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On March 9, 2012, the Fifth Appellate District ordered a portion of its decision in Consol. Irrigation Dist. v. City of Selma (2012) __ Cal.App.4th __ (2012 Cal. App. LEXIS 277) published. Specifically, the Court ordered all but Sections I.A., III., IV.C., IV.D., V., and VI. of DISCUSSION published. The portions of the opinion ordered published relate to augmenting the administrative record, the irrigation district’s standing to file the CEQA action, and the credibility of evidence used to establish a fair argument under CEQA. The sections of the decision discussing the substantive application of the fair argument test where not ordered published.

With respect to the trial court’s decision to augment the record, the Court applied the substantial evidence standard of review. The trial court determined that the petitioner’s declaration stating that certain documents not included in the record were submitted to the City was the most credible of the declarations submitted at trial concerning augmentation of the record. The Court held that this determination by the trial court constituted substantial evidence demonstrating that the administrative record was properly augmented. The Court explained that to reject the trial court’s credibility determination its conclusion must be “physically impossible or obviously false without resorting to inference or deduction.”

In addressing the irrigation district’s standing to sue, the Court concluded Water Code section 22650 establishes that the irrigation district has standing to seek a writ of mandate. The Court concluded further that a public agency is not required to have jurisdiction over a natural resource affected by a proposed CEQA project to have a beneficial interest for the purposes of standing. Because the court found Water Code section 22650 to give the irrigation district standing, the Court declined to consider whether the irrigation district, as a governmental agency and not a citizen, can have public interest standing.

Lastly, the Court rejected the City’s argument that evidence submitted by the irrigation district was incredible and, thus, incapable of establishing a fair argument of potentially significant environmental impacts. The Court stated that to reject evidence as incredible, an agency must identify the evidence that was challenged with sufficient particularity to allow the reviewing court to determine whether there were legitimate, disputed issues of credibility. Here, the City cited no evidence that any particular statements in the record were disputed by the city council, planning commission, or staff during the administrative process. Therefore, the Court held the City’s credibility argument lacked merit.

Key Points:

Courts will not entertain an agency’s argument that evidence submitted during the administrative process lacks credibility unless the agency confronts this question during the administrative process and based on substantial evidence concludes the evidence is incredible.

Written By: Tina Thomas and Chris Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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