In a partially published opinion in Friends of the Kings River v. County of Fresno (2014) 232 Cal.App.4th 105, the California Court of Appeal for the Fifth District affirmed the denial of a writ of mandate challenging Fresno County’s (the County) environmental review of a 1,500-acre aggregate mine project.
The County initially approved the environmental impact report (EIR) for the mine in the Sierra Nevada foothills near the towns of Sanger and Reedley in October 2012. Petitioner subsequently appealed the County’s decision to the State Mining and Geology Board (SMGB) alleging violations of the Surface Mining and Reclamation Act (SMARA). The SMGB granted the petition and remanded the reclamation plan for the site back to the County. In August 2013, the County adopted a revised reclamation plan and approved an addendum to the EIR in compliance with SMARA. Petitioner appealed to the SMGB a second time, but the SMGB upheld the County’s approval of the project.
While the first SMGB appeal was pending, petitioner also filed a petition for writ of mandate in Fresno County Superior Court. The trial court rejected petitioner’s challenges under the California Environmental Quality Act (CEQA) and SMARA.
On appeal, Petitioner argued there was no project for the County to approve because the SMGB’s remand invalidated the reclamation plan. In rejecting petitioner’s argument, the court explained an administrative agency’s authority is limited to powers provided by statute. Under SMARA, the SMGB does not have authority to nullify a lead agency’s decision—the SMGB only has authority to remand for reconsideration or in limited circumstances take over as lead agency. Accordingly, the SMGB actions had no effect on the County’s certification of the EIR or its approval of the project. For this reason, all evidence related to the County’s reconsideration of the reclamation plan post-dated certification of the EIR and was not admissible for purposes of evaluating petitioner’s CEQA claims.
The court also rejected petitioner’s argument that the County violated CEQA by failing to adequately mitigate for the loss of 600 acres of farmland. The three mitigation measures recommended by the County included 1) continuing agricultural use of the land up until mining begins; 2) requiring 602 acres be maintained as an agriculture buffer zone for the life of the project; and 3) requiring used mining areas be reclaimed to farmland throughout the project. Still, petitioner contended the County was required to establish permanent agriculture conservation easements (ACEs). The court held that while ACEs may mitigate direct loss of farmland, ACEs are not required by CEQA in all cases where they are economically feasible. Rather, here the County considered the use of ACEs along with other mitigation measures and selected the three measures listed above. The court declined to require the County to mandate ACEs instead of the measures it chose.
In the unpublished portions of the opinion, the court held the trial court did not err by ruling on the writ petition, and petitioner could not raise a new SMARA claim for the first time on appeal. The court also rejected other various challenges to the EIR under CEQA.
KEY POINT
When a project presents a loss of farmland, CEQA does not require permanent agriculture conservation easements (ACEs) in every situation where ACEs are feasible. Rather, ACEs are just one mitigation measure that lead agencies should consider to mitigate a project’s impact.