By Katherine J. Hart
Friends of the Kings River v. County of Fresno (2014) 232 Cal.App.4th 105.
In the most recent CEQA case out of California’s Fifth Appellate District, the court of appeal upheld an EIR certified by the County of Fresno (County) as well as the County’s approvals of a use permit, site plan and reclamation plan for a large mining project.
At issue in the Friends of the Kings River v. County of Fresno, is the Carmelita Mine and Reclamation Project (Project). The Project involves a proposed aggregate mine and related processing plants (i.e., asphalt, ready mix concrete and recycling plants) on a 1,500 acre site at the base of the Sierra Nevada foothills. The site includes active agricultural land (e.g., row crops and stone fruit trees). The site was deemed a Mineral Resource Zone 2 in the 1980s. Of the 1,500 acre site, 898 acres is proposed for up to 22 individual mining cells of approximately 40 acres each; the other 602 acres of the site would remain in tree fruit production. The mining production would produce 1.25 million tons per year of aggregate over approximately 100 years. The reclamation plan calls for 25 percent (or approx. 225 acres) of mined areas to be reclaimed to agricultural land, and 75 percent (or around 674 acres) of the mined areas would become agricultural water ponds.
The County Board of Supervisors certified an EIR and approved a use permit, site plan and reclamation plan on October 16, 2012. The Draft EIR found the following significant and unavoidable impacts: (1) conversion of farmland; (2) air pollutant emissions; (3) odors; and (4) traffic. Only the court’s discussion on the conversion of farmland was certified for publication.
Appeals to State Mining & Geology Board
Petitioner first appealed the approval to the State Mining and Geology Board (SMGB) on October 30, 2012. Petitioner alleged the reclamation plan conflicted with various SMARA requirements. The SMGB denied the County’s approval of the reclamation plan on procedural grounds and remanded it back to the Board for consideration after a new reclamation plan was submitted.
On July 9, 2013, the Board of Supervisors considered the revised reclamation plan (which now included an engineered grading and drainage plan and a post-mining water balance) along with an addendum to the FEIR prepared by the County’s public works department. The Board approved the revised reclamation plan and addendum on August 6, 2013. Petitioner timely filed a second appeal to the SMGB on the revised reclamation plan. On November 14, 2013, the SMGB heard Petitioners’ second appeal and upheld the County’s approval of the CUP and reclamation plan.
On November 2, 2012, while the first appeal to the SMGB was pending, Petitioner filed a CEQA action alleging the County’s EIR failed to sufficiently disclose, analyze and mitigate the Project’s environmental impacts, that the project conflicted with the City’s general plan, and further, that the reclamation plan did not meet SMARA requirements, which appeal was currently pending before SMGB. The trial court denied Petitioner’s petition for writ of mandate and Petitioner appealed timely.
On the issue of whether the SMGB’s initial remanding of Petitioner’s first appeal invalidated the County’s approval of the reclamation plan, the court of appeal held that it did not because the SMGB did not decide that the reclamation plan was not supported by substantial evidence; rather, it only found that the reclamation plan was incomplete for SMARA purposes. The court explained that Section 2775 of SMARA does not require a lead agency to set aside its prior decision when the SMGB remands a reclamation plan for reconsideration. In fact, the court pointed out that the SMGB has no legal authority to set aside a local lead agency’s approval of a reclamation plan.
In that vein, the appellate court then determined that Petitioner’s assertion that the County failed to proceed in a manner required by law also must fail because the SMGB’s granting of the first appeal did not act to set aside or invalidate the County’s reclamation plan. Thus, the County’s reclamation plan was validly adopted prior to the adoption of the CUP.
On the issue of whether the evidence of the SMGB proceedings should be included in the CEQA record, the court of appeal agreed with the County and Real Parties that the documentation should be excluded because it occurred after the County certified the EIR and took action to approve the project and thus, was extra-record evidence.
The majority of the appellate court’s analysis of CEQA issues remains unpublished, but the court ordered publication of its consideration of the mitigation measures for the permanent conversion of agricultural lands. By way of background, the Draft EIR concluded that the permanent conversion of 583 acres of farmland would result in a significant and unavoidable impact and noted that the County does not have a farmland protection program or agricultural conservation banking program to mitigate such losses. The County further noted that even though the applicant has large agricultural holdings upon which easements could be placed, those easements would not reduce the number of acres lost to agricultural production, nor would they increase the number of acres under a Williamson Act contract. Thus, the County deemed agricultural conservation easements (ACEs) to be infeasible. The County required three other mitigation measures as follows: (1) current agricultural use of the site was required to continue until the land is prepared for mining activities; 2) the applicant was required to ensure that 602 acres within the Project site but outside of the surface disturbance boundary would be maintained as an agricultural buffer zone for the life of the CUP (about 100 years), and (3) that the applicant would be required to reclaim mine cells to farmland as adequate materials are generated to file the empty mined cells. Despite these three mitigation measures, the County deemed impacts to farmland to be significant and unavoidable.
Petitioners insisted that ACEs be established. The County refused on the grounds that it had not formally adopted any farmland mitigation program. Additionally, the County noted that only 35 acres or six percent of the project disturbance area was prime farmland – all of which would be replaced by mine reclamation backfill. Furthermore, the County’s record reflected that the reclaimed soils were expected to be 20 percent more productive per acre than once mined due to the removal of rocks in the soil. The County defended its second mitigation measure on the grounds that it would require preservation of farmland at a 1:1 ratio for the life of the project, or 100 years, thus mitigating the temporal loss of agricultural land during the life of the project. Finally, the County determined that its third mitigation measure would accelerate the return to farmland of certain mined areas and assure that 240 acres of the project site would be reclaimed to agricultural use at the earliest point possible. In sum, the County found that “a conservation easement would not mitigate the impact to a less-than-significant level or substantially reduce the severity of the impact, as would Mitigation Measures 1-3.” In a mindful display of deference to the County, the Fifth Appellate District agreed.
Some readers might question whether such a determination conflicts with a First District Court of Appeal decision issued last year in the Masonite Corporation v. County of Mendocino (2013) 218 Cal.App.4th 230 (Masonite) case. In Masonite, the First Appellate District held that “agricultural conservation easements may appropriately mitigate for the direct loss of farmland when a project converts agricultural land to a nonagricultural use, even though an ACE does not replace the onsite resources.” In interpreting the Masonite case, the Fifth Appellate District stated, “We do not read Masonite … 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.” Rather, the Fifth District focused on the fact that the County had the option to consider ACEs as mitigation and could elect to decline to require ACEs because it acted to include the other mitigation measures.
Katherine J. Hart is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.