California Court of Appeals, Third District, Sacramento
CITIZENS FOR ENVIRONMENTAL RESPONSIBILITY et al., Plaintiffs and Appellants,
STATE OF CALIFORNIA ex rel. 14TH DISTRICT AGRICULTURAL ASSOCIATION et al., Defendants and Respondents STARS OF JUSTICE, INC., Real Party in Interest and Respondent.
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from a judgment of the Superior Court of Sacramento County No. 34201180000902CUWMGDS, Lloyd G. Connelly, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Lozeau|Drury, Michael R. Lozeau, Richard T. Drury, Christina Caro and Douglas J. Chermak, for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Randy L. Barrow and Matthew J. Goldman, Deputy Attorneys General, for Defendants and Respondents.
No appearance for Real Party in Interest and Respondent.
The trial court denied a petition for writ of mandate and complaint for declaratory and injunctive relief filed by appellants Citizens for Environmental Responsibility, Stop The Rodeo, and Eric Zamost, under the California Environmental Quality Act or CEQA. (Pub. Resources Code, § 21000 et seq.) Appellants claim the 14th District Agricultural Association and its Board of Directors (collectively District) violated CEQA by approving a notice of exemption (NOE) from environmental review for a rodeo held by real party in interest Stars of Justice, Inc. at the Santa Cruz County Fairground (Fairground) in Watsonville in October 2011. The exemption was pursuant to CEQA’s regulatory guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.; hereafter Guidelines) for a Class 23 categorical exemption for “normal operations of existing facilities for public gatherings.” (Guidelines, § 15323). Appellants contend the exemption is inapplicable because (1) the
rodeo project expressly included mitigation measures in the form of a Manure Management Plan, in effect acknowledging potential environmental effects, and (2) the unusual circumstances exception to categorical exemptions applies because stormwater runoff flows over the fairground where cattle and horses defecate and into an already polluted creek. (Guidelines, § 15300.2, subd. (c).)
FACTUAL AND PROCEDURAL BACKGROUND
The Fairground and Salsipuedes Creek
The District administers the Fairground which, since 1941, has been the venue for various events, including equestrian and livestock events and the annual county fair. The Fairground is zoned as a public and community facility. It is bordered on three sides by land zoned for agricultural use. On the eastern side it is bordered by land zoned for residential use. The Fairground has three livestock barns and a livestock arena in the southeastern area. In the north/northeastern area, it has a horse barn, cattle and horse stalls, and three horse arenas. The Fairground is located in the Corralitos/Salsipuedes watershed. Corralitos Creek is a tributary to Salsipuedes Creek. Salsipuedes Creek flows adjacent to and through a portion of the north/northeast area of the Fairground where the horse and cattle stalls, horse barn and horse arenas are located.
The First Rodeo Proposal
In the fall of 2009, the Santa Cruz County Deputy Sheriff’s Association, acting through its nonprofit corporation Stars of Justice, proposed a three-day “ProRodeo” for October 2010 to raise funds to support programs for children. The application proposed improvements to the Fairground facilities and contemplated future rodeos. Some citizens opposed the ProRodeo on various grounds, including CEQA and cruelty to animals. The District initially approved the ProRodeo in June 2010, concluding the project was exempt from CEQA review under Class 23, normal operations of facilities for public gatherings, but the contract was later revoked in July 2010 due to disagreements between the Fair manager and the Stars of Justice.
Creek Contamination and Fairground Monitoring
In 2009, unrelated to the first proposed rodeo, the California Regional Water Quality Control Board for the Central Coast Region (Regional Water Board) determined the water quality of both Corralitos and Salsipuedes Creeks was impaired by human and animal fecal coliform discharged into the creeks from storm drains, homeless persons’ encampments, pet waste, sanitary sewer systems (septic tanks), and farm animals and livestock operationsincluding Fairground activities. When visiting the Fairground, Regional Water Board “staff did not see management practices in place that would keep runoff from the manure area from entering surface waters.” However, no event was happening at the time, and staff saw only one horse at the Fairground.
To restore the water quality, the Regional Water Board established and allocated responsibilities for achieving a total maximum daily load for fecal coliform in the creeks and imposed prohibitions on the discharge of animal and human fecal material, approved by the State Water Resources Control Board (the State Board) and the United States Environmental Protection Agency (EPA). The Regional Water Board required owners and/or operators to use specific management practices to control discharges containing fecal matter and to monitor and report their progress. The resolution adopted by the Regional Water Board did not specify the Fairground but instead allocated responsibility to “Owners of Land Used for/Containing Farm Animals/Livestock.”
In December 2010, the Fairground began a voluntary stream water monitoring program to identify contaminants in Salsipuedes Creek flowing from upstream, through the Fairground property, and leaving the property flowing downstream. “Grab samples” showed that the amount of E. coli in the water leaving the Fairground and flowing downstream was substantially less than the amount of E. coli entering the Fairground from upstream. Routine testing of drinking water from a Fairground well in the equestrian area showed no contamination by coliform or E. coli.
Ongoing Manure Management Practices at the Fairground
The Fairground had taken steps to manage manure produced during its equestrian and livestock events. Beginning in the 1960’s, the Fairground removed manure and livestock bedding immediately after each event and
collected it in a wooden bunker on a cement aggregate slab partially covered by a barn roof and, during the dry season, on a flat section of equestrian area. A contracted company hauled it to a composting facility. Since the early 1990’s, the manure has been hauled away on a daily basis during equestrian and livestock events. These practices were not formalized in a written document until July 19, 2010, after appellants objected to the earlier, grander-scale rodeo proposed by Stars of Justice that ultimately did not take place. The written formalization of these past practicesthe Manure Management Plan or MMPcalls for bunkers to be cleaned at the end of the event or when close to capacity. The MMP also indicates, in addition to the storage and hauling provisions, that earth berms separate the drainage way in the equestrian area from the surroundings to prevent contamination from washing into the drainage way. Contamination is further minimized by harrowing or tilling the soil to promote filtration of rain water and by planting vegetation on areas with a slope of 15 percent or more, to prevent erosion and promote filtration of surface contaminants. The formal MMP was written approximately six months before Stars of Justice proposed the rodeo project that is the subject of this appeal.
The Rodeo Project and the Notice of Exemption
In January 2011, Stars of Justice proposed a scaled-down version of the rodeo for two days, October 3 and 2, 2011. Appellants opposed the project on environmental and other grounds, and the District scheduled a public hearing for April 2011. At that hearing, the board, out of an “abundance of precaution” and fear of lawsuits, considered whether to have an environmental review for the rodeo project conducted by environmental consultant Strelow Consulting, which was working on an unrelated project for the District. The board ultimately voted to have the consultant consider applicability of the Class 23 categorical exemption to the rodeo. The consultant’s analysis supported the exemption.
In May 2011, the board adopted the Class 23 NOE and approved the rental agreement for the rodeo. As described in the NOE, the event was to take place over the course of two days and was expected to attract about 1, 500 spectators, involve a maximum of 500 horses but only 100 on the grounds at any given time, and involve a maximum of 250 cattle/stock with only 50 on the grounds at any given time.
The NOE said the project was categorically exempt under Guidelines section 15323the Class 23 exemption for “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose, ” meaning similar activity has been occurring for at least three years and there is a reasonable expectation that the project would not represent a change in operation of the facility. The NOE said the Fairground is an existing facility designed for public gatherings, primarily the annual county fair, but other public events are held throughout the year, including equestrian and livestock events. The county fair was established in 1885, and the District bought the current 105-acre fairground property with state funds in 1941. The first annual fair opened the same year and included a horse show. The Fairground includes three equestrian/livestock arenas and barns, most of which were constructed in 1941 with subsequent improvements. In 1971, a five-year plan for improvements of the horse show area was instituted, with construction of more stalls and cattle holding pens. The existing equestrian facilities have been in existence for at least 50 years, and equestrian and livestock events have always been accommodated at the Fairground. On average, the facility has sponsored two to four equestrian or livestock shows per month for the past 25 to 30 years. In the 1970’s, the Fairground hosted at least eight annual rodeos. More recently, in each of the last three years, about two dozen equestrian and/or livestock events have been held annually at the Fairground, in addition to the annual county fair. These events include horse shows and performances and livestock events, with attendance of 100 to 500 spectators for smaller events, 1, 000 to 1, 200 spectators for larger events, and 1, 500 to 3, 500 spectators for equestrian and livestock events held during the annual county fair. The smaller equestrian events have 50 to 400 horses. The annual cutting horse show at the Fairground has about 500 horses, 800 cattle, and 1, 000 peoplesimilar to the proposed rodeo project.
The NOE noted the inapplicability of any of the regulatory exceptions to a categorical exemption. “The event will utilize existing arenas, horse barns and other facilities; no construction or physical alterations of the grounds are proposed. The proposed event would not result in impacts on a resource of critical concern (section 15300.2(a)). A narrow segment of Salsipuedes Creek flows through the Fairground and the arena area and is mostly an earthen-channel devoid of vegetation within the arena location; a short segment flows through an underground pipeline culvert. Horse and livestock manure is strictly managed in accordance with the District’s ‘Manure Management Plan.’ Manure is collected, contained in enclosed bunkers and hauled offsite, and animal washdown areas flow to the existing sanitary sewer. These required operations and management of the animals will prevent non-point
source pollution into the creek and indirect impacts to the aquatic species that may be present. There are no known significant cumulative impacts to which the project would contribute, i.e. successive projects of the same type in the vicinity (section 15300.2(b)). As there is no planned construction or alteration of the Fairgrounds facilities or grounds, and with implementation of animal and manure management, no significant impacts are anticipated (section 15300[.2](c)). Similarly, the project site is not adjacent to a designated scenic highway, and the project would not damage scenic resources (section 15300.2(d)). The site is not a hazardous waste site (section 15300.2(e)). No historical resources would be affected by the project (section 15300.2(f)).”
The Petition for Writ of Mandate and the Trial Court’s Rulings
On June 29, 2011, appellants filed in the trial court their petition for writ of mandate and complaint for injunctive and declaratory relief. On September 27, 2011, the trial court heard argument, took the matter under submission, and subsequently ...