Tag: Chris Butcher

Court of Appeal Views Appellants’ Failure to Present and Discredit Evidence favorable to the Agency as a Concession that Substantial Evidence Does In Fact Support Agency

In an unpublished decision, El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984, Greenaction for Health and Environmental Justice and El Pueblo Para El Aire y Agua Limpio (collectively appellants) sued the Kings County Board of Supervisors (County) alleging that the County’s approval of … Continue Reading

Newly Published Appellate Decision Holds Analysis of Parkland Impacts for Campus Master Plan Fails to Comply with CEQA

The City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. LEXIS 761, publication status was recently changed from unpublished to published on June 28, 2012. The Board of Trustees of the California State University (Trustees) approved a master plan to guide the expansion of the Hayward campus. The City … Continue Reading

Federal Court Upholds Application of Nationwide Permits for Hydropower Dam in Washington

In Snoqualmie Valley Preservation Alliance v. U.S. Army Corps of Engineers, (2012) ___ F.3d ___, the Ninth Circuit affirmed the Army Corps of Engineers’ (Corps) verification that certain nationwide permits (NWPs), which authorize activities predetermined to have minimal adverse environmental impacts, applied to the reconstruction of a dam used to generate hydroelectric power in Washington. … Continue Reading

Ninth Circuit Requires 2004 EIS to Include Higher Level of Analysis of Environmental Impacts on Fish, While Finding the Analysis of Environmental Impacts on Amphibians Sufficient

In January 2001, the United States Forest Service (Forest Service) issued an environmental impact statement (EIS) recommending amendments to the Forest Plans in the Sierras Madre Mountains (2001 EIS) to conserve and repair the riparian and amphibian habitat. By November 2001, the Forest Service reviewed the 2001 EIS and its proposed alternatives, and made several … Continue Reading

Court Holds CARB’s Scoping Plan Complies with AB 32

In Associated of Irritated Residents v. California Air Resources Board, (2012) ___ Cal.App.4th ___, the California Court of Appeal, First District, held that the California Air Resources Board (CARB) complied with the requirements of AB 32, the Global Warming Solutions Act, when it adopted its Climate Change Scoping Plan (Plan). AB 32 requires, among other … Continue Reading

Ninth Circuit Ruled in Favor of Tribe, Finding that the US Forest Service Violated the ESA by Giving Permission to Mine in a National Forest

In Karuk Tribe of California v. United States Forest Service, 2012 U.S. App. LEXIS 11145, the Ninth Circuit Court of Appeals held that the Forest Service (Service) violated the Endangered Species Act (ESA) by failing to consult with the appropriate wildlife agencies before approving four notices of intent (NOI). The NOIs gave miners permission to … Continue Reading

Attorney General Releases Report Interpreting CEQA to Require Consideration of Environmental Justice Issues at the Local and Regional Levels

On May 8, 2012, the California Attorney General’s office released a report entitled  “Environmental Justice at the Local and Regional Level – Legal Background” (Report) which interprets existing law to impose environmental justice obligations that local governments must consider when approving specific projects and planning for future development. “Environmental justice” is defined in the Government … Continue Reading

Governor Brown Seeks to Insulate California High Speed Rail From CEQA Challenges

Governor Brown’s office has proposed new legislation that would modify the California Environmental Quality Act (CEQA) to limit the circumstances under which a court could issue an injunction or other stop work order on the California High Speed Rail (HSR) project pending the outcome of CEQA litigation.  The proposed legislation aims to protect the HSR … Continue Reading

Court Denies Attorney’s Fees Where Successful Petitioner Does Not Confer a Significant Benefit to Public and Discharges Writ of Mandate After Compliance

In an unpublished opinion, California Oak Foundation v. County of Tehama (2012) 2012 Cal. App. Unpub. Lexis 3970, the California Third District Court of Appeal affirmed a decision denying petitioner’s request for attorney’s fees on the basis that their successful challenge to a golf course community project, which Tehama County approved in 2006, did not … Continue Reading

California’s Highest Court Grants Review of Berkeley Hillside Preservation Decision

On May 23, 2012, the California Supreme Court unanimously agreed to grant review of Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The issue before the court will be whether the City of Berkeley must prepare an environmental impact report (EIR) before approving the construction of a 10,000-square-foot single-family home. The trial … Continue Reading

Federal District Court Stays Litigation over Endangered Frog and Snake to Permit U.S. Fish and Wildlife Service Consultation to Conclude

In Wild Equity Institute v. City and County of San Francisco, 2012 U.S. Dist. LEXIS 58620, Plaintiffs, a collection of non-profit conservation groups, sued the City of San Francisco (City) for violation of the Endangered Species Act (ESA), claiming City’s actions as the owner and operator of the Sharp Park Golf Course (SPGC) have caused … Continue Reading

Contents of an Administrative Record: Who is in “Control”?

Preparation of the administrative record for CEQA litigation is governed by Public Resources Code section 21167.6, subdivision (e).  In Consolidated Irrigation District v. The Superior Court of Fresno County, (2012) ___ Cal.App.4th_____, the court provided important guidance regarding the proper contents of the record and sets some limitations on an agency’s responsibility to respond to … Continue Reading

Substantial Evidence Test Applies to Subsequent Environmental Review After a Negative Declaration Has Been Adopted for a Project

In Abatti v. Imperial Irrigation District (2012) 2012 Cal.App. LEXIS 496, the court considered whether the substantial evidence, rather than the “fair argument,” test applies to determine whether further environmental review is warranted for a subsequent approval where the agency has initially adopted a negative declaration for the project. In 2006, the irrigation district adopted … Continue Reading

Court Defers to Local Agency Characterization of Lot Line Adjustments as Ministerial Actions Not Subject to CEQA

In Sierra Club v. Napa County Board of Supervisors (2012) 2012 Cal.App. LEXIS 454, the Sierra Club challenged a lot line adjustment ordinance adopted by Napa County, which allowed lot line adjustments under the Subdivision Map Act on parcels that had previously been adjusted, as long as the prior lot line adjustment has been completed … Continue Reading

Where a Local Government Does Not Endorse Amendments to its Certified Local Coastal Program, the Coastal Commission’s Authority to Adopt such Amendments is Very Narrow

In City of Malibu v. California Coastal Commission (2012) ___ Cal.App.4th ___, the California Court of Appeal, Second District, considered whether California Public Resources Code section 30515, known as the override provision of the Coastal Act, allows a public works agency to apply to the Coastal Commission to override policies and standards in a locality’s … Continue Reading

Tolling Agreements to Extend CEQA’s Statute of Limitations during Settlement Discussions are Valid

In Salmon Protection and Watershed Network v. County of Marin (2102) 2012 Cal.App. LEXIS 458, the court considered whether a public agency and a party disputing the adequacy of an EIR could enter into an agreement to toll the statute of limitations setting the time period for filing a CEQA lawsuit to challenge the EIR. … Continue Reading

Court Rejects Use of a Demurrer to Dispose of a Save Tara-Style CEQA Lawsuit

In Jamulians Against the Casino v. Iwasaki (2012) ___ Cal.App.4th ___, petitioner alleged that a settlement agreement entered between Jamul Indian Village and Caltrans constituted a discretionary approval of a CEQA project by Caltrans.  The settlement agreement at issue disposed of a federal lawsuit between those parties relating to the application of CEQA to the … Continue Reading

Constitutionality of AB 900 CEQA Streamlining Challenged in Court

On April 23, 2012, the Planning and Conservation League (PCL) filed a lawsuit challenging the constitutionality of Assembly Bill No. 900 (2011-2012 Reg. Sess.) (see Conservation League v. State of California, RG12626904 (Alameda Sup. Ct.) available at http://www.cnsenvironmentallaw.com/2012/04/26/Conservation.pdf.) AB 900 requires CEQA litigation challenging eligible projects to skip over the superior court and be heard … Continue Reading

Court holds the Integrated Waste Management Act Does Not Vest a County with Any Authority Over Issuance of a Solid Waste Facilities Permit and, Therefore, the County is Not the Decisionmaking Body for the Purposes of CEQA

In No Wetlands Landfill Expansion v. County of Marin (2012) 2012 Cal.App.LEXIS 330, the First Appellate District reversed the trial court’s determination that CEQA required the Marin County Board of Supervisors to hear an administrative appeal from the Marin County Environmental Health Services’s (Marin EHS) approval of a solid waste facilities permit for the expansion … Continue Reading

Court Rules in Favor of Forest Service’s Approval of Post-Fire Logging and Restoration Project

In Earth Island Institute v. Carlton, (2012) 2012 U.S. Dist. LEXIS 44177, petitioner challenged a logging and restoration project under the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”). The district court granted defendants’ motion for summary judgment. Plaintiff makes four central arguments for why Defendants violated NEPA in the preparation … Continue Reading

Court Rules Forest Service’s Categorical Exclusion Memos are Arbitrary and Capricious Regarding Livestock Grazing

In Western Watersheds v. United States Forest Service, (2012) 2012 U.S. Dist. LEXIS 45573, petitioners challenged the Forest Service’s alleged practice of reauthorizing livestock grazing on federal land without conducting the proper environmental review under the National Environmental Policy Act (“NEPA”). The court concluded that the actions by the Forest Service in connection with the … Continue Reading

Unpublished Decision Holds that a Comparative Analysis is Required to Support the Conclusion that an Alternative is Economically Infeasible

In an unpublished decision, Quartz Hill Cares v. City of Lancaster (2012) 2012 Cal.App.Unpub. LEXIS 2026, petitioner sought a writ of administrative mandate to overturn the City of Lancaster’s (City) approval of a 395,000-square-foot commercial project on land previously zoned for residential use under the Planning and Zoning Law and the California Environmental Quality Act … Continue Reading

Third Appellate District Grants Partial Publication of CEQA Decision Relating to Agricultural Mitigation, Urban Decay, Res Judicata, and the Deliberative Process Privilege

In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit for a proposed shopping center to be anchored by a Wal-Mart Supercenter (Project) after the … Continue Reading
LexBlog