Fifth District Court of Appeal Upholds EIR Prepared for Large Mine Project in Fresno County

In a partially published opinion, the Fifth District Court of Appeal clarified an issue regarding appeals under the Surface Mining and Reclamation Act of 1975 (SMARA) and upheld the county’s choice of mitigation for loss of farmland. Friends of the Kings River v. County of Fresno, Case No. C071891 (Dec. 8, 2014).

The project in this case involved a proposed aggregate mine and construction of related processing plants on a 1,500-acre site in the County of Fresno. Mining and production activities would eventually occupy about 900 acres of the site; the remaining acreage would continue to support orchards. The project application included a reclamation plan as required by SMARA.

The County of Fresno prepared and certified an EIR for the project in 2012. Subsequently, petitioners submitted a designation appeal to the State Mining and Geology Board (SMGB) alleging that the reclamation plan failed to comply with SMARA. The SMGB granted the appeal and remanded the reclamation plan to the county. The county, in turn, revised the reclamation plan. During the SMGB appeal process, petitioners also filed a petition for writ of mandate against the county alleging violations of CEQA. The trial court denied the petition, and an appeal ensued.

The first published issue in the opinion addresses the scope of the SMGB’s authority over reclamation plans approved by a local lead agency. Petitioners argued that by remanding the county’s approved reclamation plan, the SMGB set aside or nullified the reclamation plan. Petitioners reasoned that the county failed to proceed in the manner required by law because the county approved a CUP absent a valid reclamation plan, contrary to the county code. The appellate court disagreed. Under SMARA, the only remedy available for a successful appeal to the SMGB is remand to the lead agency for reconsideration. The lead agency must then hold a public hearing and reconsider the action, but the lead agency is not required to set aside its prior decision.

The second published issue in the opinion addresses whether the county complied with CEQA by inadequately mitigating for permanent loss of farmland. The EIR for the project acknowledged that about 600 acres of farmland would be permanently lost over the course of 100 years. The county determined this loss of farmland would be a significant impact and adopted three mitigation measures addressing the impact. During public comments on the project, the county received a suggestion that permanent agricultural conservation easements (ACEs) could mitigate for the loss of farmland. The county addressed this suggestion in a master response which compared proposed mitigation measures with the recommendation to include ACEs in the project. The master response concluded that establishing such easements would not reduce the amount of farmland permanently converted as a result of the project. Therefore, the county found that ACEs would not mitigate the significant impact to less-than-significant levels, or substantially reduce the severity of the impact. The appellate court determined this evaluation of suggested mitigation measures compared to proposed mitigation measures was sufficient.

The appellate court rejected petitioner’s follow-up argument that the county was required to adopt ACEs as mitigation for the project as a matter of law. In support of this argument, Petitioner relied on Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, in which the First District Court of Appeal held that ACEs may appropriately mitigate for the direct loss of farmland. In Masonite, the County of Mendocino argued that ACEs only mitigate for “indirect and cumulative effects of farmland conversion.” The First District corrected the county, explaining that ACEs may compensate for direct loss within the meaning of the CEQA Guidelines, so the county erred by declining to consider ACE’s as a potentially feasible mitigation measure. In contrast, the County of Fresno considered the feasibility of ACEs in the final EIR.