Metropolitan News-Enterprise


Friday, July 11, 2003


Page 3


Reversal Required Where Key Findings Absent From CEQA Appellate Record, C.A. Rules


By a MetNews Staff Writer


Counties are responsible for ensuring that findings required under the California Environmental Quality Act are included in the appellate record, even when the record is prepared by the party opposing a project, the Fifth District Court of Appeal ruled yesterday.

In her opinion for the court, Justice Rebecca Wiseman harshly criticized the state of the appellate record prepared by environmental groups challenging Merced County’s approval of a massive mining project near the Merced River.

“When practicing appellate law,” Wiseman declared, “there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.”

The justice said the court was ordering publication of its decision reversing Merced Superior Court Judge William T. Ivey’s denial of a writ of mandate sought by the three environmental groups “not because the merits of this case warrant public proclamation but because we have observed a pattern of CEQA cases with poorly prepared records making review difficult, if not impossible.”

Wiseman continued:

“We iterate to anyone who will listen: CEQA has very specific requirements regarding what findings must be in the record. Do not ignore the requirements or, like these parties, you will find yourself in the unenviable position of having your judgment reversed and being forced to start over at great public and personal expense.”

The appellate record in the case, Wiseman said, “reads as if its preparers randomly pulled out documents and threw them into binders, failing to organize them either chronologically or by subject matter.”

She conceded that the record was prepared by the three groups challenging the project’s approval—Protect Our Water, the San Joaquin Raptor Rescue Center and the Merced River Valley Association. But she said that did not relieve the county of responsibility for ensuring that it contain written findings required by the act pertaining to the lack of feasibility of project alternatives and the county’s reasons for rejecting those alternatives.

While it appeared the county had considered alternatives and made the required findings, Wiseman explained, the court had found it “impossible to determine from this record what those findings are.”

The deficiencies in the record went beyond poor organization and indexing, Wiseman said, adding:

“The problems are more fundamental. The documents generated by the County are inadequate for review. It is impossible to identify many of the documents as the County has failed to properly label them, and some documents appear incomplete. In addition, in the confusion of this record, it is often difficult to differentiate between documents and attachments to those documents. We find it inconceivable that, given the scope and magnitude of this project, the documents comprising the administrative record are so defectively drafted. This responsibility fell squarely on the County.”

She concluded:

“Because we cannot discern the required findings under CEQA, we reverse the judgment.”

Justices Nickolas J. Dibiaso and Thomas A. Harris concurred in the opinion authored by Wiseman.

The case is Protect Our Water v. County of Merced, 03 S.O.S. 3647.


Copyright 2003, Metropolitan News Company