In October 2014, the State Lands Commission (SLC) approved the San Francisco Bay and Delta Sand Mining Project (the project), which authorizes real parties in interest Hanson Marine Operations, Inc., Morris Tug & Barge, Inc., and Suisun Associates (collectively, Hanson) to continue dredge mining sand from sovereign lands under the San Francisco Bay pursuant to 10-year mineral extraction leases. San Francisco Baykeeper, Inc. (Baykeeper), filed a
STATEMENT OF FACTS
A. The Project
In 1998, the SLC granted Hanson's predecessors-in-interest 10-year mineral extraction leases authorizing the dredge mining of sand from delineated areas under the Central San Francisco Bay, Suisun Bay and the western Sacramento-San Joaquin River Delta. In 2006, Hanson applied for an extension of the leases for an additional 10 years. The lease parcels are all sovereign lands, owned by the State of California subject to the public trust, and managed by the SLC. Because the leases expired before the SLC decided whether to extend them, it authorized Hanson to continue mining on a month-to-month basis while it reviewed an application for five new 10-year mineral extraction leases of essentially the same parcels of sovereign lands. Four of these leases, along with another lease of a privately owned parcel in the Suisun Bay, comprise the project that has become the subject of this litigation.
The purpose of Hanson's dredge mining operation is to obtain marine aggregate sand for construction purposes within the greater San Francisco area. Bay sand is composed of "alluvial sand and gravel resulting from erosion and sediment transport" which, in contrast to other types of crushed stone aggregate, has rounded edges making it desirable for construction because it is easier to use and causes less wear on equipment. The mining method Hanson employs involves the use of a trailing arm hydraulic suction dredge and barge. A tugboat positions the barge over the mining site, and the hydraulic suction dredge creates a flurry of water and sand, which mobilizes the sand and then pumps it into the barge. A typical mining event lasts approximately three to four hours.
B. Environmental Review
The SLC determined this project may have a significant adverse impact on the environment necessitating preparation of an environmental impact report (EIR). In July 2007, it published a "Notice of Preparation" (NOP) of the EIR. In a July 2010 draft EIR (the 2010 draft EIR), SLC staff examined "the potential environmental effects of the proposed new leases and continuing sand mining for an additional 10-year period." The public was invited to submit comments on the 2010 Draft EIR in writing and in person at two public meetings that were held in August 2010. Thereafter, SLC staff determined that changes to the project constituted significant new information which required recirculating a full revised draft EIR in November 2011 (the 2011 Revised Draft EIR).
The change most relevant to this appeal pertained to the EIR's definition of the "baseline" condition against which to measure the environmental impacts of the project. The 2010 Draft EIR had defined that baseline as the volume of sand mined from the lease parcels in 2007, the year the NOP for this EIR was published. However, in the 2011 Revised Draft EIR, SLC staff concluded that "a baseline that accounts for mining levels over several years provides a more accurate measure of the current level of mining activity against which to evaluate Project impacts." Therefore, the baseline used in the 2011 Revised Draft EIR was the average annual volume of sand mined in the proposed project area per year from 2002 to 2007.
In September 2012, the SLC published a final EIR (Final EIR) for the project. In that document, SLC staff provided responses to 12 sets of comments on the 2011 Revised Draft EIR and additional "Master Responses" which addressed three topics that were the subject of multiple comments: (1) the definition of the baseline used to evaluate the impacts of the project; (2) the potential adverse impact of the project on the erosion of the San
The Final EIR's analyses of the environmental impacts of the project examined "the differences between the proposed sand mining operations and the sand mining that [occurred], on average, under the lease agreements when the NOP was issued." SLC staff concluded the project "would have the potential for several significant impacts, including impacts on Biological Resources, Hazards and Hazardous Materials, Air Quality, Cultural Resources, and Land Use and Recreation." All but one of these impacts could be reduced through mitigation to a less than significant level. The one impact which was considered both a significant project impact and a significant cumulative impact even after all appropriate mitigation measures were applied was that the "[r]egular operation of sand mining activities will cause entrainment and mortality of delta and longfin spelt."
The Final EIR also evaluated four project alternatives: (1) a "No Project Alternative" under which the SLC would not issue the proposed mining leases and other regulatory agencies would not renew permits necessary for Hanson to continue mining on public lands or on the privately held parcel within the project area; (2) a "Long-term Management Strategy Conformance Alternative," which would require Hanson to comply with temporal and special restrictions on dredging contained in the "Long-Term Management Strategy for the Placement of Dredged Material in the San Francisco Bay Region Management Plan 2001" (italics omitted), but would otherwise approve the project as proposed by Hanson, including the proposed mining volumes; (3) a "Clamshell Dredge Mining Alternative," which would require Hanson to employ an alternative to its suction dredge mining method; and (4) a "Reduced Project Alternative" which would "reduce permitted annual mining volumes in all of the lease areas to a level equivalent to the current baseline mining volumes (i.e., the 2002 to 2007 average mined at each Project parcel)."
According to the Final EIR, the No Project Alternative would avoid most of the significant impacts of the project, but would also "require the Bay Area construction industry to acquire sand from other, likely more distant sources, with consequent increases in air emissions, including greenhouse gases." Therefore, this No Project Alternative was "not considered environmentally
C. The SLC's Decision
On October 19, 2012, the SLC certified the Final EIR and approved a modified version of the project, which was referred to as the "Reduced Project Alternative with Increased Volume Option." The SLC adopted the Reduced Project Alternative proposed in the Final EIR, but added an "Option" which provided that the total volume of sand Hanson would be allowed to mine could be increased to the proposed project levels if Hanson complied with conditions demonstrating a reduction of the two most significant adverse impacts of the project: (1) the entrainment and mortality of delta and longfin smelt, and (2) the emission of criteria pollutants.
The SLC formalized its decision in a "Statement of Findings and Statement of Overriding Considerations." The SLC made findings addressing each of the significant environmental impacts identified in the final EIR. The SLC's decision included a "Statement of Overriding Considerations" because the final EIR identified significant impacts of the approved project that "cannot feasibly be mitigated to below a level of significance."
D. The Mandate Proceeding
In November 2012, Baykeeper filed a petition for writ of mandate to compel the SLC to set aside its approval of the project for failing to comply with CEQA. Pursuant to a March 2013 amendment, Baykeeper added a cause of action for violating the public trust doctrine. Initially, the superior court sustained a demurrer to Baykeeper's public trust claim, concluding that this doctrine does not create a separate cause of action for enforcing CEQA. Subsequently, however, this court granted Baykeeper's petition for a writ of mandate and directed the superior court to vacate its prior order and overrule the demurrer to the public trust cause of action. As we explained in our order, the issue whether sand mining is a public trust use is distinct from CEQA. On April 28, 2014, the trial court denied Baykeeper's mandate petition, finding that the Final EIR satisfied all the pertinent requirements of CEQA, and that the mineral leases did not violate the public trust doctrine.
A. Issues on Appeal
"An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is
"We review an agency's determinations and decisions for abuse of discretion. An agency abuses its discretion when it fails to proceed in a manner required by law, or when its determination or decision is not supported by substantial evidence. [Citations.] Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated CEQA requirements, we accord greater deference to the agency's substantive factual conclusions. [Citation.] In CEQA cases, as in other mandamus cases, we independently review the administrative record under the same standard of review that governs the trial court. [Citation.]" (Treasure Island, supra, 227 Cal.App.4th at p. 1045.)
With these standards in mind, we turn to Baykeeper's specific complaints about the Final EIR, which are (1) the baseline for assessing projects is not supported by the record; (2) SLC staff failed to analyze properly project impacts on soil erosion and to elicit public comment on significant new information about this issue which was included in the Final EIR; (3) SLC staff criteria to evaluate project impacts on mineral resources; and (4) the SLC failed to notify and consult with interested agencies about the project.
B. The Baseline
Baykeeper contends that the SLC abused its discretion by using a baseline which did not accurately reflect existing conditions at the mining sites.
As noted in our factual summary, when the SLC started its environmental review it used the volume of sand mined from the leased parcels during 2007, the year the NOP was filed, as its baseline for measuring project impacts. However, it subsequently determined that a five-year average of annual mining volumes was a better indicator of existing mining conditions than the 2007 rate. The 2011 Revised Draft EIR, which was circulated for agency and public comment, explained how and why the baseline was changed. SLC staff
The Final EIR further explained the baseline change in responses to comments on the 2011 Revised Draft EIR and in a Master Response about the baseline. SLC staff acknowledged that the time of NOP publication normally constitutes the baseline condition for the project, but also found that "[i]n some instances, as here, where the level of an existing operation can vary substantially from year to year, a lead agency may opt to consider an average level of operations over some period of years to characterize that existing operation." SLC staff also opined that using the average volume of sand mined per year from 2002 to 2007 "recognizes that sand mining activity levels can fluctuate substantially from year to year depending on market demand and other factors: the average of several years best characterizes the overall level of mining activity at the time the NOP was published." Furthermore, staff explained that its baseline was conservative because the intensity of sand mining operations during the 2002 through 2007 period was lower than the average for the entire 10-year period covered by Hanson's prior set of leases and was also lower than permitted levels for that prior period.
Baykeeper contends the Final EIR's entire impacts analysis was deficient because the baseline conditions were artificially inflated and not reflective of current mining conditions in the project area.
In this case, the SLC determined that a five-year average of annual mining volumes was a better indicator of existing mining conditions than the 2007 rate in light of the financial crisis of 2007, and the general nature of the mining industry. Those findings are supported by substantial evidence including data from the California Geological Survey that "California's residential construction slowdown during  contributed to a significant decrease in both production and value of construction aggregate (sand and gravel and crushed stone)." Statistics regarding the permitted and actual sand mining volumes from the lease areas during the previous lease period also support the SLC's conclusions about the fluid nature of mining activities in general. Thus, the SLC did not abuse its discretion by adopting a baseline that accounted for mining conditions during the five-year period prior to the filing of the NOP.
Baykeeper insists the baseline analysis was inadequate because the Final EIR "did not disclose, let alone analyze, more recent sand mining levels, which dropped substantially after 2007, during the precise period between the publication of the Draft EIR and the Revised Draft EIR." In fact, the SLC did address this issue in the comments section of the Final EIR where it explained that "inclusion of the unusually low mining volumes in years after NOP publication during the economic downturn commonly considered the most pronounced recession since the Great Depression would distort the baseline by understating the overall levels of mining in years prior to the expiration of the previous leases and commencement of EIR preparation." Baykeeper's disagreement with the Final EIR's analysis is insufficient to establish that the SLC abused its discretion.
C. Erosion and Sedimentation
Baykeeper contends that the Final EIR's discussion of the environmental impacts of the project on the erosion of coastal beaches is (1) inadequate because EIR preparers did not actually analyze the cumulative impacts of commercial sand mining on erosion of the coast and Bar, and (2) improper because it included significant new information that was not circulated for public or agency comment.
The potential direct and cumulative impacts of the project on soil erosion were considered in a section of the Final EIR, which analyzed impacts on hydrology, geomorphology, and water quality. This analysis included a comprehensive discussion of the relevant environmental setting, including the regional setting and climate, surface water hydrology and drainage, estuarine circulation, sediment dynamics, bathymetry, and morphology. Significantly, SLC staff "estimated that the net change in volume within the Central Bay sand mining lease areas was a loss of approximately 11.6 million cubic yards of sediment from 1997 to 2008," and recognized that this volumetric loss "is roughly equivalent to the reported volumes of sand mined from the Central Bay lease areas over this same time period."
The Final EIR used a 2009 study by Coast & Harbor Engineering (the CHE study) to evaluate the project impacts on erosion or sedimentation. The CHE study included a sand mining resource evaluation as well as an impact assessment of this specific project. CHE performed a bathymetry analysis of
In addition to finding a less than significant project impact, the Final EIR separately considered the potential "cumulative effects on sediment transport and coastal morphology." (Capitalization omitted.) SLC staff recognized that some studies "suggest" that sand mining in the bay contributes to the observed erosion of the coastal beaches, the theory being that sand-sized sediment from the Bar is transported through wave energy and distributed along coastal beaches and, therefore, any erosion of the Bar caused by sand mining also substantially contributes to the erosion of coastal beaches. Despite these suggestions, the Final EIR found that "a direct or empirical causal link between commercial sand extraction from the Bay and erosion of the San Francisco Bar has not been established," noting that other plausible explanations for the erosion of the Bar include increase in wave height and changes in the tidal prism of the bay. Furthermore, the Final EIR found that, although sand mining has caused a reduction in the average annual net sediment within the bay-delta estuary, "it is not clear if and how the losses due to mining translate to observed changes in other areas within or just outside of the estuary, including the San Francisco Bar."
As noted in our factual summary, a Master Response in the Final EIR addressed several comments the SLC received about the impacts of the project on sediment transport and coastal morphology. To better respond to those comments, SLC staff arranged for the "EIR preparers to undertake supplemental analysis, including new modeling, to further investigate and quantify the potential for the Project to reduce the volume of sediment transported through the Golden Gate to the Bar and Ocean Beach."
The new information SLC staff reviewed included two recent but not yet published scientific articles authored by United States Geological Survey
CHE performed the supplemental modeling and sediment transport analysis and its conclusions were incorporated into the Final EIR's discussion of project impacts on sediment transport and coastal morphology. According to the Final EIR, CHE's supplemental findings reinforced the conclusions in the 2011 Revised Draft EIR regarding the less than significant project specific and cumulative impacts on coastal and Bar erosion. In this regard, the Final EIR stated: "[S]upplemental analysis of the previous modeling effort and the results of new modeling presented in this EIR confirm the findings and conclusions previously reached for [the project impact] and for cumulative effects of the Project on sediment transport, as reiterated below. The original CHE study presented in Appendix G of the EIR, and supplemental analyses confirm the EIR conclusions regarding [the project impact] . . . and the potential cumulative effects of the Project on sediment transport and coastal morphology. The results of these analyses clarify and quantify the conclusion reached in Appendix G of the EIR: if the Project is approved and sand mining continues at the proposed volume for a 10-year period, there is likely to be a reduction of 5,000-7,000 cubic yards of sediment transported from Central Bay through the Golden Gate annually. This range represents approximately 0.2-0.3 percent of the long-term rate of erosion of the Bar, as calculated by Hanes and Barnard (2007). Consistent with the conclusions presented in this EIR, the [SLC] considers this Project-associated reduction in sediment transport, and any secondary effects on coastal morphology, to be a less-than-significant impact, and a less-than-cumulatively considerable contribution to a cumulative impact." (Fn. omitted.)
2. Adequacy of Cumulative Impacts Analysis
Baykeeper contends the cumulative impact analysis was incomplete because it did not include an actual assessment of the impact of this project in combination with other relevant past, present and future sand projects.
The Guidelines require that an EIR discuss "cumulative impacts of a project when the project's incremental effect is cumulatively considerable." (Guidelines, § 15130, subd. (a).) If, on the other hand, the cumulative impact is insignificant or if the project's incremental contribution to the impact is not cumulatively considerable, the lead agency is not required to conduct a full cumulative impacts analysis, but the EIR must include a brief explanation of the basis for the agency's finding(s). (Ibid.; City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 909 [98 Cal.Rptr.3d 137] (City of Long Beach).
As discussed above, the Final EIR provided more than a brief explanation for its conclusions regarding the project's incremental contribution to the cumulative impact on sediment transport and coastal erosion. Because SLC staff found that impact was less than significant, a more comprehensive analysis of the cumulative impact of past, present, and future sand mining projects on sediment transport and coastal erosion was not required. (Guidelines, § 15130, subd. (a); City of Long Beach, supra, 176 Cal.App.4th at p. 909.)
Baykeeper contends that the Final EIR's conclusion regarding the incremental effect of the project was erroneous because it was based on an improper "ratio" theory, pursuant to which SLC staff found the project's incremental impact was relatively insignificant by comparing it to the overall problem of coastal erosion. To support this argument, Baykeeper relies on Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692 [270 Cal.Rptr. 650] (Kings County). The Kings County court found that an EIR prepared for a project to develop a 26.4-megawatt coal-fired cogeneration plant in the City of Hanford contained "insufficient information in several respects for the Hanford City Council to have made an informed decision whether to approve the project." (Id. at p. 707.)
Among its many problems, the Kings County EIR contained insufficient information about the cumulative impacts of the project on air quality within the valley-wide area. (Kings County, supra, 221 Cal.App.3d at pp. 718-721.)
Here, as discussed above, the Final EIR's analysis of cumulative impacts of bay mining on the erosion of the Bar and coastal beaches discussed efforts by CHE to quantify the potential contribution of the project to the erosion of the Bar. If, as Baykeeper contends, that exercise produced an irrelevant ratio, it was only one minor component of the EIR's cumulative impacts analysis. Indeed, this attempt to measure the project's contribution to the erosion of the Bar was a supplemental component of the Final EIR that was added to reinforce the impact conclusions previously reached in the 2011 Revised Draft EIR. Thus, the Final EIR bears little resemblance to the cursory
3. EIR Circulation Requirement
Baykeeper contends that the SLC violated CEQA by failing to recirculate the Final EIR because the 2012 Barnard articles and the CHE supplemental modeling and analysis constituted significant new information about the causal link between sediment transport and coastal erosion.
"[C]ourts must defer to an agency's explicit or implicit decision not to recirculate a draft EIR so long as it is supported by substantial evidence. [Citations.] Indeed, . . . an agency's determination not to recirculate is given `substantial deference' and is presumed `to be correct.'" (Treasure Island, supra, 227 Cal.App.4th at pp. 1063-1064.) Thus, the appellant bears the burden of proving substantial evidence does not support the agency's decision not to recirculate an EIR. (Western Placer Citizens for an Agricultural & Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890, 903 [50 Cal.Rptr.3d 799].)
In the present case, substantial evidence supports the SLC's decision not to recirculate the Final EIR. The 2012 Barnard articles and the supplemental CHE study were relevant to the scientific controversy regarding the impact of sand mining on coastal erosion. However, that controversy had been fully disclosed and considered in the 2011 Revised Draft EIR, and this new information did not alter any of the substantive conclusions about the
Baykeeper's interpretation of the new studies is fundamentally different than the interpretation adopted by the SLC. It views the 2012 Barnard articles as establishing an undeniable connection between sand mining and coastal erosion and the supplemental CHE modeling as disclosing for the first time that the project will have a measurable quantifiable impact on sediment transport and coastal erosion. We will not endeavor to resolve the parties' lengthy argument about the proper interpretation of these studies and their implications with respect to the controversy regarding the effect of sand mining on coastal erosion. "Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts." (Guidelines, § 15151.) As discussed above, the 2011 Revised Draft EIR thoroughly addressed the controversy about impacts of sand mining on sediment transport and coastal erosion. The new studies discussed in the Final EIR did not significantly alter the main points of disagreement. Therefore, the SLC's decision not to recirculate is supported by substantial evidence.
D. Impacts on Mineral Resources
Seeking de novo review, Baykeeper contends that the SLC misconstrued CEQA provisions governing proper analysis of project impacts on mineral resources.
The Final EIR evaluated "the potential loss of availability of known mineral resources, including sand and construction aggregate associated with the proposed [project] over the next 10 years." This analysis was limited to minerals within sediments on or under the bay floor, of which only two were identified: (1) sand and gravel deposits valuable as construction aggregate or construction fill material and (2) oyster shells that have been commercially mined for their mineral content since 1924. To measure the impacts of the project on these two mineral resources, the EIR used threshold of significance criteria that are set forth in appendix G of the CEQA guidelines (Appendix G).
According to the Final EIR, these threshold criteria "reflect State and local policy that recognizes the importance of mineral resources in meeting society's needs and are intended to ensure the disclosure of a proposed project's potential to preclude mineral extraction, for example by developing a land use over or adjacent to a deposit of mineral resources that was incompatible with or that would preclude future mining activities."
Applying these criteria, SLC staff determined that oyster shell deposits are located far from the lease areas in the shallow southern reaches of the bay. Thus, the Final EIR concluded that the proposed operations "would not interfere with mining of these known oyster shell beds nor would they preclude the future development of mineral resources other than sand, should such resources be identified within any of the lease areas in the future."
With respect to sand—the object of the mining project—SLC staff acknowledged that an additional 10 years of sand mining would reduce the amount of sand that would be available for future mining in most of the lease areas. It also found that the mining of a nonrenewable mineral resource will generally deplete that resource. However, staff concluded that the purpose of a CEQA impact analysis was not to assess whether mining would deplete the mined resource, but rather whether the project would interfere with important mineral resource deposit areas that should be conserved for purposes of extraction of the valued mineral and not be lost to an incompatible use. Because the project was compatible with this environmental goal, the SLC concluded it did not have a significant adverse impact on known mineral resources.
One of the Master Responses in the Final EIR addressed multiple comments the SLC received about the project impacts on mineral resources. In that response, SLC staff rejected the contention that Appendix G required it to assess whether the project will deplete a sand resource, reiterating that mining "is inherently not a sustainable activity: it extracts raw materials from the earth at a rate greater than the natural processes that created the raw
Baykeeper contends that the SLC committed a prejudicial abuse of discretion by misconstruing the Appendix G thresholds for measuring impacts on mineral resources. According to Baykeeper, the plain language of those standards mandated that the Final EIR evaluate the impact resulting from the allegedly permanent depletion of sand minerals. We disagree with this argument for at least three reasons.
Second, Baykeeper fails to provide authority supporting its interpretation of the Appendix G thresholds pertaining to mineral resources. The Final EIR's use of the Appendix G standards to measure impacts on accessibility to a known mineral resource that would be valuable to the region or locality is consistent with state policies regarding the regulation of land uses that are incompatible with mineral extraction. (See, e.g., § 2711, subd. (a) ["the extraction of minerals is essential to the continued economic well-being of the state and to the needs of the society . . ."]; § 2711, subd. (d) ["the production and development of local mineral resources that help maintain a strong economy and that are necessary to build the state's infrastructure are vital to reducing transportation emissions that result from the distribution of hundreds of millions of tons of construction aggregates that are used annually
Finally, "`"[t]he substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to the scope of an EIR's analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions." [Citation.]'" (Oakland Heritage Alliance, supra, 195 Cal.App.4th at p. 898.) Here, the conclusion in the Final EIR that the mining activities authorized by the project will not have a significant adverse impact on mineral resources is supported by evidence that the project will not lead to the loss of the availability of a mineral resource, but instead will provide the citizens of this state with access to that very resource.
Baykeeper disputes this last point, arguing that the depletion of bay sand authorized by the project will necessarily have "significant, permanent effects" on the availability of mineral resources because the project "will preclude the mining of this resource by any other entity, at any other time." But this theory is premised on Baykeeper's interpretation of the Appendix G thresholds, which would measure the depletion of a mineral resource, rather than the interpretation of these CEQA thresholds that the SLC applied, which considered availability in terms of access. For the reasons discussed above, Baykeeper has failed to establish that CEQA required the SLC to adopt Baykeeper's interpretation of Appendix G.
E. Notice and Consultation
Baykeeper contends that the SLC violated CEQA by failing to consult with the California Coastal Commission and the City of San Francisco before it certified the Final EIR.
1. CEQA Requirements
CEQA further requires that before completing the EIR, the lead agency "shall consult with, and obtain comments from, each responsible agency, trustee agency, any public agency that has jurisdiction by law with respect to the project, and any city or county that borders on a city or county within which the project is located . . . ." (§ 21104.)
Baykeeper contends that the SLC failed to comply with notice and consultation requirements applicable to trustee agencies because it did not consult with the California Coastal Commission before deciding to prepare an EIR for the project (§ 21080.3), provide the California Coastal Commission with notice of the 2007 NOP (§ 21080.4), or consult with that agency at any time prior to certifying the Final EIR (§ 21104). Without independent analysis, Baykeeper also contends the SLC violated section 21104 by failing to consult with the City of San Francisco before it certified the Final EIR.
Alternatively, the SLC contends that it substantially complied with CEQA's notice and consultation requirements because the record establishes that both the California Coastal Commission and the city received actual notice of the preparation of an EIR for this project, had the opportunity to comment on the project, and ultimately declined to do so.
To support this substantial compliance theory, the SLC invokes Guidelines section 15207, which states: "If any public agency or person who is consulted with regard to an EIR or negative declaration fails to comment within a reasonable time as specified by the lead agency, it shall be assumed, absent a request for a specific extension of time, that such agency or person has no comment to make." In Citizens for East Shore Parks, supra, 202 Cal.App.4th 549,
In contrast to Citizens for East Shore Parks, supra, 202 Cal.App.4th at page 567, the record before us does not show that the SLC attempted to consult with either the city or the California Coastal Commission before it approved this project. The SLC cites to evidence that the city received actual notice of the 2007 NOP, but does not even contend the city was provided with any version of the EIR. Furthermore, the record reflects that the State Clearinghouse provided a copy of the 2010 Draft EIR to "selected state agencies for review," that the California Coastal Commission was one of those agencies, and that "no state agencies submitted comments" on the 2010 Draft EIR.
Courts have found that "`"[f]ull compliance with the letter of CEQA is essential to the maintenance of its important public purpose." [Citation.] "`[W]e must be satisfied that [administrative] agencies have fully complied with the procedural requirements of CEQA, since only in this way can the important public purposes of CEQA be protected from subversion.' [Citation.]"'" (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949, 959 [130 Cal.Rptr.3d 527] (Schenck).) By the same token however, a violation of CEQA notice and consultation requirements requires reversal only upon proof of prejudice. (Schenck, at p. 959.) "The `error is prejudicial where failure to comply with the law results in "a subversion of the purposes of CEQA by omitting information from the environmental review process . . . ."' [Citation.]" (Ibid.; see also § 21005, subd. (a).)
In its appellant's opening brief, Baykeeper characterizes the failure to consult with the city and California Coastal Commission as a prejudicial abuse of discretion, but it does not identify any information that was omitted from the environmental review process that would have been provided by these other agencies. In its reply brief, Baykeeper contends that the California Coastal Commission would have provided crucial information about the impacts of the project on coastal erosion if had it been given the opportunity to consult. Finding no evidence to support this argument in the appellate
Baykeeper contends the January 2015 letter is relevant to establish that violations of CEQA's notice and consultation requirements precluded "relevant information from being presented" to the SLC (quoting § 21005, subd. (a)), and it requests that this court take judicial notice of the letter as an official act of the executive branch. (See Evid. Code, § 452.) Without resolving the parties' dispute as to whether the January 2015 letter was an official act, we deny the request for judicial notice because Baykeeper fails to substantiate its theory of relevancy. (Golden Gate Land Holdings LLC v. East Bay Regional Park Dist. (2013) 215 Cal.App.4th 353, 366 [155 Cal.Rptr.3d 546] ["Only relevant evidence is admissible by judicial notice."].)
The primary problem with Baykeeper's theory is that the January 2015 letter expresses current opinions of California Coastal Commission staff as opposed to opinions it held prior to October 2012 when the SLC completed its five-year environmental review of this project. Indeed, the only record evidence on this issue shows that the California Coastal Commission had the opportunity to comment on the 2010 Draft EIR in 2010 and elected not to do so.
Arguably, the additional information in the 2011 Revised Draft EIR about the controversy regarding the effect of sand mining on coastal erosion might have stimulated the California Coastal Commission to comment on the project. However, even if we make this assumption, the January 2015 letter is not relevant absent some proof that it contains material information that should have been considered during the environmental review process. (Schenck, supra, 198 Cal.App.4th at p. 960 ["The critical factor is that even without notice to the [agency] the information gathering and presentation mechanisms of CEQA were not subverted or even compromised."].)
Here, the record demonstrates that the issue of coastal erosion was thoroughly explored during the CEQA review process, not just by SLC staff, but by interested citizens and agencies including the BCDC. Baykeeper does not identify any material information in the January 2015 letter that was
Thus, we conclude that the appellate record shows that the SLC violated CEQA requirements designed to ensure that it consult with affected agencies including the California Coastal Commission and the City of San Francisco. However, Baykeeper's failure to demonstrate that these violations resulted in the omission of pertinent information from the environmental review process requires that we reject its contention that there was a prejudicial violation of CEQA notice and consultation requirements in this case.
PUBLIC TRUST DISCUSSION
A. Issue on Appeal
The question on appeal is whether the SLC violated the public trust doctrine by failing to consider whether the sand mining leases constitute a permissible use of public trust property. Conceding that it did not conduct an inquiry or make findings under the public trust doctrine, the SLC takes the position that, as the public trustee of submerged lands under the bay, it had plenary authority to approve the mining leases without making any findings under the public trust doctrine.
B. Guiding Principles
The range of public trust uses is broad, encompassing not just navigation, commerce, and fishing, but also the public right to hunt, bathe or swim. (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521 [162 Cal.Rptr. 327, 606 P.2d 362] (City of Berkeley).) Furthermore, the concept of a public use is flexible, accommodating changing public needs. (National Audubon, supra, 33 Cal.3d at p. 434.) For example, an increasingly important public use is the preservation of trust lands "in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.' [Citation.]" (Id. at pp. 434-435.)
There is no set "procedural matrix" for determining state compliance with the public trust doctrine. (Citizens for East Shore Parks, supra, 202 Cal.App.4th at p. 576.) However, "`[a]ny action which will adversely affect traditional public rights in trust lands is a matter of general public interest and should therefore be made only if there has been full consideration of the state's public interest in the matter; such actions should not be taken in some fragmentary and publicly invisible way. Only with such a safeguard can there b[e] any assurance that the public interest will get adequate public attention.' [Citation.]" (Zack's, supra, 165 Cal.App.4th at pp. 1188-1189.)
The SLC acknowledges that it did not make any findings about this project under the public doctrine, implicitly conceding that it did not consider whether Hanson's mining project is a proper use of trust property. Nevertheless, the SLC takes the position that it did not violate the public trust doctrine for three reasons: First, sand mining is indisputably a public trust use of
1. Private Sand Mining Is Not Per Se a Public Trust Use
The SLC contends that it was not required to consider whether the project violates the public trust doctrine because sand mining is categorically a public trust use and, in National Audubon, supra, 33 Cal.3d 419, our Supreme Court expressly confirmed that the public trustee has sole discretion to prefer one public trust use over any other.
The SLC contends that courts have recognized that the production of mineral resources for commercial purposes constitutes a public trust use of state land since 1928 when our Supreme Court decided Boone v. Kingsbury (1928) 206 Cal. 148 (Boone). The issue in Boone was whether a statute violated the public trust doctrine by authorizing the granting of permits to California residents to prospect for oil and gas on "tidal and submerged lands and to lease the same on a royalty basis." (Id. at p. 154.) The Boone court held the Legislature had "fully considered all questions of fact and policy germane to the subject, and found that oil-wells could be operated in the soil of the ocean without substantially impairing any of the rights for which said lands are held in trust for the benefit of the state." (Id. at p. 193.) In reaching this decision, the court found, among other things, that evidence in the record was sufficient to establish that the mining activities authorized by the statute would not substantially interfere with navigation or fishery. The court also found that the interception of oil, gas and mineral deposits that could be reduced to useful purposes would be a value to commerce and that gasoline, in particular, was "so closely allied with state and national welfare as to make its production a matter of state and national concern" and a clear "`public benefit.'" (Id. at p. 181.)
The SLC interprets Boone as establishing a rule that mineral extraction is per se a public trust use of sovereign lands. We disagree with this interpretation for two independent reasons. First, the SLC relies exclusively on excerpts from Boone discussing the commercial and public benefits of oil drilling. (See Boone, supra, 206 Cal. at p. 181.) Even if that discussion could be construed as a formal holding that oil drilling is a public use, Boone did not address the fundamentally different activity of sand mining under the San Francisco Bay. Indeed, as the Boone case illustrates, the Legislature views oil and gas drilling differently from other types of mining activities. (See, e.g., § 6830.1, subd. (a) [legislative finding "[t]hat the people of the State of California have a direct and primary interest in assuring the production of the optimum quantities of oil and gas from lands owned by the state, and that a minimum of oil and gas be left wasted and unrecovered in such lands"].)
The SLC suggests that the Legislature has conclusively determined that sand mining is a public use of trust property because it has made a "specific finding that the extraction of minerals is `essential' for the commercial well-being of California." To support this argument, the SLC cites section 2711, subdivision (a), which states in full: "The Legislature hereby finds and declares 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." But, section 2711 is a provision of the Surface Mining and Reclamation Act of 1975 (§ 2710 et seq.), a law which does not regulate mining activities on state lands subject to the public trust. To the extent legislative findings under that 1975 act are relevant here, the SLC overlooks the legislative finding that "the state's mineral resources are vital, finite, and important natural resources and the responsible protection and development of these mineral resources is vital to a sustainable California." (§ 2711, subd. (f).)
Finally, the SLC makes the factual argument that Hanson's mining operation fits within the traditional trust uses of navigation and commerce because a tugboat and barge are used to reach the mining site, to dredge the sand, and to transport it for commercial purposes. The SLC maintains that a "more water-dependent and navigational use could hardly be imagined." But this factual argument highlights the flawed definition of a public trust use which runs throughout the SLC's arguments in this appeal. The trust doctrine protects and promotes public uses including commerce and navigation. It cannot justify the private use of public property on the basis that the private party engaged in a water dependent activity for its own private commercial purpose. Rather such a private use is permissible only if it is consistent with the protections afforded by the public trust doctrine.
The SLC's broad concept of a public trust use as encompassing any private activities that benefit commerce is unsupported by case law and inconsistent with the guiding principles we discuss above. Therefore, we reject its theory that commercial sand mining of submerged lands under the San Francisco Bay automatically qualifies as a public trust use.
2. The Public Trust Doctrine Applies to Mining Leases
The SLC argues in the alternative that "the National Audubon analysis does not apply" to SLC decisions to authorize mining leases. To support this alternative argument, the SLC offers the following theory: Because the National Audubon court analyzed water diversion permits that had the effect of alienating permanently a public trust resource, that court's holding that the public trust doctrine imposes affirmative duties on the state or its trustee applies only in cases which involve a permanent alienation of a trust resource. Thus, the SLC contends, since mineral extraction is not a permanent alienation of the trust res (citing Boone, supra, 206 Cal. at p. 182), a mining lease does not trigger the affirmative trust duties discussed in National Audubon, supra, 33 Cal.4th at page 438.
First, we are not persuaded by the SLC's factual contention that bay sand mining does not deplete a trust resource. Boone, supra, 206 Cal. at page 182 is inapposite, as that case involved oil drilling as opposed to sand mining.
Our conclusion is also consistent with the provisions of the Public Resources Code which confer the SLC's public trust jurisdiction. (§ 6001 et seq.) The SLC's jurisdiction over ungranted submerged lands derives from section 6301, which provides that the SLC "may lease or otherwise dispose of [trusts] lands, as provided by law." (§ 6301.) Thus, the SLC is not exempt from the law, but must comply with the requirements of the common law trust doctrine when administering trust lands. (See, e.g., Citizens for East Shore Parks, supra, 202 Cal.App.4th at p. 571 [SLC, "acting on behalf of the state, can lease tidelands and submerged lands for such uses consistent with the trust"].) The SLC's trust obligations are also reflected in statutory provisions regulating the leasing of public lands. (See, e.g., §§ 6895 ["whenever the lands for which a lease is sought are tide and submerged lands, the [SLC] may divide the lands into the size and number of parcels as the [SLC] determines will not substantially impair the public rights to navigation and
For all these reasons, we conclude that Hanson's application for 10-year sand mining leases on sovereign lands did trigger the SLC's affirmative duty under National Audubon, supra, 33 Cal.3d at page 446, "to take the public trust into account . . . and to protect public trust uses whenever feasible." (Fn. omitted.)
3. The SLC Failed to Discharge Its Trust Obligations
The SLC maintains it fulfilled its public trust duties by conducting a CEQA review. To support this contention, it cites two cases: State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 776 [39 Cal.Rptr.3d 189] (State Water); and Citizens for East Shore Parks, supra, 202 Cal.App.4th 549.
State Water, supra, 136 Cal.App.4th 674 resolved eight appeals and three cross-appeals in seven coordinated cases arising out of a five-year proceeding before the State Water Resources Control Board (Water Board). That litigation concerned the implementation of a 1995 water quality control plan that was the culmination of a 40-year process to solve water quality problems in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary. (Id. at p. 687.) Among the countless interrelated issues addressed in the more than 150 pages of judicial analysis was whether the Water Board violated the public trust doctrine because the 1995 plan did not (1) resolve all conflicts between public trust values and competing water values in favor of the trust, or (2) take every feasible measure to protect the Chinook salmon. (Id. at p. 778.)
The State Water court rejected this public trust challenge as untimely and unfounded. (State Water, supra, 136 Cal.App.4th at p. 778.) In implementing the 1995 plan, the board had considered all demands that were being made on the waters of the bay-delta and fulfilled its duties to consider and protect not just fish and wildlife but "all of the other beneficial uses to be made of water in the Bay-Delta." (Ibid.) Thus the court found, in dicta, that, to the extent the Water Board implemented the 1995 plan, it also complied with its public trust obligations. However, to the extent that the Water Board failed to implement that plan, the appellants were entitled to writ relief and the "public trust doctrine entitle[d] them to nothing more." (Id. at p. 779.)
In Citizens for East Shore Parks, supra, 202 Cal.App.4th 549, the SLC approved a 30-year lease authorizing Chevron to continue operating a marine terminal on public trust land adjacent to the company's oil refinery. After concluding that the lease renewal did not violate CEQA, the court addressed the appellants' separate challenge under the public trust doctrine. The appellants conceded that the maintenance and operation of the marine terminal was "a permissible public trust use," but argued that before the SLC could approve the lease renewal, the public trust doctrine additionally required that it consider other public trust uses of the property and that it impose mitigation measures to reduce to the extent possible the impacts of the project on those other public trust uses. (Citizens for East Shore Parks, at p. 569.)
The Citizens for East Shore Parks court held that "where the Lands Commission continued a permissible and long-standing trust use and conducted adequate review under CEQA, there was no violation of the public trust doctrine." (Citizens for East Shore Parks, supra, 202 Cal.App.4th at pp. 569-570.) The court reasoned that the additional procedural requirements that the appellants proposed were not supported by public trust law. (Id. at pp. 576-577.) To the contrary, the court found, "imposing such procedural constraints would be inconsistent with the recognition that the state is free to choose between public trust uses and that selecting one trust use `in preference to . . . [an]other cannot reasonably be said to be an abuse of . . . discretion.' [Citation]" (Id. at pp. 576-577.)
The Citizens for East Shore Parks court also opined that requirements imposed by regulatory schemes like CEQA can often satisfy the state's obligations under the public trust doctrine. (Citizens for East Shore Parks, supra, 202 Cal.App.4th at pp. 577-578.) Reasoning that the trust doctrine and CEQA impose similar obligations, the court found that the CEQA review process performed in that case "encompassed discussion of other public trust uses" of the property. (Citizens for East Shore Parks, at p. 578.) Thus, the court held that when no change is being made to a public trust use and there has been compliance with CEQA, the public trust doctrine does not independently impose an additional impact requirement mandating the consideration of additional project alternatives and mitigation measures in connection with those public trust uses. (Citizens for East Shore Parks, at p. 578.)
Disputing this last point, the SLC contends that it did fulfill its affirmative duty to consider the public trust in a section of the Final EIR which discussed project impacts on existing land and recreational uses in the area and whether the project was consistent with applicable land use plans and policies. The record citations that the SLC has provided to us consist of excerpts from the Final EIR finding that, without mitigation, the project will conflict with policies in applicable land use plans which require that "mining operations be conducted in an environmentally sound manner; that agencies protect public trust resources; and that mining operations be carried out in a manner that minimizes interference with critical wildlife activities." The SLC concluded, however, that mitigation measures for other impacts of the project "would also reduce . . . conflicts with applicable land use plans and policies to a less-than-significant level," and therefore, no additional mitigation would be required. These record citations do not demonstrate the SLC fulfilled its public trust obligations during the environmental review process. To the contrary, the brief acknowledgment of the obligation of other agencies to protect public trust resources reinforces our conclusion that the SLC did not implicitly consider its own obligations under the public trust doctrine as part of its CEQA review of this project.
There may be some activities which unquestionably constitute public trust uses and, by the same token, there may be activities which are so obviously consistent with the public trust so as to require only a cursory consideration
The order denying the petition for writ of mandate is affirmed to the extent it finds that the Final EIR complies with CEQA. That part of the trial court's order finding that the SLC complied with the public trust doctrine is hereby reversed, and the trial court is directed to grant the writ of mandate to that extent consistent with this opinion.
Rivera, J., and Streeter, J., concurred.