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Friends of Kings River v. County of Fresno

California Court of Appeals, Fifth District

December 8, 2014

FRIENDS OF THE KINGS RIVER, Plaintiff and Appellant,
v.
COUNTY OF FRESNO et al., Defendants and Respondents COLONY LAND COMPANY, L.P. et al. Real Parties in Interest and Respondents.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from a judgment of the Superior Court of Fresno County. No. 12CECG03730 Jeffrey Y. Hamilton, Jr., Judge.

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COUNSEL

Law Offices of Donald B. Mooney, Donald B. Mooney and Marsha A. Burch for Plaintiff and Appellant.

Daniel C. Cederborg, County Counsel, and Bruce B. Johnson, Deputy County Counsel for Defendants and Respondents.

Mitchell Chadwick, Patrick G. Mitchell and Andrew M. Skanchy for Real Parties in Interest and Respondents.

OPINION

KANE, J.

INTRODUCTION

This case involves the Carmelita Mine and Reclamation Project (the Project), a proposed aggregate mine and related processing plants to be operated on a 1, 500-acre site at the base of the Sierra Nevada foothills near the towns of Sanger and Reedley. The Project includes, as required for every new surface mining operation, a reclamation plan that specifies how the land will be treated to provide a usable postmining site. Fresno County (County) prepared an environmental impact report (EIR) for the Project, and County’s board of supervisors (the Board) certified the EIR.

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An organization called Friends of the Kings River (petitioner or Friends) pursued an appeal of County’s approval of the Project with the State Mining and Geology Board (the SMGB). The SMGB granted Friends's appeal and remanded the reclamation plan to County for reconsideration. County approved a revised reclamation plan, and Friends appealed to the SMGB again. In Friends's second appeal, the SMGB upheld County’s decision to approve the Project.

While its first SMGB appeal was pending, Friends initiated the case before us by petitioning the trial court for writ of mandate. In its petition, Friends asserted a single cause of action alleging abuse of discretion under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA).[1] The trial court denied the petition.

In this appeal, petitioner contends the trial court erred by ruling on the petition at a time when “[j]udicial review of the Project approval was not ripe” because the SMGB had granted its first appeal. Alternatively, petitioner contends County failed to proceed in a manner required by law by approving the EIR at a time when the reclamation plan was invalid.

Petitioner also raises numerous challenges to the adequacy of the EIR under CEQA. It argues the project description is inadequate, certain conclusions regarding water issues lack substantial evidence, County should have required the acquisition of agricultural conservation easements as a mitigation measure for the loss of farmland resulting from the Project, the EIR’s discussion of potential impacts to air quality, hydrology and noise are inadequate, and the final EIR contains significant new information and erroneous conclusions. Finally, petitioner contends no substantial evidence supports the required findings for a conditional use permit.

We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The Project

In June 2010, Colony Land Company, L.P. (the applicant), applied to the Fresno County Department of Public Works and Planning (the public works department) for a conditional use permit (CUP), site plan review/occupancy permit, and reclamation plan for an aggregate mine and related processing, asphalt, ready mix concrete, and recycling plants to be operated by Carmelita

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Resources, LLC.[2] The applicant proposed an aggregate production rate of 1.25 million tons per year and an operating life of up to 100 years.

The proposed location for the Project is a 1, 500-acre site south of State Route 180, east of the Kings River, west of Reed Avenue, and approximately 15 miles east of the city of Fresno. The Project site is on a flat terrace of former river deposits and is currently used for growing row crops and stone fruit trees. Large and small farms with grape, tree fruit, and walnut production, open pasture, and rural homesites surround the Project site. Area-wide development includes rural farming, limited commercial and municipal facilities, and residential subdivisions associated with the towns of Sanger and Reedley. In the vicinity, there are aggregate production operations to the northwest and southwest. Another mining and reclamation project has been proposed to the northeast. Reedley Airport is southeast of the Project site.

In 1986, California classified the area as a Mineral Resource Zone 2, which means adequate information indicates that significant mineral deposits are present or there is a high likelihood for their presence. In 1988, California designated the Project site as having construction-grade aggregate deposits of regional significance.

The proposed aggregate production operation would eventually occupy 898 acres of the site. The remaining 602 acres would continue to support tree fruit production; 850 acres would be divided into 22 individual mining cells of approximately 40 acres. Each cell would be mined to a depth of 50 feet below ground surface with slopes of 2:1 (horizontal:vertical) (h:v). The average cell is estimated to contain approximately 2.69 million cubic yards of material, resulting in an approximate total of 100 million tons of marketable aggregate and 25 million tons of overburden and soils. Mining cell development would involve cell-by-cell mining and reclamation operations. According to the operational statement provided with the Project application, the operations would be typical of sand and gravel extraction, with conventional mining practices common to the industry. Soils and overburden would be removed and the underlying aggregate reserves would be excavated and transported to an on-site rock processing plant for washing and sizing. Materials would be sold as washed aggregates or used to make products including asphaltic concrete and Portland cement concrete at on-site plants. Access to the Project site would be from Reed Avenue.

The Project application included a reclamation plan intended to address the requirements of the Surface Mining and Reclamation Act of 1975 (§ 2710

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et seq.; SMARA) and associated state regulations, as well as County’s reclamation standards. The reclamation plan provided that all available overburden and soils would be used to recreate agricultural soils for continued production of tree crops. Remaining areas would be covered with water at varying elevations and would be used for irrigation and potential future water storage for irrigation. It was anticipated that 25 percent of the mined areas would be reclaimed to agricultural land and the remaining mined areas would be agricultural water ponds (also referred to as pits or basins).

Subsequent revised versions of the reclamation plan were prepared in May 2012 and August 2012.

Preparation and certification of the EIR, denial of Friends’ administrative appeal

In August 2010, County issued a notice of preparation of a draft EIR (DEIR) for the Project. In October 2011, County made the DEIR available for public review and comment. A 45-day review and comment period began on October 7 and ended on November 21, 2011.

In May 2012, County circulated the final EIR (FEIR). The FEIR consisted of the DEIR, revisions and corrections to the DEIR, comments received on the DEIR, a list of persons, organizations and public agencies that commented on the DEIR, responses to the comments, and other information added by County.[3] In July 2012, County gave notice of a public hearing on the Project. On August 9, 2012, the County planning commission held a public hearing on the Project and passed a resolution certifying the FEIR. The planning commission found that certain significant environmental effects could not be mitigated to insignificant levels and adopted a statement of overriding considerations. The significant environmental effects related to the conversion of farmland, air pollutant emissions, odors, and traffic.

Friends appealed the planning commission’s approval of the Project to the Board. On October 16, 2012, the Board considered and rejected petitioner’s appeal. The Board passed a resolution finding that the FEIR had been completed and processed in compliance with CEQA and certifying the FEIR. The Board adopted findings set forth in a 58-page document titled “CEQA Findings of Fact and Statement of Overriding Considerations, ” which was attached to the resolution, and found that the “Mitigation Monitoring and

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Reporting Program” (MMRP) (also attached to the resolution and incorporated by reference) was “adequate with respect to those mitigation ...


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