GOLDEN DOOR PROPERTIES, LLC, et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; COUNTY OF SAN DIEGO et al., Real Parties in Interest.
D076605, D076924, D076993
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
7/30/20
Gregory W. Pollack, Judge.
CERTIFIED FOR PUBLICATION; (Super. Ct. Nos. 37-2018-00030460-CU-TT-CTL, 37-2018-00054312-CU-TT-CTL, 37-2018-00054559-CU-TT-CTL)
Petition granted in part. Requests for judicial notice granted in part and denied in part.
Latham & Watkins, Christopher W. Garrett, Daniel Brunton and Emily Haws for Petitioners Golden Door Properties LLC, California Native Plant Society, Hidden Valley Zen Center, Friends of Hidden Valley Zen Center, Buena Creek Action Group, Deer Springs Oaks Action Group, Twin Oaks Valley Road Action Group, Lisa Amantea,
Chatten-Brown Carstens & Minteer, Jan Chatten-Brown and Josh Chatten-Brown for Petitioner Sierra Club.
Shute, Mihaly & Weinberger, William J. White and Edward Schexnayder for Petitioner Endangered Habitats League.
John Buse, Aruna Prabhala and Peter Broderick for Petitioner Center for Biological Diversity.
Law Offices of Roger B. Moore and Roger B. Moore for California Water Impact Network as Amicus Curiae on behalf of Petitioners.
Law Offices of Thomas N. Lippe and Thomas N. Lippe for Save Berkeley‘s Neighborhoods as Amicus Curiae on behalf of Petitioners.
First Amendment Project, James R. Wheaton and Paul Clifford for Natural Resources Defense Council, The First Amendment Project, Electronic Frontier Foundation, Californians Aware, Planning and Conservation League Foundation, and Environmental Law Foundation as Amici Curiae on behalf of Petitioners.
No appearance by Respondent.
Thomas E. Montgomery, County Counsel, Joshua M. Heinlein, Senior Deputy County Counsel; Sheppard, Mullin, Richter & Hampton, John E. Ponder, Whitney A. Hodges and Karin Dougan Vogel for Real Party in Interest County of San Diego.
Gatzke Dillon & Ballance, Mark J. Dillon, Kevin P. Sullivan and Kimberly A. Foy for Real Party in Interest Newland Sierra, LLC.
Best, Best & Krieger, Michelle Ouellette and Amy Hoyt for Real Party in Interest Dudek & Associates, Inc.
Byron & Edwards, Michael M. Edwards and Zachary M. Lemley for Real Parties in Interest Linscott, Law & Greenspan and Fehr & Peers.
Schwartz, Semerdjian, Cauley & Moot and Owen M. Praskievicz for Real Party in Interest Development Planning and Financing Group.
Chen, Horowitz & Franklin and Alexander J. Chen for Real Party in Interest Fuscoe Engineering.
Tyson & Mendes and Mitchel B. Malachowski for Real Party in Interest T.Y. Lin International Group.
Koenig Jacobsen and Gary L. Jacobsen for Real Party in Interest Leighton & Associates.
Motschenbacher & Blattner and Jeremy G. Tolchin for Real Party in Interest GSI Water Solutions, Inc.
Christopher Perez for Real Party in Interest AECOM.
Judkins, Glatt & Riсh and David H. Getz for Real Party in Interest John Burns Real Estate Consulting.
Jennifer B. Henning for California State Association of Counties, League of California Cities, and California Special Districts Association as Amici Curiae on behalf of Real Party in Interest County of San Diego.
However, in this case the County of San Diego (County), as lead agency for the Newland Sierra project, no longer had “all” such correspondence, nor all “internal agency communications” related to the project. If those communications were by e-mail and not flagged as “official records,” the County‘s computers automatically deleted them after 60 days. When project opponents propounded discovery to obtain copies of the destroyed e-mails and related documents to prepare the record of proceedings, the County refused to comply.
We disagree with that interpretation. Preparing a record under
Moreover, in this case, to the extent the writings sought are encompassed within
The referee‘s erroneous interpretation of
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties and the Project
Golden Door owns a spa and resort on approximately 600 acres in San Diego County. In January 2015, Newland Real Estate Group, LLC (Newland) proposed 2,135
B. Golden Door‘s April 2014 Opposition to the Project
In 2009, the County rejected a proposed development (known as Merriam Mountains) for the Project site. Golden Door had opposed Merriam Mountains because of its environmental impacts. Asserting that Newland‘s Project was “similar to the Merriam Mountains project that the Board of Supervisors rejected,” in April 2014 Golden Door‘s attorneys wrote to the County, expressing concerns that the Project would create significant traffic and noise impacts, increase greenhouse gas emissions from greater vehicle miles traveled, violate the County‘s General Plan, impact biological resources, overextend the area‘s water supply, and create “noise and vibration from the many years of blasting that will be required to ‘blast’ the mountains as each phase of the project is constructed . . . .” The letter states these impacts “would significantly harm the Golden Door‘s business” and “construction of the Project could mean the end of the Golden Door,” which had been operating since 1958. The letter ends by stating that Golden Door had “retained expert consultants” and would “continue to oppose the Project.”
C. The First Lawsuit—December 2016
In December 2016—years before the Project EIR was certified—Golden Door filed a superior court petition for a writ of mandate and complaint for injunctive relief against Vallecitos Water District, the County, and Newland, entitled Golden Door Properties, LLC v. Vallecitos Water District et al. (Super. Ct. San Diego County, 2016, No. 37-2016-00037559-CU-WM-NC, hereafter the “Vallecitos case“). Generally
D. Golden Door‘s Public Records Requests
In June 2017, the County released the Project‘s draft EIR (DEIR). The following month, Golden Door submitted a Public Records Act (
In October 2017, Golden Door‘s attorneys submitted another PRA request to the County, seeking contracts the County relied on to claim that the consultants alone had possessory rights to the technical reports. Days later, Golden Door‘s attorneys “clarified” that this PRA request encompassed “‘all documents and communications in the County‘s possession . . . pertaining to [the Project].‘”
The Project‘s environmental review had been ongoing for nearly three years; however, in response to these PRA requests the County produced only 42 e-mails, covering only the 60-day period from September through October 2017. Golden Door‘s attorneys asked the County to explain how the Project could have generated only 42 e-
Plaintiffs’ attorneys received no response to their follow-up question, “‘Simply put, where are the e-mails from early 2015 to September 2017?‘” They believed “that the County had destroyed all e-mail correspondence related to the [Project‘s] environmental review prior to September 2017.”
E. The County‘s 60-Day Automatic Deletion of E-mail Policy, in General
Effective June 2008, County Administrative Manual item 0040-09-01 provides that after 60 days, “e-mail messages will be deleted automatically.”4 Effective June 21, 2018, item 0040-11 provides that after 60 days, e-mails will be permanently deleted. Item 0040-11 provides that “the e-mail user must determine, before 60 days, whether an e-mail needs to be saved . . . .” “Official record” e-mails must be retained at least two years.
Thus, if the County‘s e-mail user does not designate an e-mail as an “official record,” by default the County permanently deletes that e-mail after 60 days—regardless of whether the e-mail was actually an “official record.” County resolution 17-170 and item 0040-11 define “official record” as an e-mail (1) “made for the purpose of disseminating information to the public“; or (2) “made and kept for the purpose of memorializing an official public transaction“; or (3) “required by lаw to be kept“; or (4) “necessary and convenient to the discharge of a County officer‘s official duties and
F. Golden Door‘s Additional PRA Requests
“Alarmed” by the County‘s e-mail destruction policy, Golden Door made another PRA request “to preserve its rights.” This encompassed documents already requested in October 2017.
In late May 2018, County counsel responded that nonofficial e-mails were automatically deleted “and there is not a record of the number of deleted e-mails.” However, the County‘s attorney agreed to obtain and produce copies of deleted e-mails held by others, stating, “[T]he County will obtain and produce those records to which the County has a contractual right of possession pursuant to the provisions of the [consultant] contracts and agreements earlier produced.” Later, however, the County reneged, refusing to produce the consultants’ copies.
G. DEIR Released; Golden Door Sues the Next Day (the Records Action)
On June 18, 2018, the County released the Project‘s DEIR. The next day, Golden Door filed a superior court petition for a writ of mandate and complaint for declaratory and injunctive relief. This action, entitled Golden Door Properties, LLC v. County of San Diego (Super. Ct. San Diego County, 2018, No. 37-2018-00030460-CU-TT-CTL, hereafter the “Records Action“), is not a CEQA challenge to the EIR. The County had not certified the EIR yet.
The Records Action alleges: (1) use of unauthorized consultants to prepare the EIR technical studies; (2) failure to execute consultant memoranda of understanding (MOU) in accordance with County CEQA guidelines; (3) improper destruction of official records; and (4) improper withholding of records under the PRA. Golden Door sought an order directing the County to “[t]ake immediate steps to identify deleted/destroyed electronic official records, including e-mails, regarding [the Project] . . . and recover as many deleted/destroyed electronic records (including e-mails) as reasonably possible from both [Newland] and consultants for the [Project] . . . .”
In July 2018, the superior court (Judge Wohlfeil) entered a temporary restraining order (TRO), requiring the County to stop deleting Project-related e-mails. Citing
H. The County Certifies the EIR and Approves the Project
On September 24, 2018, Golden Door‘s attorneys urged the County Board of Supervisors (Board) to disapprove the Project on numerous grounds, including that “the
I. CEQA Litigation Commences
In October 2018, Center for Biological Diversity and Endangered Habitats League (collectively, CBD) filed a superior court petition for a writ of mandate, declaratory, and injunctive relief against the County and Newland, challenging the Project‘s EIR and alleging the Project violated the General Plan. (Center for Biological Diversity et al. v. County of San Diego et al. (Super. Ct. San Diego County, 2018, No. 37-2018-00054312-CU-TT-CTL), hereafter “the CBD Action“). Later, Sierra Club joined as plaintiff. CBD elected to prepare the “administrative record.”7
California Native Plant Society together with 31 others (including Golden Door) also filed a petition for a writ of mandate, declaratory, and injunctive relief against the County and Newland, entitled California Native Plant Society et al. v. County of San Diego et al. (Super Ct. San Diego County, 2018, No. 37-2018-00054559-CU-TT-CTL,
In February 2019, the superior court consolidated the CBD and the CEQA Actions. Later, the court consolidated the Records Action with them for a single trial.9
1. Request to County in the Records Action
In January 2019, Golden Door served the County with a requеst for production of documents under the Civil Discovery Act (
From January through May 2019, the County produced 5,909 documents comprising nearly 170,000 pages.10 However, the County objected to requests seeking documents: (1) “relating or pertaining to, concerning, or discussing” the County‘s compliance with Golden Door‘s PRA requests (request No. 4); (2) identifying persons responsible for compliance with document retention policies with respect to these PRA requests (request No. 7); and (3) relating to compliance with the MOU between the County, Newland, and certain EIR consultants.
2. Request to Newland in the CEQA Action
In an attempt to obtain copies of deleted e-mails, the CEQA Action plaintiffs served Newland with a request for production of “[a]ll documents relating or pertaining to, concerning, or discussing the project or [Newland‘s] compliance with [CEQA] with respect to the project.” However, Newland refused, claiming such documents were “not relevant to the County‘s record.”
The CEQA Action plaintiffs also served the County with a request for documents (1) relating to the Project or the County‘s compliance with CEQA with respect to the Project; (2) created on or after January 1, 2014, related to Newland and related business entities; (3) relating to the Project and certain environmental consultants; and (4) discussing the manner or procedure for conducting the hearing of public testimony at Board of Supervisors meetings. Asserting numerous objections, and that it had already produced responsive “non-privileged, non-exempt documents . . . in the County‘s possession” under the PRA, the County produced no documents.
4. Subpoenas to EIR consultants
Golden Door also served two of the County‘s environmental consultants (Linscott, Law & Greenspan (LL&G) and Dudek & Associates (Dudek)) with business records subpoenas seeking (1) “project-related e-mails and written correspondence” regarding substantive land use or environmental issues between themselves and Newland; (2) “field notes, resource documents and supplemental technical studies” used in preparing the Project‘s EIR; and (3) all agreements and MOU‘s between themselves and Newland, and between themselves and any sub-consultant relating to the Project.
LL&G and Dudek objected, asserting thаt the CEQA case would be decided ”solely on the administrative record that was before the County Board of Supervisors when it approved” the Project.
Golden Door filed motions to compel discovery and to require a privilege log for withheld documents. The parties stipulated to the appointment of the Honorable Ronald S. Prager (Ret.) as referee “for discovery matters in these cases” including “all future and additional discovery disputes as may be timely filed in the consolidated action . . . .”
L. Referee‘s Rulings Adopted by the Superior Court
Before the hearing, the County agreed to produce a privilege log. The motion to compel a privilege log was now moot, and the parties agreed to litigate privilege issues later if necessary. After conducting a hearing, the referee denied the other motions on the following grounds, which the superior court adopted without substantive change.
1. No discovery of extra-record evidence
Judicial review in this case is conducted “solely on the administrative record before the agency prior to approval.” “Extra record evidence” is only admissible if the evidence could not have been produced with the exercise of reasonable diligence or was improperly excluded at the administrative hearing. The discovery sought by Golden Door does not “fit[] either of the limited exceptions for post-administrative hearing discovery.”
2. No prejudice
Golden Door was not prejudiced because it had introduced “thousands of pages in the administrative record.”
Golden Door did not exercise “reasonable diligence to place evidence on the record at the administrative hearing to show that the County was impermissibly deleting documents from the administrative record.” “Had Golden Door wished to include e-mails routinely deleted by the County . . . it could have made a timely request to the County to preserve them.”
4. Failure to prove documents were destroyed
Golden Door did not make “any proper . . . showing that County employees destroyed any documents that they should have retained to allow them to conduct discovery to provide proof of such destruction.” Golden Door‘s “bald assertion that the County has improperly destroyed documents [is] unsupported by any credible evidence . . . .”
5. The 60-day automatic deletion policy is lawful
6. No PRA discovery
Discovery is also not available under the PRA because “Golden Door has provided no substantiation for its allegations that the County has engaged in bad faith destruction of documents it was required to retain in a CEQA case.”
7. No constructive possession
The County is not in constructive possession of documents held by Dudek and by LL&G and, therefore, need not produce those.
Documents shared between Newland and the County are protected from disclosure by the common interest doctrine.
M. The First Writ Petition in the Appellate Court
In October 2019, Plaintiffs filed a petition in this court seeking a writ of mandate directing the trial court to grant the motions to compel, or in the alternative, “to enter judgment” in their favor on the ground that the County violated
N. Second Set of Motions to Compel, and the County‘s Motion to Quash
Meanwhile, the County had produced a privilege log identifying 1,952 documents. Asserting the log was inadequate, the CEQA Action plaintiffs filed a motion to compel an amended privilege log.
Attempting to obtain copies of Project related e-mails that the County had destroyed, Golden Door had also served several of the EIR‘s environmental consultants (consultants) with business record subpoenas.11 When the consultants refused production, Golden Door filed another motion to compel, asserting that “[d]iscovery of documents under the [c]onsultants’ possession . . . may be the only means to recover information that the County concedes has been permanently deleted and is irrecoverable.”
The CEQA Action plaintiffs also filed a motion to compel Newland to provide further responses to a second request for production of documents. That request sought contracts, agreements, “or any other legally binding” document concerning the performance of services relating to the Project between Newland and the consultants.
Golden Door also sought to depose thе County‘s person most knowledgeable about the County‘s document retention policies and procedures of public hearings. The County filed a motion to quash the deposition notice and sought monetary sanctions.
O. Referee‘s Rulings
The referee denied the motions to compel on the grounds that (1) the superior court‘s adoption of the referee‘s prior rulings and this court‘s summary denial of Golden Door‘s first writ petition was “rule of the case,” and (2) “[t]hese motions are all predicated on the same flawed legal arguments already rejected by the . . . Court of Appeal.” The referee granted the County‘s motion to quash and awarded $7,425 in sanctions. The superior court adopted this ruling, but struck the sanctions.
In December 2019, Plaintiffs filed another mandate petition in this court, challenging the denial of the second set of motions to compel and the order granting the motion to quash. A week later, the California Supreme Court granted Golden Door‘s petition for review of this court‘s summary denial of the first writ petition. (Golden Door Properties v. Superior Court, case No. S258564, rev. granted Dec. 11, 2019.) The Supreme Court transferred the matter back to this court with directions to issue an order to show cause. After doing so, we also issued an order to show cause on the second writ petition (No. D076924) and consolidated these two proceedings.12
Q. Motions to Augment the Record of Proceedings and The Third Writ Petition
Meanwhile, in October 2019 the CEQA Action plaintiffs filed in the superior court a motion to augment the record of proceedings with documents “the County has omitted from the record.” Petitioners in the CBD Action also filed a motion to augment to include “material that they submitted to the County well in advance of the County‘s approval of the Project and certification of the EIR.”
The superior court mostly denied the motion, agreeing only that the record of proceedings should be augmented to include (1) new documents the County agreed to include from the Records Action; (2) 11 documents the County inadvertently excluded and which the County has agreed to include; and (3) “the few attachments to documents
Plaintiffs filed a (third) writ petition in this court, challenging this ruling (case No. D076993). We issued an order to show cause and сonsolidated it with the two other pending petitions.13
DISCUSSION
I. THE WRIT PETITIONS ARE NOT MOOT
A. Factual Background
On March 3, 2020, by referendum San Diego County voters disapproved the general plan amendment for the Project.14 A few weeks later, Newland informed the County that “[d]ue solely to the referendum vote on the General Plan Amendment, we have decided to take steps to seek withdrawal of the Newland Sierra Project Approvals.” Newland asked the Board to “take official action to rescind the Newland Sierra Project Approvals . . . for the sole reason stated.”
In April 2020, the Board rescinded and vacated the Project‘s EIR, General Plan Amendment, specific plan, zoning change, statement of reasons to eliminate access to mineral resources, and amendment to the resource protection ordinance to add an
B. Legal Principles
“[A] moot case is one in which there may have been an actual or ripe controversy at the outset, but due to intervening events, the case has lost that essential character and, thus, no longer presents a viable context in which the court can grant effectual relief to resolve the matter.” (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222.) For example, “a lawsuit challenging the validity of city resolutions to approve the construction of a retail development project became moot once that project was substantially completed. [Citation.] A proceeding challenging a civil service eligibility list . . . was found to be moot once the former list had expired and been superseded by a new list.” (Ibid.)
Under CEQA, “[t]he purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.” (
Citing Yucaipa, the County and Newland contend these proceedings are moot because the Board rescinded “all Project approvals and the EIR certification.” They assert that the writ petitions have “the end goal of undermining the Project‘s EIR and setting aside the Project approvals.” The County and Newland contend that “no ‘live controversy’ remains to be decided” because the discovery requests that are the subject of these writ proceedings “are predicated on the alleged incomplete CEQA administrative record that is no longer needed.”
However, the County has not rescinded “all Project approvals.” As Golden Door points out, there are several Project-related approvals that the Board did not rescind or vacate. The Board did not rescind or vacate the County‘s approval of the Project‘s tentative map. Likewise, as part of the Project approvals, the Board required certain road modifications and an updated Transportation Impact Fee Program to incorporate
Yucaipa does not apply where the challenged approvals have not all been rescinded. (See Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1225, fn. 6.) The writ petitions are not moot because rescission of Project approvals is incomplete.
D. The Petitions Are Not Moot Because Newland Has Indicated an Intent to Proceed with the Project
In the superior court, Newland‘s attorney stated that Newland had spent $10 million on the EIR—and even with an adverse outcome on the referendum—“[t]here are a number of things” Newland could do to keep the Project viable. Newland‘s attorney elaborated:
“[Newland‘s attorney]: That EIR cost $10 million to prepare. That EIR has independent value if it is judicially validated by this court. [¶] We‘re entitled to know if that EIR under CEQA is valid or not regardless of whether there‘s a vote. So we could use that EIR, if judicially validated, fоr the other project approvals; we can use it for federal and state permitting. . . .
“The court: But if the referendum goes against you, can the Newland Sierra project be built?
“[Newland‘s attorney]: Your Honor, it‘s going to be—that‘s a tough question to answer because—because their referendum cherry-picked one of the many approvals, just the General Plan Amendment. We brought a specific plan, we brought a rezone, we brought a tentative map. Those are not the subject of the referendum.
“The court: But if the General Plan doesn‘t allow for it, then how can we have a project?
“[Newland‘s attorney]: So maybe we—maybe there‘s a way. . . . [¶] [I]f the vote is adverse, we can decide how [the validated EIR] can be used to amend a project application, whether we‘ve got to go back and seek additional project approval to fix the General Plan Amendment. There are a number of things we can do. . . . (Italics added.) [¶] If [the referendum vote is] not favorable, if we still have an EIR that‘s valid, maybe we can amend a project approval request. Maybe we can do—there are other things we can do. But if we have to go back and redo an EIR which took four years to do and $10 million, that‘s just not an appropriate part of a CEQA case . . . .
“The court: But if the General Plan doesn‘t allow it to be built—
“[Newland‘s attorney]: Then maybe there is a way we can—after the vote, maybe there‘s another project application we can make, and we can rely on that valid EIR . . . . We might be able to make a new project application and we won‘t have to go through a four-year effort . . . . [¶] . . . [¶]
“The court: So you would just come up with a different project?
“[Newland‘s attorney]: We could maybe come up with a different project. . . . [¶] [I]f the one project approval, the General Plan Amendment, if that discretionary project approval is overturned by way of the referendum, there might be other amended discretionary project approvals we can seek to correct it.”16
E. Even If Moot, We Exercise Discretion to Decide the Cases
The appellate court has the inherent power to retain a moot case under three discretionary exceptions: (1) the case presents an issue of broad public interest that is likely to recur; (2) the parties’ controversy may recur; and (3) “a material question
By granting review and directing this court to vacate its dismissal and issue an order to show cause, the Supreme Court implicitly determined the e-mail destruction issue is an important one with statewide significance. Moreover, a reasonable conclusion from above-quoted colloquy between the superior court and Newland‘s attorney is that the issues will likely recur. As such, Cook v. Craig (1976) 55 Cal.App.3d 773 is instructive. There, plaintiffs submitted a PRA request for certain California Highway Patrol (CHP) procedures governing citizens’ complaints of police misconduct. (Id. at p. 777.) While the case was pending, the CHP voluntarily disclosed the information sought. (Id. at pp. 779-780.) However, there was no assurance that the CHP‘s voluntary disclosure had been complete. (Id. at p. 780.) Moreover, the CHP continued to maintain that it could withhold similar information in the future. (Ibid.) The court found the matter affected the public generally, could recur, and declined to dismiss the case as moot. (Ibid.)
A similar analysis is even more compelling here, where (1) Newland‘s attorney has indicated the Project will likely return; and (2) the County insists it may lawfully destroy
II. THE COUNTY‘S E-MAIL DESTRUCTION POLICY IS UNLAWFUL WHEN APPLIED TO A CEQA CASE UNDER SECTION 21167.6
A. Section 21167.6
Section 21167.6 provides in part:
“Notwithstanding any other law, in all actions or proceedings brought pursuant to Section 21167 [alleging CEQA noncompliance], all of the following shall apply: [¶] . . . [¶]
“(e) The record of proceedings shall include, but is not limited to, all of the following items: [¶] . . . [¶]
“(7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project. [¶] . . . [¶]
“(10) Any other written materials relevant to the respondent public agency‘s compliance with this division or to its decision on the merits of the project, including . . . all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.”
This statute has been interpreted to include “‘pretty much everything that ever came near a proposed development or to the agency‘s compliance with CEQA in
Plaintiffs contend that by mandating the contents of the record of proceedings, section 21167.6 necessarily requires that such writings not be destroyed before the record is prepared. The issue appears to be one of first impression; accordingly, we begin with principles of statutory interpretation.
B. Section 21167.6 is Mandatory and Broadly Inclusive
“In interpreting statutes, we begin with the plain and commonsense meaning of the language of the statute, considering it in the context of the statutory framework as a whole to determine its scope and purpose, with a goal of harmonizing the parts of the statutes. [Citation.] Where the language is clear, we follow the plain meaning of the statute, unless doing so would result in absurd consequences unintended by the Legislature.” (In re Marriage of Brewster and Clevenger (2020) 45 Cal.App.5th 481, 502-503.)
Section 21167.6 is mandatory in two respects. First, it applies “[n]otwithstanding any other law.” This “declares the legislative intent to override all contrary law. [Citation.] By use of this term, the Legislature expresses its intent ‘to have the specific
Second, as used in the Public Resources Code, the word “shall” is mandatory. (
In addition to being mandatory, by using “all” and “any,” section 21167.6 is also broadly inclusive. The record of proceedings must contain “[a]ll written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project.” (
Section 21167.6 also requires the record of proceedings to include “[a]ny other written materials relevant to the respondent public agency‘s compliance with this division or to its decision on the merits of the project, including . . . all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.” (
Interpreting section 21167.6 to require that documents within its scope be retained is also consistent with core CEQA policies. “If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392.) “Political accountability, informed self-government and environmental protection are promoted by the information and disclosure functions of CEQA.” (POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 715, fn. 23.)
The County contends that section 21167.6 “does not mandate document retention” but instead “lists documents to be included in a CEQA record.” We fail to see the distinction. It would be pointless for the Legislature to have enumerated mandatory contents of the record of proceedings if, at the same time, a lead agency could delete such
Moreover, the evidentiary record will consist of the record of proceedings, with only limited opportunities to augment that record. (See 2 Kostka & Zischke, Practice Under the Environmental Quality Act (Cont. Ed. Bar 2020 update), § 23.49 (Kostka & Zischke).) Therefore, a complete and thorough record under section 21167.6 is crucial to enable the judicial branch to fulfill its CEQA role in assuring the agency‘s determinations are lawful and supported by substantial evidence.
In light of the plain language in section 21167.6 and these policies, we hold that a lead agency may not destroy, but rather must retain writings section 21167.6 mandates for inclusion in the record of proceedings.
Disagreeing with this interpretation and citing section 21083.1, the County asserts that courts are “prohibited from applying CEQA or CEQA Guidelines to impose requirements beyond those explicitly stated in CEQA.”19 However, our interpretation of section 21167.6 complies with section 21083.1. As explained, section 21167.6 is explicitly mandatory (“shall“) and inclusive (“any” and “all“). To give effect to the
C. CEQA Guidelines on Document Retention Are Not Exclusive
In asserting that section 21167.6 should not be construed to require document retention, the County contends that “the CEQA Guidelines make clear which types of documents must be retained for specific periods of time.” For example, a lead agency must retain comments on a draft EIR and must retain the final EIR “for a reasonable period of time.” (
Notes
“The referee: What‘s the section that you keep referring to?
“Mr. Garrett: Public Resources Code 21167.6.
“The referee: And that‘s cited?
“Mr. Garrett: Yes.”