of law. Petitioner asserts, “[F]ailure to require compensatory mitigation is a violation of the law.”
Petitioner relies on Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, 238 (Masonite), in which the Court of Appeal held, ” . . . ACEs may appropriately mitigate the direct loss of farmland when a project converts agricultural land to a nonagricultural use . . . .” This case does not support petitioner‘s position.
In Masonite, Mendocino County approved a project for a sand and gravel quarry on a site where vineyards were cultivated. (Masonite, supra, 218 Cal.App.4th at p. 233.) The EIR for the project rejected the use of ACEs as a
The Court of Appeal disagreed with the EIR‘s discussion of ACEs. The court explained: “The County presumed that ACEs were useful only to address ‘the indirect and cumulative effects of farmland conversion,’ and were not needed here because the Project would have no such effects. Thus, the finding of infeasibility in the EIR rested on the legal conclusion that while ACEs can be used to mitigate a project‘s indirect and cumulative effects on agricultural resources, they do not mitigate its direct effect on those resources.” (Masonite, supra, 218 Cal.App.4th at p. 238Ibid.)
The court reasoned that ACES “compensate” for the loss of farmland within the Guidelines’ definition of mitigation. (Masonite, supra, 218 Cal.App.4th at p. 238, citing Guidelines,
In sum, the Masonite court held that ACEs may mitigate the direct loss of farmland and that the lead agency in that case erred by failing to consider ACEs as a potential mitigation measure for this direct loss. We do not read Masonite, however, to stand for the proposition that CEQA requires the use of ACEs as a mitigation measure in every case where ACEs are economically feasible and the project causes the loss of farmland. In Masonite, the lead agency did not believe ACEs were applicable and apparently did not adopt any mitigation measures to address the loss of farmland caused by the project. Here, in contrast, County did not “categorically exclude ACEs as a means to mitigate the conversion of farmland.” (Masonite, supra, 218 Cal.App.4th at p. 241.) Rather, County considered the use of ACEs along with other mitigation measures and selected the three mitigation measures recommended in the DEIR. We decline to hold that County was required to adopt ACEs as a mitigation measure instead of the mitigation measures it did adopt.
Finally, we reject petitioner‘s argument that County failed to provide a reasoned response to commenters raising concerns regarding the conversion of agricultural lands to other uses. “An agency must evaluate and respond to timely comments on the draft EIR that raise significant environmental issues. [Citations.] Responses must describe the disposition of the issues raised in the comments. [Citations.] If the agency rejects a recommendation or objection concerning a significant environmental issue, the response must explain the reasons why. [Citation.]” (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475.) Other than arguing County should have required the acquisition of ACEs as a mitigation measure, petitioner does not explain how Collective Response 6 is deficient. We do not find the response to be inadequate.
F.-I.*
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*See footnote, ante, page 105.
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DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents and real parties in interest.
Gomes, Acting P. J., and Franson, J., concurred.
*See footnote, ante, page 105.