FRIENDS OF THE KANGAROO RAT v. CALIFORNIA DEPARTMENT OF CORRECTIONS

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

FRIENDS OF THE KANGAROO RAT, Plaintiff and Appellant, v. The CALIFORNIA DEPARTMENT OF CORRECTIONS, Defendant and Respondent.

No. F040956.

Decided: August 18, 2003

Erica Etelson,Ellen Berry, Tom Brush and Babak Naficy, Culver City, attorneys for Plaintiff and Appellant. Bill Lockyer, Attorney General, Louis R. Mauro, Senior Assistant Attorney General, Catherine M. Van Aken, Meg Halloran and Evelyn M. Matteucci, Deputy Attorneys General, for Defendant and Respondent.

OPINION

Appellant Friends of the Kangaroo Rat (hereinafter “Friends” or “appellant”) challenges the legal sufficiency of a subsequent environmental impact report (SEIR) prepared and certified by the California Department of Corrections (CDC) for a prison construction project (the “Delano II” prison) in Kern County.   Appellant's first court challenge to the SEIR was successful.   The court found the cumulative impacts analysis of the SEIR to be deficient, and issued a writ of mandate ordering CDC to prepare and circulate a so-called “revised cumulative impacts analysis” (RCIA).   This RCIA then became part of the SEIR. Appellant again challenged the SEIR. Appellant contended that SEIR's cumulative impacts analysis (i.e., the RCIA) was still deficient, and that some new information contained in the RCIA required preparation of yet another SEIR. The court rejected appellant's second challenge and ruled in favor of CDC and of the adequacy of RCIA and the SEIR. On this appeal Friends contends that the final subsequent environmental impact report (“SEIR”) was deficient for three reasons:  (1) for procedural reasons which we shall explain later on in detail, CDC should have prepared yet another subsequent EIR further addressing the impacts of supplying water to the project;  (2) the analysis of the proposed project's cumulative impacts on traffic was inadequate;  and (3) the SEIR failed to adequately consider feasible mitigation measures that would reduce a significant cumulative impact caused by the conversion of important farmland to nonagricultural use.   Friends refers to these three contentions, in shorthand fashion, as its “water issue,” its “traffic issue,” and its “farmland issue.”   CDC responds by contending that Friends' water issue has been waived by the failure of Friends (and of any commenter) to raise it administratively, and that appellant's traffic issue and farmland issue are without merit.

In this opinion, we will begin with a somewhat general and abbreviated statement of pertinent facts and procedural history of this case.   We will then set forth our standard of review of the superior court's decision.   Finally, we will address the “water issue” (in part “I” below), the “traffic issue” (part “II”), and the “farmland issue” (part “III”).   We will set forth additional facts pertinent to each of these three issues in our discussions of each such issue.   As we shall explain, we agree with CDC (and with the trial court) that appellant's “water issue” has been waived by a failure to exhaust administrative remedies, and that appellant's other two issues are without merit.   We will affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In 1995, CDC certified an environmental impact report (EIR), required under the California Environmental Quality Act (CEQA), (Pub. Resources Code, § 21000, et seq.) 1 prior to construction of the prison in Kern County.   The EIR evaluated a facility to accommodate up to 4,180 inmates on a 400-acre site.   The EIR was certified, but the project was not funded.

In 1999, the Governor signed urgency legislation authorizing construction of Delano II. (Stats.1999, ch. 54, § 1.) Upon receiving this authorization, CDC, in accordance with CEQA Guidelines section 15162, began the exhaustive process of preparing a Subsequent EIR (SEIR) to address the potential environmental impacts of the proposed prison, which would accommodate 5,160 inmates on a 480-acre site adjacent to the western corporate limits of the City of Delano, and 0.5 miles from North Kern State Prison (NKSP).

On February 11, 2000, CDC distributed to public agencies and the general public a draft SEIR (DSEIR) for Delano II. A 45-day public review period was provided for the DSEIR in accordance with Guidelines section 15105.   In addition, a public hearing was held during which oral comments on the DSEIR were received from five commenters.

On May 22, 2000, CDC published all written and oral comments on the DSEIR, and CDC's responses to them.   The Responses to Comments, along with the DSEIR and Technical Appendices, Findings of Fact, Statement of Overriding Considerations, and Mitigation Monitoring Program, constituted the Final SEIR. The SEIR was certified and a Notice of Determination (NOD) was signed by the Director of CDC on June 7, 2000, and filed with the State Clearinghouse on June 9, 2000. All of these steps were in meticulous compliance with CEQA's procedural requirements.

On July 10, 2000, three groups sued, challenging the approval and certification of the SEIR for Delano II. On October 23, 2000, CDC filed a motion to strike, asserting that petitioners Critical Resistance and the National Lawyers Guild Prison Law Project lacked standing to bring the CEQA action because their interest in the project had nothing to do with the environment.   Rather, as the groups themselves stated, their true objective was to stop all prison construction on political grounds.   The third petitioner was a group calling itself Friends of the Kangaroo Rat.

On November 15, 2000, the trial judge granted CDC's Motion to Strike, with leave to amend.  On November 30, 2000, petitioners filed a First Amended Petition for Writ of Mandate, attempting to establish standing and again challenging CDC's certification of the SEIR.

On June 7, 2001, the trial court ruled that Critical Resistance and the Prison Law Project lacked standing to pursue the CEQA action. Neither organization appealed that determination.   Moreover, the court upheld CDC's SEIR on all but one of the challenges raised in the amended petition.   The court found that one portion of the SEIR, the cumulative impact analysis, was deficient because it did not adequately address the effect of past projects and existing projects, and because it failed to provide a summary of the expected environmental effects of the pending and proposed projects listed in the SEIR. The court ordered CDC to prepare a revised cumulative impacts analysis (RCIA).   The court ruled that “[a]lthough the analysis need not be detailed, it must be accomplished in at least a cursory fashion.”

CDC promptly complied.   On August 15, 2001, in compliance with Guidelines section 15202(a), respondent sent out its RCIA for public review.   The comprehensive 39-page RCIA, supported by a technical appendix, addressed in detail the expected environmental effects of past, present and proposed projects in the vicinity of Delano II. The document includes an historical section back to 1850, and a detailed consideration of projects developed in the past 15 years.

Upon completion of the 45-day public comment process, CDC prepared a Response to Comments.   On December 5, 2001, the Director of CDC, after reviewing and considering the RCIA, certified the Final SEIR. On December 13, 2001, the Director adopted Findings of Fact, a Statement of Overriding Considerations, a Mitigation Monitoring Program for the project, and approved construction of the prison conditioned upon numerous mitigation measures.   The NOD was filed on December 13, 2001.

 On December 21, 2001, respondent filed its Return to the Writ and a Motion for Discharge of the Writ. Friends opposed the discharge, and a hearing was held on January 28, 2002.   On April 4, 2002, the trial court issued its ruling granting respondent's motion to discharge the peremptory writ.   The court found that CDC had fully complied with the writ and all CEQA requirements.   Friends now appeals from the court's April 2002 order discharging the writ.2

STANDARD OF REVIEW

 We recently explained our standard of review of a superior court's judgment in a CEQA action in Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390-1391, 133 Cal.Rptr.2d 718:

“In reviewing challenges to the certification of an EIR or approval of a CUP, the court must determine whether the lead agency abused its discretion by failing to proceed in a manner required by law or by making a determination or decision that is not supported by substantial evidence. (§ 21168.5;  Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 241-242, 82 Cal.Rptr.2d 436 (Fairview ).)  ‘Provided the EIR complies with CEQA, the [b]oard may approve the project even if it would create significant and unmitigable impacts on the environment.’  (70 Cal.App.4th at p. 242, 82 Cal.Rptr.2d 436.)  ‘The appellate court reviews the administrative record independently;  the trial court's conclusions are not binding on it.’   (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375-1376, 43 Cal.Rptr.2d 170.)

“When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure.   (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 954, 91 Cal.Rptr.2d 66 (Amador ).)  ‘The EIR must contain facts and analysis, not just the bare conclusions of the agency.’  (Santiago Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 831, 173 Cal.Rptr. 602.)   ‘An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’  (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405, 253 Cal.Rptr. 426, 764 P.2d 278 (Laurel Heights ).)  Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible.   When experts in a subject area dispute the conclusions reached by other experts whose studies were used in drafting the EIR, the EIR need only summarize the main points of disagreement and explain the agency's reasons for accepting one set of judgments instead of another.  (CEQA Guidelines, § 15151;  Remy et al., Guide to the Cal. Environmental Quality Act (10th ed.1999) p. 353 (Guide to CEQA).)

“A court's proper role in reviewing a challenged EIR is not to determine whether the EIR's ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.  (Laurel Heights, supra, 47 Cal.3d at p. 407, 253 Cal.Rptr. 426, 764 P.2d 278.)   Substantial evidence is defined as ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’  (CEQA Guidelines, § 15384, subd. (a);  San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 722, 32 Cal.Rptr.2d 704 (Raptor ).)

“․ Noncompliance with CEQA's information disclosure requirements is not per se reversible;  prejudice must be shown. (§ 21005, subd. (b).)  This court has previously explained, ‘[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’  (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712, 270 Cal.Rptr. 650 (Farm Bureau );  see also Raptor, supra, 27 Cal.App.4th at p. 722, 32 Cal.Rptr.2d 704.)   Numerous authorities have followed and applied this prejudice standard.  (See, e.g., Cadiz [Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74], 95, 99 Cal.Rptr.2d 378;  Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482, 492, 82 Cal.Rptr.2d 705;  Amador, supra, 76 Cal.App.4th at p. 946, 91 Cal.Rptr.2d 66;  Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, 730, 12 Cal.Rptr.2d 785.)”

I.-II. ***

III.

THE “FARMLAND ISSUE”A. Facts

The RCIA pointed out that the Delano II prison project would convert 480 acres of farmland to an institutional use.   It further pointed out that the past, present and probable future projects described in the RCIA would convert an additional 1,820 acres of farmland to non-agricultural use.   It concluded that although this total of 2,300 acres of agricultural land to be converted to non-agricultural use “is a small portion of the 700,000 acres of Important Farmland in Kern County,” this cumulative impact is considered significant.   The RCIA also concluded that this impact could not be mitigated.  “The proposed project's incremental contribution to the cumulative conversion of Important Farmland to non-agricultural uses is considered a significant impact.   No mitigation is available to reduce this impact to a less-than-significant level;  it is therefore significant and unavoidable.”

Appellant's October 1, 2001 comment letter responded to the above-quoted portion of the RCIA as follows:  “This conclusion is not supported by any evidence in the record.   Nor is it based on any analysis or discussion.   The RCIA fails to consider, for example, the possibility that the impact of this conversion could be reduced by creating agricultural easements over Important Farmlands in the vicinity of the project site.”   CDC responded to appellant's comment letter as follows:

The commenter contends that there is not substantial evidence to support the RCIA conclusion that no mitigation is available to reduce the loss of Important Farmland to a less-than-significant level, suggests that this impact could be reduced by the creation of agricultural easements over Important Farmlands in the vicinity of the project site, and asserts that CDC should analyze alternative project locations to avoid conversion of Important Farmlands.

“The RCIA conclusion about the lack of mitigation for Important Farmland conversion is appropriate.   CDC does not need to perform additional analysis of alternative project locations and has met the requirements of CEQA. The RCIA does not discuss mitigation for the conversion of Important Farmland to non-agricultural uses because there is no known mitigation for this impact.   The State CEQA Guidelines require that an EIR discuss feasible measures that would avoid or substantially reduce a project's significant environmental effects.   They also require that if mitigation exists that is considered infeasible, the infeasibility be discussed.   The State CEQA Guidelines, however, do not require that a lead agency present evidence of the non-existence of mitigation.

“The suggestion that CDC purchase an easement over existing farmland is novel.   This land use impact was identified in SEIR Volumes I through III, and the expanded cumulative analysis did not identify either a new or more severe cumulative impact on farmland.   The same commenter proffered previously, both in comments on SEIR Volume I and in litigation on the SEIR, that this impact was not mitigated, but provided no suggested mitigation.   CDC concludes the same here.   No details are provided on how an easement would mitigate loss of farmland, how such an easement would be implemented, etc.   As we can only infer the suggestion here, CDC would pay the owner of existing agricultural land to continue to farm the land.   This would not mitigate the loss of farmland;  it would not create new farmland or compensate for the loss of farmland that has already occurred.   The only other options would be to acquire for conversion to agricultural use (1) land that is presently undeveloped and not in agricultural use but that could be suitable for cultivation as Important Farmland (i.e., fallow land) or (2) land that is already developed.   Based on field visits and a review of the draft Valley Floor Habitat Conservation Plan (VFHCP), it can be concluded that fallow agricultural land or natural open space land is likely to contain natural habitat that may potentially be used by special-status wildlife species, such as Tipton kangaroo rats;  converting such land to agricultural use to mitigate a land use impact could therefore entail introducing disturbance (agricultural operations) into potential habitat, which would result in impacts on these species.   This is not environmentally beneficial. Converting land developed with residential, commercial, or industrial uses to Important Farmland is infeasible for obvious reasons.

“As noted above, mitigation as defined in CEQA is an action that would avoid or substantially reduce the effect of a project, and the commenter's suggested mitigation would not do so.”

Appellant then contended in the superior court that CDC failed to consider reasonable mitigation measures that could reduce or eliminate the significant cumulative impact caused by the conversion of important farmland to nonagricultural use.   Appellant also argued that CDC's conclusions that there was no mitigation available, or that if an agricultural easement were considered mitigation it would not be feasible, are not supported by substantial evidence.   The superior court rejected this argument.   The court's ruling stated:

“As the response found at AR 3512 demonstrates, the Respondent did address the feasibility of an agricultural easement.   It simply concluded that such an easement would not be feasible.

“The analysis contained in the response to Petitioner's suggestion that a 480 acre easement in farmland be utilized to offset the loss of 480 acres to the construction project contemplated herein adequately discusses the reasons why such an easement would not constitute a potentially feasible mitigation measure that could potentially reduce or eliminate the impact of the conversion of land here contemplated.   Consequently, CDC's failure to give further consideration to that option does not render the RCIA analysis inadequate.”

B. The Superior Court Correctly Ruled That The Cumulative Impacts Analysis of Loss of Farmland Was Adequate

 Appellant again argues to this court that CDC failed to consider a feasible mitigation measure that would reduce significant cumulative impact caused by the conversion of important farmland to nonagricultural use.   We agree with the superior court that appellant's contention is without merit.   Guidelines section 15130, subdivision (a) provides that an EIR “shall discuss cumulative impacts of a project when the project's incremental effect is cumulatively considerable․” Guidelines section 15065, subdivision (c) states in pertinent part:  “ ‘Cumulatively considerable’ means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects as defined in Section 15130.”   Subdivision (b) of Guidelines section 15130 states in pertinent part:  “The following elements are necessary to an adequate discussion of significant cumulative impacts:  ․ [¶] ․ [¶] (3) A reasonable analysis of the cumulative impacts of the relevant projects.   An EIR shall examine reasonable, feasible options for mitigating or avoiding the project's contribution to any significant cumulative effects.”   When the list-of-projects approach to cumulative impacts analysis is used, the “relevant projects” referred to in subdivision (b)(3) of Guidelines section 15130 are the projects in the “list of past, present, and probable future projects producing related or cumulative impacts․” (Guidelines, § 15130, subd. (b)(1)(A).)  The CDC correctly observed that once the prison is built and the 480 acres of farmland at that site have been converted to what the RCIA calls “an institutional use” (i.e., a prison), the 480 acres of farmland will be gone.   Similarly, when the 2,300 acres of past, present and probable future projects are completed, 2,300 acres of farmland will be gone.   The only option for “mitigating or avoiding the project's contribution to” loss of farmland would be to not build the prison.  (Guidelines, § 15130, subd. (b)(3).)  This is in essence the “ ‘No project’ alternative” which was required to be discussed in the SEIR (see Guidelines, § 15126.6, subd. (e)) and which was in fact discussed at section 7.4 of the SEIR.

Appellant's suggestion that an agricultural easement be created assumes, incorrectly in our view, that the creation of an agricultural easement would constitute “mitigation.”   We disagree.   Guidelines section 15370 states:

“ ‘Mitigation’ includes:

“(a) Avoiding the impact altogether by not taking a certain action or parts of an action.

“(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

“(c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment.

“(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

“(e) Compensating for the impact by replacing or providing substitute resources or environments.”

Appellant's suggestion, the creation of an agricultural easement, does not appear to fall into any of these five categories.   The easement would presumably not be on the site of one of the “probable future projects” identified in the RCIA. (Guidelines § 15130, subd. (b)(1)(A).)  It would thus not reduce or mitigate the loss of farmland caused by this project or by the “probable future projects” (Guidelines, § 15130, subd. (b)(1)(A), § 15065, subd. (c).) The suggested agricultural easement would presumably not create any new farmland where no farmland presently exists (at least appellant does not so claim).   Thus an agricultural easement would not compensate for a loss of farmland “by replacing or providing substitute resources or environments” (Guidelines § 15370, subd. (e)), and would not fall within subdivision (e) of Guidelines § 15370.   At best, such an easement might prevent the future conversion of some as yet unidentified parcel of farmland to a nonagricultural use.   Although appellant might deem this to be a desirable result, appellant's desire for such a result does turn appellant's proposed action into mitigation of the cumulative impact (on farmland) of this project and of the past, present, and probable future projects properly considered in the RCIA.

Furthermore, even if appellant's suggested agricultural easement is deemed to be a “mitigation” measure (see Guidelines, § 15126.4, subd. (a) and § 15370), the superior court was still correct in concluding that the RCIA was adequate.   CDC did consider appellant's suggestion, and explained why appellant's suggestion was not deemed feasible.  (See Guidelines, § 15126.4 and § 15364;  and Pub. Res.Code, § 21061.1.) The CDC was not required to pay someone to continue farming land that was already being farmed, and which was not the site of any probable future project.   A public agency “ ‘need not, under CEQA, adopt every nickel and dime mitigation scheme brought to its attention or proposed in the project EIR.’ ”  (A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1809, 16 Cal.Rptr.2d 358;  San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d 1502, 1519, 258 Cal.Rptr. 267.)

DISPOSITION

The April 2002 “order discharging peremptory writ of mandate” is affirmed.   Costs to respondent.

FOOTNOTES

1.   All further section references will be to the Public Resources Code unless otherwise indicated.

2.   The court issued a judgment in June 2001 when it ordered the preparation of the revised cumulative impacts analysis.   Although appellant's brief states that appellant is appealing from the judgment, the notice of appeal states that appellant is appealing from the April 2002 order discharging the writ, and appellant's arguments attack the April 2002 order discharging the writ.   The appeal from the April 2002 order is thus authorized by Code of Civil Procedure section 904.1, subdivision (a)(2) as an appeal from a post-judgment order.  “An appeal ․ may be taken ․:  (1) From a judgment ․ (2) From an order made after a judgment made appealable by paragraph (1).”  (Code Civ. Proc., § 904.1, subd. (a).)

FOOTNOTE.   See footnote *, ante.

ARDAIZ, P.J.

WE CONCUR:  DIBIASO and LEVY, JJ.