CITY OF UKIAH v. FORD GRAVEL CO INC

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Court of Appeal, First District, Division 1, California.

CITY OF UKIAH, Plaintiff and Appellant, v. COUNTY OF MENDOCINO et al., Defendants and Appellants; FORD GRAVEL CO., INC., et al., Real Parties in Interest and Respondents.

A031917.

Decided: June 25, 1987

David J. Rapport, City Atty., Ukiah, for plaintiff and appellant. H. Peter Klein, County Counsel and Ronald R. Ball, Chief Deputy County Counsel, Ukiah, for defendants and appellants. Derek J. Simmons, Simmons & Wilhelm, Santa Rosa, for real parties in interest and respondents.

The question presented in this appeal is whether an environmental impact report (EIR) under the provisions of the California Environmental Quality Act (CEQA) was required before county approval of a reclamation plan submitted by a gravel extracting company.

FACTS

Since 1946, real party Ford Gravel Company (Ford) has been commercially extracting gravel from the Russian River.   In 1956 the Mendocino County Board of Supervisors adopted the county's first zoning ordinance.   The zoning ordinance classified the unincorporated area where Ford's gravel operations are conducted to require a use permit for “the establishment of ․ [c]ommercial excavation of natural materials.” (Ord. 359, § 3.32.)

In 1964 Ford, which had not previously obtained a use permit for its gravel activities, sought and obtained a use permit for a gravel processing plant.   And in 1966 Ford obtained a use permit for a “Redi-mix” batch plant.   The permits were issued without conditions or expiration dates.

In 1975 the Legislature enacted the Surface Mining and Reclamation Act (SMARA) regulating surface mining operations.  (Pub. Resources Code, § 2710 et seq.) 1  Section 2770 provides that “no person shall conduct surface mining operations unless a permit is obtained from, and a reclamation plan has been submitted to, and approved by, the lead agency for such operation․”

The permit requirement does not apply, however, to an operator “who has obtained a vested right to conduct surface mining operations prior to January 1, 1976․”  As to such operator, all that is necessary is a reclamation plan.  (§ 2776.)

In 1979, in compliance with the SMARA requirement that local agencies adopt ordinances regulating surface mining (§ 2774), Mendocino County enacted its own ordinance requiring a reclamation plan and either a permit or a vested right to conduct surface mining operations.  (Mendocino County Code [“MCC”], § 22.16.010 et seq.) 2

In 1983, in response to a citizen's complaint, the Mendocino County Planning Commission asked Ford Gravel Company to submit a reclamation plan.   Ford did so, along with a statement of vested right.

For some unknown reason, the county planning department staff treated Ford's reclamation plan as an application for a use permit authorizing gravel extraction.   Accordingly, the planning department undertook an initial study of the environmental effects of the gravel extraction activities and recommended that 21 conditions be imposed upon Ford's “use permit” in order to mitigate environmental effects.   The staff also recommended that a “mitigated” negative declaration be adopted.   After modification of two of the conditions, the planning commission approved the reclamation plan with the conditions imposed and adopted a negative declaration.

Various water suppliers, including appellant City of Ukiah (City), appealed the planning commission's decision to the county board of supervisors.   At this point, however, the planning department staff recommended that an EIR “or equivalent hydrologic study” be prepared.

At the board hearing, the question arose whether CEQA applied since the only matter presented for approval was a reclamation plan, not a use permit.   The hearing was eventually continued (two weeks) to allow the planning department to reexamine the status of the issue before the board.

At the continued hearing, the planning director announced that Ford had a vested right to extract the gravel and thus no use permit was necessary.   Accordingly, the only issue before the board was whether the reclamation plan should be approved.

Ultimately, the board concluded that in light of the limited issue before it, the board would adopt a negative declaration.   The board thereafter approved the reclamation plan subject to certain conditions and biennial review, i.e., November 1985.

City of Ukiah thereupon instituted the underlying mandamus action seeking, inter alia, to compel the county to set aside its approval of Ford's reclamation plan and to mandate submission of an EIR.   After extensive argument, the trial court eventually denied the requested relief.   The City now appeals from the judgment.   The county has also appealed challenging one aspect of the trial court's decision.

DISCUSSION

I.Background

For years considerable controversy has existed in Mendocino County concerning the extraction of gravel from the Russian River—not only by Ford but other gravel companies as well.   The long-standing controversy was fully ventilated during the board hearings.

Local citizens and a City representative expressed their collective concerns that the Russian River was being “degraded.”  (“Degradation” is generally understood by the parties to mean simply that the river bottom is lowering.)

It appears that degradation of the river affects local water supplies in the following manner:  As the river has dropped, so has the water table which recharges the wells from which water is taken.   Moreover, the City obtains some of its supplies from a “Raney collector,” a river well located on the Russian River near Ford's excavation site.   The gravel riverbed serves as a natural filter for the water;  as the gravel cover is reduced, increased amounts of sediment permeate the water supplies.

The gravel company representatives argued that there is no evidence that gravel extraction is the cause of the falling river.   They pointed to other likely causes, including releases of water from the Coyote Valley Dam, increased consumptive uses of river water and the natural forces of the river itself.   Indeed, even those opposing Ford's reclamation plan conceded that the principal cause of the river degradation is unknown.   In fact, streambed degradation is occurring throughout the river system, including areas with little or no gravel extraction operations.

It was repeatedly suggested to the board that a broad-based study of the entire watershed area was necessary in order to determine the true causes of the river dynamics.   It was also emphasized that it would be unfair to require Ford alone to finance the study (EIR) in view of the fact that the scope of the problem transcends Ford's gravel skimming.

The board was informed that if evidence was produced that Ford's activities were harming the river, then the board could take appropriate action including revocation of Ford's use permits and initiation of suit for injunctive relief or damages for maintaining a public nuisance.   It was also noted that other relevant agencies, such as the Department of Fish and Game, Regional Water Resources Control Board, Army Corps of Engineers and County Air Pollution Control District, could likewise revoke permits issued to Ford.

II.

The Negative Declaration

Although the CEQA mandates that public agencies obtain an EIR before approval of a project (§§ 21002.1, 21151), none is required where the agency finds the project will not have a significant effect on the environment (§ 21151).   In such case, the agency merely adopts a negative declaration to that effect.  (§ 21080, subd. (c).)  A negative declaration is inappropriate, however, and an EIR is required whenever “it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.”  (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 118 Cal.Rptr. 34, 529 P.2d 66.)

City vigorously challenges the board's decision to adopt a negative declaration contending that a fair argument was presented to the board that Ford's activities are degrading the river.

The record reflects that the board heard considerable evidence concerning degradation of Russian River.   The principal witness, Ted Goforth, the City Deputy Director of Public Works, conceded he did not know the cause of the degradation.   In response to a question by a board member whether the increased flow of water released from Coyote Valley Dam was the operative cause, Mr. Goforth candidly replied:  “I think at this point anything's a possibility.   I cannot tell you.   I don't know.   I don't know that anyone in this room can tell you for a fact what's causing it.   Probably a combination of factors, yes.”

Moreover, Ford's written reclamation plan and other testimony revealed that Ford extracts gravel on a “sustained yield basis”:  it removes only the amount which has been redeposited by the winter runoff.   And the county planning department staff noted that:  “As long as the amount of gravel being removed did not exceed the amount of gravel recruited each year, no significant impacts upon the resource base would occur.”

Several witnesses theorized that the degradation was due to other forces.   The most frequently mentioned cause was the timing and quantity of water released from the Coyote Valley Dam.   But natural forces (such as winter storms) and increased consumption were also viewed as probable causes.

In rejecting City's argument, the trial court concluded that there was no credible evidence of “any nexus between the drop in the river and the reclamation plan of Ford.”   City argues, however, that both the board and the trial court failed to consider the cumulative impact of Ford's gravel extraction activities in combination with other gravel mining operations on the river.

In view of CEQA's requirement of an analysis of the cumulative effects of a project (Cal.Admin.Code, tit. 14 [hereafter Guidelines], § 15065, subd. (c)), the argument would be persuasive if the “project” under review by the board had been Ford's gravel operations.   But the argument is flawed since Ford's gravel operations were not before the board in the now challenged proceedings.   Rather, the only item subject to approval was Ford's reclamation plan.

 The determination which must be made by a public agency in deciding whether to require an EIR or to adopt a negative declaration is whether the project being approved may have a significant effect on the environment.  (§ 21151.)   A “project” is defined to mean private activities “involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.”  (§ 21065;  see also Guidelines, §§ 15377, 15378, subds. (a)(3), (c).)

 Considerable confusion reigned at the board hearing as to the nature of the project then under review.   Initially, the board—undoubtedly influenced by the planning department's original treatment of the reclamation plan as a permit application—assumed that the project was Ford's gravel extraction activities.   Eventually, the board realized that the only project before it was Ford's reclamation plan.   We think the board's ultimate conclusion was correct.

Ford's underlying activity was, of course, its extraction of gravel from the Russian River.   But that activity did not require a license, permit or other authorization in view of the board's acceptance of its planning director's determination that Ford already possessed a vested right or authority to extract gravel.  (See discussion in Part III, infra.)   Thus, the only matter presented for board approval was Ford's reclamation plan.   Consequently, any environmental inquiry was limited to whether that project would have a significant environmental impact.3

 In approving Ford's reclamation plan, the board imposed 11 conditions requiring Ford to provide detailed information relating to the process of natural reclamation—i.e., restoration of the gravel beds by gravel movement during winter high flows.   Additionally, Ford was required to provide photographs and “cross-sections” of the gravel bar before commencing its operations each year and again following its operations but before the winter rains.   And Ford was also required to submit reports of the actual quantities of gravel removed.   In essence, the current activities called for by Ford's reclamation plan consisted of collection of data and its submission to the planning department.

It is difficult to conceive how such information-gathering activities could have any significant environmental effects.4  Indeed, project classes deemed categorically exempt from CEQA due to lack of a significant environmental effect (§ 21084) include:  “basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource” (Guidelines, § 15306);  “actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment” (Guidelines, § 15307);  “actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment” (Guidelines, § 15308).

Ford's reclamation appears to fall well within the specified exemptions.   Though cognizant of the exemption status, the board elected to forgo a categorical declaration which would have required it to issue a notice of exemption (see Guidelines, § 15065) and, instead, decided to simply find that the project had no significant environmental effects.   That determination is adequately supported by the record before us.   There is no evidence of any significant environmental impact from Ford's reclamation plan.

It bears repetition that the crucial consideration herein was the limited nature of the proceeding:  whether Ford's reclamation plan should be approved.   However, the board also recognized that if evidence were later developed that gravel extraction activities were contributing to the river degradation, the county could undertake appropriate administrative or other remedial actions.   As a result of the virtually unanimous view of the participants that the degradation problem was one of much broader scope, the board ultimately decided to reconvene a gravel committee to study gravel erosion problems on the Russian River.5

There is no reason to believe that the board or other appropriate agencies will fail to take all reasonable actions necessary to protect the Russian River and to preserve its delicate ecosystem.   Should the board fail to faithfully discharge its official responsibilities in that regard, then, of course, the City or other interested parties could seek appropriate judicial relief.6  The present proceeding was simply an improper forum to address the larger issues dealing with the problems of the Russian River in general.

III.

The Use Permit

City challenges the board's premise that Ford had a vested right to engage in gravel mining on the river.   City argues that Ford was required to obtain a use permit for its gravel mining activities which constituted a “project” subject to approval.

The trial court concluded that a use permit for Ford's preexisting gravel operations was unnecessary by virtue of the 1956 zoning ordinance “grandfathering” existing uses.   City insists that the court's conclusion is wholly at odds with sections 34.01 and 34.06 of the ordinance, which require a use permit for a non-conforming use.7

Though the argument advanced has facial appeal, City's failure to challenge the planning director's determination below effectively insulates that decision from attack on appeal.   Under the county ordinance, the planning director is authorized to determine the existence of a vested right subject to appeal to the Planning Commission.  “Such appeal shall be made in writing within fifteen days from the date of the Director's decision.   If no appeal is made within this time, the decision of the Director shall be final․”  (MCC, § 22.16.060.)

 Notwithstanding the somewhat bewildering administrative proceedings which took place, the planning department staff apparently accepted Ford's vested right claim without requiring a use permit for its continuing gravel extraction operations. Although that decision was initially questioned during the City's appeal of the planning commission's negative declaration, at its next meeting the board ultimately accepted the planning director's announced determination that Ford has a vested right.   Since the City did not challenge that determination at the administrative level, its failure to exhaust its administrative remedies precludes judicial review.  (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 200 Cal.Rptr. 855;  La Costa Beach Homeowners Assn. v. Wayne (1979) 89 Cal.App.3d 327, 152 Cal.Rptr. 355.)

In view of our decision, we find it unnecessary to reach the issue raised in the county's appeal concerning the effect of lack of notice of a required use permit for a non-conforming use.

IV.

The Reclamation Plan

Finally, City argues that Ford's reclamation plan is incomplete and inadequate and should have been rejected by the board.   The argument is unconvincing.

 The SMARA sets forth the required contents of a reclamation plan, including, “[a] description of the manner in which reclamation, adequate for the proposed use or potential uses will be accomplished, including:  ․ (2) a description of the manner in which rehabilitation of affected streambed channels and streambanks to a condition minimizing erosion and sedimentation will occur.”  (§ 2772, subd. (h).)  The county ordinance is framed in similar language.  (MCC, § 22.16.042(H).)

Ford's plan, as submitted, is sketchy at best.   Presumably, Ford's intention to continue indefinitely its gravel extraction activities motivated its brief reply to the form inquiry to “[d]escribe the methods, their sequence and timing, to be used in bringing the reclamation of land to its end state.”   Although the preprinted form specifically asked for a discussion of nine items, including “Treatment of streambeds and streambanks to control erosion and sedimentation,” Ford tersely responded:  “All of the above are carefully controlled to insure continued Long [sic ] term operation.  [¶] This operation will continue thru the foreseeable future as a major supplier of materials for construction in the Ukiah area.”

City argues that Ford's plan fails to provide any substantive description of the manner or method whereby the natural streambeds would be restored.   We disagree.

Ford's reclamation plan clearly relies upon the movement of gravel during the high water winter flows to replenish the riverbed.   The county planning staff recognized that Ford's reclamation activities were “limited to smoothing and sloping the bar as required by the Department of Fish and Game with the rest of the reclamation left to the natural stream processes of gravel movement during winter high flows.”   And it must also be recognized that in approving the plan, the board imposed 11 conditions requiring Ford to submit detailed data factually demonstrating that the gravel source is replenished each year.   When those conditions are read into the plan then, as so construed, Ford's plan seems adequate to ensure that the county will be able to effectively monitor and review any adverse effects brought about by Ford's operations.

The judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Public Resources Code.

2.   We reject Ford's argument that SMARA does not apply to its activities because gravel is perpetually replenished and thus there is no need for reclamation.   Although gravel extraction is a unique mining operation, we think Ford's argument should be addressed to the Legislature.   As presently drafted, SMARA does encompass gravel extraction as “mining by ․ dredging․” (§ 2735.)   And the Mendocino County ordinance expressly includes gravel extraction within its definition of surface mining operations.  (MCC, § 22.16.030(N).)

3.   We reject Ford's argument that CEQA is entirely inapplicable.   We agree with the City that a reclamation plan is an “entitlement for use” inasmuch as the SMARA prohibits surface mining operations unless a reclamation plan has been submitted and approved.  (§ 2770.)   Thus, a reclamation plan is a “project” under CEQA.   What the City plainly overlooks, however, is that the “project” was the reclamation plan, not the gravel extraction operations.

4.   A reclamation plan is, by definition, an informational document.  (§ 2772;  MCC, § 22.16.042.)   It is designed to give the local agencies information to enable them to review and monitor any adverse environmental effects.  (§ 2712;  MCC, § 22.16.010.)   The purpose of a reclamation plan, then, is quite similar to that of an EIR.   It would seem redundant to require an EIR upon the occasion of the approval of a reclamation plan.   We express no opinion, however, whether under different circumstances a reclamation plan might have a significant environmental impact.

5.   The record indicates that such a study was eventually undertaken and completed in February 1984.

6.   It is noteworthy that the City voluntarily dismissed two of its causes of action seeking to compel the county to undertake a broad assessment of the river and to monitor the effects of all the gravel extractions.

7.   Section 34.01 provides:  “The lawful use of land existing at the time of the passage of this Ordinance, although such use does not conform to the provisions hereof, may be continued, provided however that non-conforming business and industrial uses being operated on open land may be continued for a period not longer than five (5) years after this Ordinance becomes effective.”Section 34.06 provides:  “The owners or occupant of any land or building classified as a non-conforming use under the provisions of this Ordinance shall, upon notification by the Planning Commission, make application for a use and occupancy permit, and shall annually thereafter apply for renewal of said permit.”

RACANELLI, Presiding Judge.

ELKINGTON and HOLMDAHL, JJ., concur.

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