County Ordinance Creating Wildlife Migration Corridor Found in Compliance with CEQA and the Surface Mining and Reclamation Act | Downey Brand LLP

In California Construction and Industrial Materials Association v. County of Ventura (2023) 97 Cal.App.5th 1, the California Construction and Industrial Materials Association and the Ventura County Coalition of Labor, Agriculture and Business separately and unsuccessfully petitioned for writs of mandate to require the County of Ventura to vacate an ordinance creating a wildlife migration corridor. The Court of Appeal consolidated the appeals and found the ordinance was in compliance with the Surface Mining and Reclamation Act (SMARA) and CEQA, determining the Project was exempt under CEQA. 

Project Overview and Procedural History

Prior to the Project, the County had no standards or regulations governing wildlife movement corridors.  Wildlife movement issues were decided through a discretionary permitting process and environmental review. The Project involved a County ordinance creating two overlay zones covering approximately 163,000 acres of less developed areas to preserve corridors that allow wild animals to move freely throughout the zones. The ordinance also amended the County’s general plan and other ordinances to carry out its purpose. 

Petitioners brought separate petitions for writs of mandate ordering the County to set aside its approval of the Project and comply with SMARA and CEQA in approving the Project. The County opposed the petitions on three grounds: (1) SMARA did not apply; (2) if SMARA did apply, Petitioners failed to show prejudice from the failure to comply; and (3) the Project was exempt from CEQA.

SMARA

Ten sectors within the County are designated as areas of regionally significant mineral resources.  SMARA section 2762(b)(2) requires a statement specifying the reasons for permitting a proposed use that would threaten the potential to extract minerals in a designated area. The County claimed it was not required to submit such a statement because it was not permitting a use and the Project would not threaten the potential to extract minerals. 

The Court reviewed de novo the statutory interpretation of “permitting a use.” It presumed that had the Legislature intended to include changes in permitting requirements, it would have said so. The Court also presumed that the Legislature meant what it said and did not mean simply changing permitting requirements that may have the potential to alter what uses are permitted. The Court held that the Project, which set standards for future developments that might interfere with wildlife movements, was not permitting a use. 

The Court then discussed the mandates that Petitioners brought. Traditional mandates require the petitioner show prejudice resulting from the public agency’s action, including a reasonable probability that they would have obtained a more favorable result in the absence of the alleged error. Despite letters from the State Geologist opining that a County must issue a statement of reasons, the Court held that nothing in the record showed it was reasonably probable that Petitioners would have obtained a more favorable result if the County had issued SMARA’s required statement specifying the reasons for the action that would threaten the potential to extract minerals. The Court reasoned that the public had ample opportunity to comment on the Project and the reason for the Project was included in the ordinance itself, “to preserve functional connectivity for wildlife and vegetation through the overlay zone.”

CEQA Exemptions

If an activity qualifies as a “project,” the next step is to determine whether the project is exempt under CEQA. If a project is exempt, no further environmental review is required. Here, the County relied on the “common sense” exemption and Classes 7 and 8 categorical exemptions. The “common sense” exemption applies where there is no possibility that the activity may have a significant effect on the environment. The Class 7 exemption pertains to actions by regulatory agencies for the protection of natural resources, and the Class 8 exemption covers actions by regulatory agencies for the protection of the environment. The Court held the Project fell squarely within the plain language of the Classes 7 and 8 exemptions. Ample evidence supported this finding, including studies and documentation citing the need to preserve wildlife corridors and the establishment of development standards compatible with wildlife movement. 

Petitioners argued these exceptions did not apply because if local mining was prohibited, necessary building materials may need to be transported from a more distant location, increasing pollution from transportation. However, per the Court, nothing in the ordinance prohibited the extraction of minerals and such speculation was not evidence. Additionally, the Court noted that the language in the exemptions does not require a showing that a project will assure the protection of the whole environment. 

Exceptions to CEQA Exemptions

To defeat a categorical exemption, a project opponent must show an exception to an exemption applies. Here, Petitioners argued the unusual circumstances exception applied, in which a project opponent must show (1) there is a reasonable possibility that the activity will have a significant effect on the environment and (2) the effect is due to unusual circumstances. A party may establish unusual circumstances by showing the project has features, like its size or location, that distinguish it from others in the exempt class. 

The Court held Petitioners failed to make such showings as Petitioners argued the Project was significantly larger than other projects in its class, but cited no supporting evidence. Petitioners also noted that the Project overlays 10,000 acres of classified mineral resources, but failed to cite to evidence that other projects in Classes 7 and 8 do not overlay similar resources; further, neither mining nor ordinances that work to preserve wildlife are unique to the County. 

Fair Argument

Petitioners claimed the Project will have a significant adverse impact because it (1) is on land zoned as mineral resource protection and is adjacent to a principal access road to an existing aggregate Conditional Use Permit site; and (2) has the potential to impede or preclude extraction of or access to aggregate resources. However, the Court found these statements were speculative and that the Project does not prohibit mining or access to a permitted mine.  It also held the Project made explicit what was already implicit under prior law. The County’s general plan required that applications for resource development be reviewed to assure minimal disturbance to the environment and included a specific policy for the preservation of wildlife migration corridors. The County was already required to preserve wildlife migration corridors when determining whether to grant a Conditional Use permit, and if so, on what grounds. Thus, the Court held there was not a fair argument that there is a reasonable possibility the Project would have an adverse effect on the environment. 

Conclusion

The Court’s analysis was relatively straightforward. It interpreted SMARA based on the plain language. The Court also seemed to rely heavily on the fact that the ordinance only made explicit what the County was already able to do in applying its general plan policy. While it did not rule on the “common sense” exemption, the Court broke down the applicability of the Classes 7 and 8 exemptions and the exceptions tests.  While the analysis was not groundbreaking (pun intended), the obstacles to critical resource extraction in California are well-established, so one hopes the Court was correct in rejecting Petitioners’ arguments—that the Project would preclude mining—as speculative, so as to ensure a proper balance between wildlife migration corridors and productive mining activities work.

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