Thursday, November 19, 2015
C.A. Overturns Approval of San Francisco Bay Sand Mining
By KENNETH OFGANG, Staff Writer
The State Lands Commission violated the public trust doctrine when it approved the dredge mining of sand from sovereign lands under the San Francisco Bay, the First District Court of Appeal ruled yesterday.
Div. Four said the commission and a San Francisco Superior Court judge were wrong in concluding that an adequate review under the California Environmental Quality Act obviated the need for separate consideration of environmentalists’ claims that the plan was an inappropriate use of public trust land.
San Francisco Baykeeper, Inc., which has been fighting the project for years, sought a writ of mandate after the commission decided last year to renew, for 10-year terms, leases that were originally granted in 1998.
The leases allow three companies to extract sand from below Central San Francisco Bay, Suisun Bay, and the western Sacramento-San Joaquin River Delta, to be used in Bay Area construction project. Baykeeper argues that the mining is exacerbating a serious erosion problem, but the commission concluded that the alternative, requiring builders to bring in sand from a greater distance, would be at least as harmful to the environment.
The leaseholders requested in 2006 that the original 10-year terms be extended. The commission had been granting month-to-month extensions until it made its decision in October of last year to grant the full 10-year extensions, limiting the amount of extracted sand at each project parcel to a baseline tied to past activity.
San Francisco Superior Court Judge Terri L. Jackson denied the writ, concluding that the commission had complied with its obligations under both CEQA and the public trust doctrine.
Presiding Justice Ignacio Ruvolo, however, writing for the Court of Appeal, said Baykeeper was entitled to relief because the administrative record “does not affirmatively demonstrate that [the commission’ complied with its public trust obligations.”
The commission, he elaborated, was not necessarily wrong in arguing that “[c]ompliance with other environmental statutes can serve to fulfill an agency’s trust obligations.” But the commission’s broader argument, “that CEQA review of a project involving sovereign property necessarily satisfies the SLC’s public trust obligations,” is unsupported by the case law, the presiding justice said.
He also rejected the commission’s argument that it satisfied it public trust obligations in a portion of the Final Environmental Impact Report in which it acknowledged potential impacts, but concluded that those impacts would be mitigated through compliance with existing land use policies.
But that “brief acknowledgment,” Ruvolo said, relates to the obligations of other agencies and “reinforces our conclusion that the SLC did not implicitly consider its own obligations under the public trust doctrine as part of its CEQA review of this project.”
The court, did, however, agree with the trial judge that the commission did not violate CEQA. The commission staff, interested citizens, and public agencies including the San Francisco Bay Conservation and Development Commission “thoroughly explored” the issue of coastal erosion, he said, adding that Baykeeper failed to identify any available information that the commission did not review.
The presiding justice did criticize the commission for failing to consult with the Coastal Commission and the city. But that CEQA violation was harmless, he said, absent a showing that the lands commission lacked pertinent information at the time of the decision.
The case is San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc.), 15 S.O.S. 5451.
Copyright 2015, Metropolitan News Company