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In San Francisco Baykeeper Inc. v. California State Lands Commission, 2015 Cal. App. LEXIS 1024, the First Appellate District rejected several CEQA challenges to the California State Lands Commission (SLC)’s approval of 10-year sand mining leases, but reversed the trial court on this issue of whether SLC failed to properly consider the public trust doctrine in approving the leases.

In October 2014, the SLC certified the Final EIR and approved the San Francisco Bay and Delta Sand Mining Project, which authorized mining from submerged lands under the San Francisco Bay. San Francisco Baykeeper, Inc. (Baykeeper) challenged the EIR, alleging (1) the baseline was not supported by the record; (2) the SLC failed to analyze properly project impacts on soil erosion and to recirculate; (3) the SLC selected an improper threshold for determining the impact on mineral resources; and (4) that the SLC failed to notify and consult with other responsible agencies.

First, the court held that the SLC’s use of a five-year average of annual mining volumes to establish the baseline condition was proper because it more accurately reflected true baseline conditions and was supported by substantial evidence. Baykeeper argued that this baseline was artificially inflated and did not reflect the conditions as they existed when the agency began its environmental analysis in 2007. The SLC countered that the five-year average was a better indicator of existing mining conditions than the 2007 rate in light of the financial crisis and an unusual drop in mining volume that year. The court agreed, noting that neither CEQA nor the CEQA Guidelines mandate a uniform, inflexible rule for determining the existing conditions baseline.

Second, the court rejected Baykeeper’s assertion that the Final EIR did not adequately analyze the cumulative environmental impacts of commercial sand mining on coastal beach erosion and sedimentation. The court held that the Final EIR’s determination that the mining activity in question would not have a significant impact on coastal erosion was based on substantial evidence. Specifically, the court pointed to additional studies conducted in response to comments on the Draft EIR. Baykeeper argued that these additional studies constituted significant new information, and therefore the SLC was required to recirculate the Final EIR. The court again disagreed, finding that the SLC’s decision not to recirculate was supported by substantial evidence because the new information did not alter any of the substantive conclusions from the Draft EIR. While the parties disagreed about how the studies should be interpreted, the court discounted this as a “battle of the experts.”

Third, the court upheld the Final EIR’s “mineral resources” impact analysis. Baykeeper contended that the SLC improperly deviated from the CEQA Guidelines Appendix G thresholds for measuring impacts on mineral resources, reasoning that Appendix G mandated that the Final EIR evaluate the impact resulting from the allegedly permanent depletion of sand minerals. The court disagreed, stating that the thresholds of significance in Appendix G are only a “suggestion,” and agencies have discretion to develop project-specific thresholds. The court found that SLC’s threshold, which required analysis of impacts on access to mineral resources but not the depletion of those resources, was consistent with existing state policy regarding mineral extraction.

Fourth, the court held that SLC violated CEQA by failing to consult with other trustee agencies, such as the Coastal Commission and the City of San Francisco. However, the court held this violation was not prejudicial because it did not result in the omission of pertinent information from the environmental review process.

In addition to the CEQA challenges, Baykeeper alleged that SLC failed to fulfill its public trust duty because it did not make any findings that approval of the leases was consistent with existing public trust uses. Here, the court agreed, rejecting SLC’s arguments that private sand mining is a categorical per se public trust use, that mining leases do not deplete a trust resource, or that CEQA compliance displaced any independent duty to perform a public trust analysis. Because the SLC failed to fulfill its affirmative duty to “take the public trust into account . . . and to protect public trust uses whenever feasible,” the court reversed and directed the trial court to grant the writ of mandate on this issue.

Key Point:

Agencies have discretion when establishing a baseline, especially in situations where environmental conditions vary from year to year. When developing thresholds of significance, CEQA does not require agencies to use the suggested thresholds in Appendix G. For projects that might adversely affect traditional public trust uses, the agencies administering the land have an affirmative duty to consider the public trust as part of the CEQA review process

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