Archives: January 2012

Committee for Green Foothills v. Santa Clara County Board of Supervisors

(2010) 48 Cal.4th 32

The California Supreme Court held that the filing of a notice of determination (NOD) triggers the 30-day statute of limitations for all CEQA challenges to the decision announced in the notice, regardless of the nature of the CEQA violation alleged. The petitioners alleged that Santa Clara County had failed to determine whether review was required for an approval of a trail alignment for a countywide trail master plan, and therefore argued that the 180-day statute of limitations under Public Resources Code Section 21167, subdivision (d) should apply. The county had, however, filed an NOD.

Noting that Section 21167 does not specifically define the limitations period that applies to such a scenario, the Court found that the determinative question in identifying the appropriate statute of limitations was not the type of violation alleged, but whether the action complained of was disclosed in a public notice. According to the Court, when an agency gives the public notice of its decision under CEQA, the public can be expected to act promptly in challenging this decision. In contrast, when an agency does not give the statutorily required notice and the public is held to constructive notice based on the start of the project, a longer limitations period applies. Regardless of the type of violation alleged by petitioners, they had notice of the county’s action when the NOD was filed, and the Court concluded the petitioners thereafter had 30 days to file suit challenging that action.  The court also rejected the petitioners’ contention that the NOD was defective, and thus did not trigger a 30-day limitations period. The record supported the trial court’s finding that both the initial and the revised NODs were, at a minimum, in substantial compliance with CEQA guidelines. Of particular concern to the Court seemed to be the unusually short limitations periods set forth in CEQA, which are meant to ensure finality and predictability in land use planning decisions.  [RMM Partner Sabrina V. Teller filed a brief for League of California Cities and California State Association of Counties as Amici Curiae on behalf of the Respondent county.]

Save the Plastic Bag Coalition v. City of Manhattan Beach

(2011) 52 Cal.4th 155

The California Supreme Court upheld the City of Manhattan Beach’s decision to ban plastic bags on the basis of a negative declaration. In its opinion, the court dealt with two issues arising under the California Environmental Quality Act (CEQA): (1) standing and (2) the fair argument standard of review. Petitioner, a coalition of plastic bag manufacturers and distributors, claimed standing to maintain a citizen suit under CEQA. On the merits of the case, Petitioner argued that the evidence in the record supported a fair argument that the ban would increase environmental damage, so that an EIR was required. The Court ruled for Petitioner on the procedural issue and against Petitioner on the merits. The Court rejected a heightened standard to maintain standing for corporations, following the trend in the United States Supreme Court, seeming to place corporations and natural persons on equal footing.

The Court’s decision on the merits was more narrowly tailored, reversing the lower courts which had held the city had to prepare an EIR before implementing a ban on plastic bags. The Court found that the evidence cited by Petitioner regarding the “life cycle” analysis of paper and plastic bags was not substantial evidence, even supporting a fair argument, that the City’s actions would result in significant impacts. The Court held that what was relevant were not the impacts of paper or plastic bags on a global scale, but on “the actual scale of the environmental impacts that might follow from increased paper bag use in Manhattan Beach [a city of 40,000 people].” In reaching its conclusions, the court repeatedly emphasized that in CEQA, the analysis should focus on the local environment, citing Public Resources Code section 21151, subd. (b) (“any significant effect on the environment shall be limited to substantial, or potentially substantial, adverse changes in physical conditions which exist within the area as defined in Section 21060.5”) and section 21060.5 (the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, [and] objects of historic or aesthetic significance”). While the court stressed that the focus and depth of the analysis must be on local impacts, CEQA does require a consideration of impacts outside the boundaries of the project area, if such impacts will occur, but “[t]his does not mean, however, that an agency is required to conduct an exhaustive analysis of all conceivable impacts a project may have in areas outside its geographical boundaries. ‘[T]hat the effects will be felt outside of the project area . . . is one of the factors that determines the amount of detail required in any discussion. Less detail, for example, would be required where those effects are more indirect than effects felt within the project area, or where it [would] be difficult to predict them with any accuracy.”’ Here, because the City was not expecting a huge increase in the use of paper bags for a variety of reasons, “the city could evaluate the broader environmental impacts of the ordinance at a reasonably high level of generality.” [RMM Partner James G. Moose and Senior Counsel Jennifer S. Holman filed a brief for Californians Against Waste as Amici Curiae on behalf of the City of Manhattan Beach. Mr. Moose also presented the arguments on the merits of the CEQA suit on behalf of amicus and in support of the City’s position.]

Stockton Citizens for Sensible Planning v. City of Stockton

(2010) 48 Cal.4th 481

The California Supreme Court reversed a Court of Appeal decision holding that, despite alleged flaws in the decision-making process, a facially valid and properly filed notice of exemption (NOE) triggered the 35-day statute of limitation period for filing a lawsuit to challenge the city’s determination that it had approved a project exempt from CEQA. The Supreme Court held that a petition filed nearly six months after the City of Stockton had filed an NOE for approval of a Wal-Mart retail center that was consistent with a previously approved master development plan was untimely. The Court held that the posting of the NOE triggered the 35-day statute of limitations period under Public Resources Code section 21167, subdivision (d), regardless of whether the exemption determination was properly made.

The petitioners argued that the filing of an NOE could only have force or effect to trigger the 35-day limitations period if the underlying project approval were valid. The Court found that the petitioners’ argument ran contrary to the principle that limitations periods apply regardless of the merits of the claims asserted. Section 21167, subdivision (d), clearly requires suits claiming that an agency has “improperly determined” a project to be exempt from CEQA to be brought within 35 days after the filing of an NOE that complies with CEQA requirements. The Court also looked to the legislative intent of the statutory limitations periods and found that the approach argued for by the petitioners would circumvent CEQA’s unusually shortened statute of limitations for challenges where the agency has given public notice.

The Court also rejected petitioners’ argument that the NOE itself was defective, concluding that it demonstrated minimal compliance with CEQA in that it described the project in question, including its location, set forth the action taken, and detailed the reasons for the exemption finding. The NOE thus alerted the public that the statute of limitations for bringing a CEQA challenge to the noticed action had begun to run. Because petitioners had not filed their challenge within the 35-day limitations period, their claims were time-barred. [RMM Partner Whitman F. Manley filed a brief for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Real Parties in Interest and Appellants.]

Planning & Conservation League v. Castaic Lake Water Agency

(2009) 180 Cal.App.4th 210

The Second District Court of Appeal upheld the adequacy of an EIR certified by the Castaic Lake Water Agency analyzing the impacts of transferring 41,000 acre-feet of water to Castaic from the Kern County Water Agency and Wheeler Ridge Maricopa Water Storage District (collectively, “KCWA”).  The court ruled that Castaic was the proper lead agency, and the EIR contained an adequate analysis of the transfer in light of uncertainties regarding the outcome of a separate analysis concerning the operation of the State Water Project, from whence the 41,000 acre-feet derived.

The fate of the allocation of water from the SWP, and of this particular water transfer, has been the subject of much litigation and multiple published opinions.  In 1995, the Central Coast Water Authority prepared and certified an EIR regarding the “Monterey Agreement” – an agreement between the Department of Water Resources (DWR) and 29 water contractors revamping the allocation of water from the SWP.  In 1999, Castaic agreed to purchase 41,000 acre-feet of SWP water from KCWA.  Castaic certified an EIR in connection with this agreement.  Castaic’s EIR “tiered off” the Monterey Agreement EIR.  Castaic’s EIR drew a CEQA lawsuit, which was subsequently appealed.  Meanwhile, the Third District Court of Appeal issued an opinion striking down the Monterey Agreement EIR, reasoning, in part, that the DWR, as operator of the SWP with its state-wide reach, should have been the lead agency for the document, rather than the Central Coast Water Authority, one of the 29 water contractors that purchases SWP water. (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892.)  The Second District thereafter ruled that Castaic’s EIR was defective because it tiered off the defective Monterey Agreement EIR.  (Friends of the Santa Clara River v. Castaic Lake Water Agency (2002) 95 Cal.App.4th 1373 (Friends of the Santa Clara River).)  In an unpublished decision, the Second District upheld the decision of the trial court, on remand from Friends of the Santa Clara River, to decline to enjoin or otherwise invalidate the transfer, which was left in place.

In 2004, Castaic certified a second EIR concerning the 41,000 acre-feet transfer, this time expressly not tiering from the Monterey Agreement EIR.  The court found that Castaic’s 2004 EIR appropriately traced the history of the Monterey Agreement EIR, related litigation, and ongoing efforts by DWR.  The EIR then analyzed a “worst-case” scenario, consisting of SWP operations under the pre-Monterey Agreement contractual regime.  The court concluded that the 2004 EIR, though imperfect, provided an adequate road-map to Castaic’s analytic route from evidence to decision.   [RMM Partner James G. Moose and Associate Laura M. Harris were co-counsel for Respondent Castaic Lake Water Agency.]

Second District Holds the Purpose of CEQA Is to Consider Impacts of Projects on the Environment rather than Environment’s Impacts on the Project

Ballona Wetlands Land Trust v. City of Los Angeles
(2011) 201 Cal.App.4th 455

The Second District Court of Appeal upheld a revised EIR for the Playa Vista phase two project, prepared after a previous peremptory writ had been issued. The project opponents challenged the revised EIR with respect to the project description, the analysis of archaeological resources, the analysis of sea level rise resulting from global climate change, and the finding of no significant impact on land use consistency. The court concluded that the EIR adequately discussed preservation in place of archaeological resources and sea level rise. The court also concluded that newly-asserted challenges to the project description and the findings on consistency were beyond the trial court’s jurisdiction in these proceedings after issuance of the peremptory writ.

CEQA Guidelines section 15126.4, subdivision (b)(3) states that preservation in place is the preferred manner to mitigate impacts on historic archaeological resources and expressly requires a discussion of preservation in place in an EIR involving a historical archaeological site. The revised EIR stated that preservation in place is the preferred manner of mitigating impacts to archaeological sites, but explained the infeasibility of preservation in place. The revised EIR therefore concluded that data recovery and curation are appropriate mitigation measures, and described other mitigation measures that had already occurred and that would continue to occur. The court held that this analysis satisfied the requirements of CEQA Guidelines section 15126.4, subdivision (b)(3).

The court then addressed whether the revised EIR was required to analyze the effects of sea level rise on the project. The court explained that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.” In doing so, the court cited CEQA Guidelines section 15126.2, subdivision (a), which states in part that: “The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards.”

The court explained: “We believe that identifying the environmental effects of attracting development and people to an area is consistent with CEQA’s legislative purpose and statutory requirements, but identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA statutes.” The court thus held that “[c]ontrary to Guidelines section 15162.2 subdivision (a). . . an EIR need not identify or analyze such effects.”

Regarding sea level rise, the revised EIR briefly noted that global warming could result in sea level rise and the inundation of coastal areas, but provided no specific analysis of the impact on the phase two project site. It also explained in responses to comments that according to estimates by the Intergovernmental Panel on Climate Change that the project was not expected to be subjected to inundation as a result of sea level rise resulting from climate change. The court had rejected the opponents request for judicial notice of a flood hazard map prepared by the city prior to approval of the project because the map was not included in the administrative record and the opponents had shown no extraordinary circumstances to justify consideration of the extra-record evidence. The court held the revised EIR’s discussion of sea level rise was adequate.

In previous litigation, the court had held that the previous EIR’s analysis of land use impacts was inadequate, and therefore a peremptory writ was issued. In their challenge to the return to the writ and in their supplemental petition challenging the revised EIR, the project opponents asserted new challenges related to the project description, land use impacts, and the city’s findings regarding these issues. The court held that these challenges had to be raised prior to the judgment in the previous round of litigation, and therefore rejected them.

Third District Declines to Exercise Original Jurisdiction over CEQA Claims and Upholds Lower Court’s Decision Denying Motion to Dismiss Claims Due to Failure to Join Necessary Party

Quantification Settlement Agreement Cases
(2011) 201 Cal.App.4th 758

In a lengthy opinion focusing on the legality of agreements concerning the allocation of Colorado River water, the Third District Court of Appeal ruled (1) it was appropriate to remand the petitioners’ CEQA claims to the trial court, rather than for the Court of Appeal to exercise its original jurisdiction over those claims, and (2) the trial court did not abuse its discretion in denying a motion to dismiss the CEQA claims by virtue of the petitioners’ failure to name as real parties in interest all of the parties to one of the challenged agreements.

In 2003, the Imperial Irrigation District (“IID”), the Coachella Valley Water District (“Coachella”), and the Metropolitan Water District of Southern California (Metropolitan) entered a “Quantification Settlement Agreement” and (along with numerous other parties) various related agreements.  The agreements served to apportion California’s share of Colorado River water, and to provide a framework for conservation measures and water transfers among the parties.  IID filed a validation action.  Various entities filed answers in opposition to the validation action, as well as separate lawsuits challenging the agreements on various grounds.  The cases were consolidated and coordinated.  In January 2010, the trial court found that a key agreement implementing the Quantification Settlement Agreement was unconstitutional.  In light of this finding, the trial court dismissed CEQA challenges as moot, since the agreements had to be rescinded for reasons other than CEQA.  Various appeals and cross-appeals followed.

In the validation action, the Court of Appeal reversed the trial court’s conclusion that the agreement was unconstitutional.  The Court of Appeal rejected other challenges to the validity of the agreement as well.  The Court affirmed the trial court’s grant of summary adjudication of an allegation that the parties had failed to comply with the “wheeling statutes.”  (Wat. Code, §§ 1810-1814.)

CEQA challenges remained.  As noted above, the trial court had dismissed those claims as moot based on its (erroneous) conclusion that the agreements were invalid on constitutional grounds.  With the agreements revived, two of the petitioners – Imperial County and an environmental group – urged the Court of Appeal to reach the merits of their CEQA claims, rather than remanding them to the trial court.  The Court of Appeal declined.  Although the Courts of Appeal do have original jurisdiction to hear CEQA claims, the Court concluded the circumstances did not justify a departure from the normal practice of having the trial court consider CEQA claims in the first instance.

Coachella, Metropolitan, and the San Diego County Water Authority argued the trial court abused its discretion when it denied a pretrial motion to dismiss Imperial County’s CEQA lawsuit because the County had failed to name the United States and certain Native American Tribes as real parties in interest.  The trial court ruled the United States and tribes, as parties to certain agreements, were “recipients of approval” for purposes of subdivision (a) of Public Resources Code section 21167.6.5, and therefore “necessary parties.”  The trial court also ruled, however, that they were not “indispensable parties.”

The threshold issue was whether the United States and Tribes were “recipients of approval” under section 21167.6.5.  They were parties to an “allocation agreement” – one of 12 agreements implementing the overall QSA.  The EIR challenged by the County was intended to cover not merely the QSA, but also its implementing agreements, including the allocation agreement to which the United States and Tribes were a party.  The Court of Appeal therefore agreed with the trial court that the United States and Tribes were “recipients of an approval.”

Next, the Court of Appeal considered whether the trial court had abused its discretion in determining that the United States and Tribes were not “indispensable parties” under the factors set forth in Code of Civil Procedure section 389, subdivision (b).  The Court concluded the trial court had weighed those factors reasonably in denying the motion to dismiss.

Sixth District Allows Use of Background Conditions and Future Growth Factors in Traffic Baseline, Backing Away From Recent Cases Rejecting Use of Future Conditions

Pfeiffer v. City of Sunnyvale
(2011) 200 Cal.App.4th 1552

The Sixth District Court of Appeal upheld an EIR for the expansion of a medical campus in the City of Sunnyvale. The petitioners, neighbors of the project, alleged that: (1) the project is inconsistent with the general plan; (2) the EIR’s discussion of general plan conformity is inadequate; (3) the EIR used a legally incorrect baseline to determine traffic impacts; and (4) the analysis of traffic noise is inadequate.

Regarding general plan consistency, the project opponents argued that that project is inconsistent with the general plan because a portion of the project slated for storage and waste management are located in an area that the general plan designates as low-density residential, which, the opponents argued, expressly excludes any use other than single-family, detached homes. The court rejected the opponents’ claims, pointing to the existing zoning and other uses in the vicinity of the project.

The project opponents also argued that, pursuant to CEQA Guidelines section 15125, subdivision (d), the EIR “had a duty to fully present the issue of general plan consistency of that portion of the project being built on land designated in the City’s general plan as exclusively residential with single family detached homes.” The court rejected this argument stating that CEQA requires only a discussion of general plan inconsistency. Similarly, the court rejected the opponents’ claims that the City did not adequately respond to comments on the issue of consistency because “[t]he response contains a similar level of detail as the comment and demonstrates a good faith analysis as to how the matter was addressed and analyzed.”

The project opponents argued that the EIR’s baseline for traffic was improper because it used hypothetical “background conditions” rather than the actual existing conditions. The “background conditions” were “existing peak-hour volumes multiplied by a growth factor plus traffic from approved but not yet constructed developments in the area. The traffic growth factor was developed based on the City of Sunnyvale’s travel demand forecasting model.” The court first confirmed that establishing the proper baseline is a fact-based analysis and is subjected to the substantial evidence standard of review. Here, the opponents had failed to show that the City’s determination was not supported by substantial evidence.

The court distinguished the case of Sunnyvale West Neighborhood Assn. v. City of Sunnyvale (2010) 190 Cal.App.4th 1351. The court quoted Sunnyvale West “[a]lthough ‘[n]either CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing conditions baseline’ [citation] nothing in the law authorizes environmental impacts to be evaluated only against predicted conditions more than a decade after EIR certification and project approval.” The court then explained “Sunnyvale West is therefore distinguishable from the present case, where the traffic baselines included in the EIR were not limited to projected traffic condition in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.”

Regarding noise, the court rejected the opponents’ claim that the traffic noise was inadequate because it relied on hypothetical levels of traffic. The record showed the analysis used existing noise levels, and the court found the opponents had failed to meet their burden. The court also rejected the opponents’ claim that the EIR did not properly identify mitigation for significant construction noise impacts. Although the EIR was less than clear on the point, the court pointed to significance conclusions and mitigation measures identified in the EIR. The court held this was adequate.

Third District Upholds Dismissal of CEQA Petition Where Petitioner Corporation Had Been Suspended Until After Statute of Limitations Had Run

Friends of Shingle Springs Interchange v. County of El Dorado
2011 200 Cal.App.4th 1470

The Third District Court of Appeal held that dismissal of a CEQA petition by demurrer was proper where the petitioner corporation had been suspended and did not obtain revival within the statute of limitations. The Friends of Shingle Springs Interchange, Inc. (FSSI) filed a verified petition for writ of mandate challenging the certification and approval of a Circle K mini-mart and gas station complex off Highway 50 in Shingle Springs. FSSI challenged approval of the project asserting three causes of action in its petition: violations of the CEQA, violations of the Planning and Zoning Law, and “violating the traffic safety provisions” of a County Regulation.

At the time FSSI filed its petition, its corporate powers had been suspended for two and a half years. The Real Party in Interest and the County demurred to the petition, asserting that FFSI did not have the legal capacity to file the petition and that FFSI’s corporate powers were not revived until after the applicable statute of limitations had run. The trial court sustained the demurrer without leave to amend.

The appellate court first determined that dismissal of the petition by demurrer was proper. The court then considered whether the petition could be saved by the “substantial compliance” doctrine. The court held that a suit filed by a corporation while its powers were suspended does not toll the statute of limitations. The suit is ineffective because of the suspension, so that statute continues to run. The court invited supplemental briefing on the issue of whether the doctrine of substantial compliance with corporate suspension and reviver statutes apply in CEQA and Planning and Zoning Law challenges to avoid the statute of limitations for such actions. The court held that the substantial compliance doctrine cannot be used by a suspended corporation to defeat the short statutes of limitation in actions involving CEQA or the Planning and Zoning Law.

First District Upholds State Lands Commission’s Use of Environmental Baseline for Renewal of Existing Marine Terminal Operations

Citizens for East Shore Parks v. California State Lands Commission
(2011) – Cal.App.4th – [2011 Cal. App. LEXIS 1645]

The First District Court of Appeal ruled that an EIR prepared by the State Lands Commission for the renewal of an existing marine terminal used a proper environmental baseline in assuming the continued existence and operation of the terminal; thus, the EIR did not need to assume the terminal would discontinue operations, even though that would occur if the Commission did not renew the lease.

In 1998, Chevron applied to the State Lands Commission to renew the lease for an existing wharf serving Chevron’s refinery located in the City of Richmond.  The Commission embarked on the CEQA process.  Initially, the Commission decided to prepare the EIR assuming that the physical wharf would remain in place, but that operations there would cease.  Over time, the Commission’s position evolved, such that the “baseline” would consist not merely of the physical wharf, but also of ongoing operations.  Using this baseline, the Commission determined the lease renewal could result in significant environmental impacts associated with the risk of oil spills.  In 2007, the Commission released the Final EIR.  In 2009, the Commission certified the EIR, approved the lease renewal, and adopted a statement of overriding considerations.  The “Citizens” sued.  The trial court denied the petition.  The Citizens appealed.

First, the Citizens argued the Commission’s EIR used the wrong baseline, claiming the baseline should have excluded use of the marine terminal.  In this case, the baseline consisted of “existing conditions” at the time the Commission prepared the EIR.  Those conditions included an operating marine terminal.  The Citizens argued, however, that a different rule applied in the context of a permit renewal, since the agency could cause operations to cease simply by declining to renew the lease.  Moreover, because the construction and operation of the terminal predated CEQA, they had never undergone environmental review.  The Court rejected this argument, reasoning that, under the California Supreme Court’s decision in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, the Commission properly focused on existing conditions, not conditions that may have existed decades in the past.  The record showed the Commission’s approach was consistent with permit renewals elsewhere in the Bay Area, and accurately reflected actual operations at the terminal.  Nor was the Commission bound by its initial determination regarding the proper baseline:  “Administrative agencies not only can, but should, make appropriate adjustments, including to the baseline, as the environmental review process unfolds.”

Second, the Citizens argued the EIR should have analyzed an alternative consisting of removing the causeway connecting the terminal to the refinery, and instead burying pipelines.  According to the Citizens, such an alternative would have avoided the project’s impacts on recreation by removing an obstruction to a bay trail.  The Court disagreed, noting that because the causeway was part of the baseline, the EIR properly concluded the lease renewal would not have significant impacts on recreation.  Similarly, the Final EIR’s responses to comments on recreational impacts were adequate, since the lease renewal did not involve new construction that would impact recreation.

Third, the Citizens argued the EIR’s project description should have encompassed the entire refinery, rather than just continued use of the marine terminal.  The evidence showed, however, that the lease renewal was the only action before the Commission, and the Commission had not “chopped up” the project as a means of evading CEQA review.

Fourth, the Citizens argued the EIR’s analysis of cumulative water discharge impacts was flawed.  The Court disagreed, noting that water discharges were part of the existing wharf operation, and therefore part of the baseline.  For the same reason, the EIR did not need to analyze whether the lease renewal was consistent with State legislation calling for establishing a “water trail” around San Francisco Bay.  Moreover, the EIR noted plans to establish a land-trail around the Bay, passing through upland areas adjacent to the terminal.  The Commission urged discussions to establish a route through the refinery for this trail, and Chevron designated a site and committed $2 million to this effort.  Given that the Commission had no jurisdiction over upland areas, the Commission’s efforts sufficed.  The record also showed the Commission consulted with trustee agencies by sending the agencies copies of the Draft EIR.

Finally, the Citizens argued that, under the Public Trust Doctrine, the Commission was required, to undertake an additional review process and impose additional mitigation conditions.  The Court disagreed, holding that, where the Commission’s decision “continued a permissible and long-standing trust use” and the Commission performed an adequate analysis under CEQA, “there was no violation of the public trust doctrine.”