San Francisco Baykeeper, Inc. v. State Lands Commission

Filed 11/18/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SAN FRANCISCO BAYKEEPER, INC.,

Petitioner and Appellant,

v.

CALIFORNIA STATE LANDS A142449

COMMISSION,

(San Francisco City & County

Defendant and Respondent; Super. Ct. No. CPF-12-512620)

HANSON MARINE OPERATIONS, INC.

et al.,

Real Parties in Interest.

I.

INTRODUCTION

In October 2014, the California State Lands Commission (SLC) approved the San

Francisco Bay and Delta Sand Mining Project (the project), which authorizes real parties

in interest Hanson Marine Operations, Inc., Morris Tug & Barge, Inc. and Suisun

Associates (collectively, Hanson) to continue dredge mining sand from sovereign lands

under the San Francisco Bay pursuant to 10-year mineral extraction leases. San

Francisco Baykeeper, Inc. (Baykeeper) filed a petition for writ of mandate challenging

the SLC’s decision to approve the project, which the trial court denied. In this court,

Baykeeper contends (1) the SLC failed to comply with the California Environmental

Quality Act (CEQA) (Pub. Resources Code,1 § 21000 et seq.), and (2) the mineral leases

authorized by the SLC’s approval of the project violate the common law public trust

1

Statutory references are to the Public Resources Code unless otherwise stated.

1

doctrine. As we explain, the SLC’s environmental review of the mining project complied

with CEQA, but its failure to consider whether the sand mining leases are a proper use of

public trust property requires us to reverse the judgment, and to direct the trial court to

grant the writ of mandamus requiring the SLC to address this important issue.

II.

STATEMENT OF FACTS

A. The Project

In 1998, the SLC granted Hanson’s predecessors-in-interest 10-year mineral

extraction leases authorizing the dredge mining of sand from delineated areas under the

Central San Francisco Bay, Suisun Bay and the western Sacramento-San Joaquin River

Delta. In 2006, Hanson applied for an extension of the leases for an additional 10 years.

The lease parcels are all sovereign lands, owned by the State of California subject to the

public trust, and managed by the SLC. Because the leases expired before the SLC

decided whether to extend them, it authorized Hanson to continue mining on a month-to-

month basis while it reviewed an application for five new 10-year mineral extraction

leases of essentially the same parcels of sovereign lands. Four of these leases, along with

another lease of a privately owned parcel in the Suisun Bay, comprise the project that has

become the subject of this litigation.

The purpose of Hanson’s dredge mining operation is to obtain marine aggregate

sand for construction purposes within the greater San Francisco area. Bay sand is

composed of “alluvial sand and gravel resulting from erosion and sediment transport”

which, in contrast to other types of crushed stone aggregate, has rounded edges making it

desirable for construction because it is easier to use and causes less wear on equipment.

The mining method Hanson employs involves the use of a trailing arm hydraulic suction

dredge and barge. A tugboat positions the barge over the mining site, and the hydraulic

suction dredge creates a flurry of water and sand, which mobilizes the sand and then

pumps it into the barge. A typical mining event lasts approximately three to four hours.

The project “objective” proposed by Hanson was “[t]o obtain renewal of all

necessary permits and approvals necessary to continue mining sand at an economically

2

viable level in San Francisco Bay for the next 10 years.” Hanson sought authorization to

mine a maximum volume of sand in the amount of 2.04 million cubic yards per year

(cy/yr). This figure was lower than the total permitted annual mining volume during the

previous lease period which was capped at 2.240 million cy/yr. However, the average

annual volume of sand that was actually mined from the lease areas between 2002 and

2007 was only 1,426,650 cy/yr.

B. Environmental Review

The SLC determined this project may have a significant adverse impact on the

environment necessitating preparation of an environmental impact report (EIR). In July

2007, it published a “Notice of Preparation” (NOP) of the EIR. In a July 2010 Draft EIR

(the 2010 Draft EIR), SLC staff examined “the potential environmental effects of the

proposed new leases and continuing sand mining for an additional 10-year period.” The

public was invited to submit comments on the 2010 Draft EIR in writing and in person at

two public meetings that were held in August 2010. Thereafter, SLC staff determined

that changes to the project constituted significant new information which required

recirculating a full revised draft EIR in November 2011 (the 2011 Revised Draft EIR).

The change most relevant to this appeal pertained to the EIR’s definition of the

“baseline” condition against which to measure the environmental impacts of the project.

The 2010 Draft EIR had defined that baseline as the volume of sand mined from the lease

parcels in 2007, the year the NOP for this EIR was published. However, in the 2011

Revised Draft EIR, SLC staff concluded that “a baseline that accounts for mining levels

over several years provides a more accurate measure of the current level of mining

activity against which to evaluate Project impacts.” Therefore, the baseline used in the

2011 Revised Draft EIR was the average annual volume of sand mined in the proposed

project area per year from 2002 to 2007.

In September 2012, the SLC published a Final EIR for the project. In that

document, SLC staff provided responses to 12 sets of comments on the 2011 Revised

Draft EIR and additional “Master Responses” which addressed three topics that were the

subject of multiple comments: (1) the definition of the baseline used to evaluate the

3

impacts of the project; (2) the potential adverse impact of the project on the erosion of the

San Francisco Offshore Bar and shoreline;2 and (3) the standards of significance used to

evaluate the impact of the project on mineral resources. Additional information

responsive to some of these comments was also incorporated into the Final EIR’s

analyses of pertinent issues. SLC staff concluded these revisions did not require

recirculation of the EIR.

The Final EIR’s analyses of the environmental impacts of the project examined

“the differences between the proposed sand mining operations and the sand mining that

occurred, on average, under the original lease agreements in the five years before the

NOP was issued.” SLC staff concluded the project “would have the potential for several

significant impacts, including impacts on Biological Resources, Hazards and Hazardous

Materials, Air Quality, Cultural Resources, and Land Use and Recreation.” All but one

of these impacts could be reduced through mitigation to a less than significant level. The

one impact which was considered both a significant project impact and a significant

cumulative impact even after all appropriate mitigation measures were applied was that

the “[r]egular operation of sand mining activities will cause entrainment and mortality of

delta and longfin spelt.”

The Final EIR also evaluated four project alternatives: (1) a “No Project

Alternative” under which the SLC would not issue the proposed mining leases and other

regulatory agencies would not renew permits necessary for Hanson to continue mining on

public lands or on the privately held parcel within the project area; (2) a “Long-term

Management Strategy Conformance Alternative,” which would require Hanson to

comply with temporal and special restrictions on dredging contained in the “Long-Term

Management Strategy for the Placement of Dredged Material in the San Francisco Bay

Region Management Plan 2001,” but would otherwise approve the project as proposed by

Hanson, including the proposed mining volumes; (3) a “Clamshell Dredge Mining

2

The San Francisco Offshore Bar (Bar) “is an area directly west of the Golden

Gate Bridge where sand and sediments flow through at high velocities from the narrow

gate into a wide and shallow horse-shoe shaped plateau where sediments are deposited.”

4

Alternative,” which would require Hanson to employ an alternative to its suction dredge

mining method; and (4) a “Reduced Project Alternative” which would “reduce permitted

annual mining volumes in all of the lease areas to a level equivalent to the baseline

mining volumes (i.e., the 2002 to 2007 average mined at each Project parcel).”

According to the Final EIR, the No Project Alternative would avoid most of the

significant impacts of the project, but would also “require the Bay Area construction

industry to acquire sand from other, likely more distant sources, with consequent

increases in air emissions, including greenhouse gases.” Therefore, this No Project

Alternative was “not considered environmentally superior to the other alternatives or to

the Project as proposed.” Instead, the Final EIR identified the Reduced Project

Alternative as the environmentally superior alternative because it would “reduce the

intensity of the Project’s significant impacts, and would likely render mitigation measures

easier to implement and achieve.” Furthermore, although this alternative could result “in

significant unavoidable air quality impacts associated with importing sand and obtaining

sand from quarries, the overall intensity of impacts would be less than the other

alternatives.”

C. The SLC’s Decision

On October 19, 2012, the SLC certified the Final EIR and approved a modified

version of the project, which was referred to as the “Reduced Project Alternative with

Increased Volume Option.” The SLC adopted the Reduced Project Alternative proposed

in the Final EIR, but added an “Option” which provided that the total volume of sand

Hanson would be allowed to mine could be increased to the proposed project levels if

Hanson complied with conditions demonstrating a reduction of the two most significant

adverse impacts of the project: (1) the entrainment and mortality of delta and longfin

smelt, and (2) the emission of criteria pollutants.

The SLC formalized its decision in a “Statement of Findings and Statement of

Overriding Considerations.” The SLC made findings addressing each of the significant

environmental impacts identified in the final EIR. The SLC’s decision included a

“Statement of Overriding Considerations” because the final EIR identified significant

5

impacts of the approved project that “cannot feasibly be mitigated to below a level of

significance.”3 In that Statement, the SLC balanced the unavoidable environmental

impacts against the benefits of the project, which included providing jobs, supplying high

quality sand to the Bay Area construction industry, and generating substantial royalties

for the state. The SLC found, among other things, that if the project was not approved,

regional demand for construction aggregate would require obtaining sand from other

sources including quarries in the region and imports from Canada, which was feasible but

would result in “greater environmental consequences, particularly air quality impacts.”

Ultimately, the SLC concluded that “the benefits anticipated by implementing the Project

outweigh and override the expected significant effects.”

Like the Final EIR, the SLC’s Statement of Findings and Statement of Overriding

Considerations recognized that the project involves 10-year mineral extraction leases of

California sovereign lands. However, the SLC did not address its obligations under the

common law public trust doctrine or make any findings regarding the propriety of

authorizing private parties to mine sand from sovereign lands.

D. The Mandate Proceeding

In November 2012, Baykeeper filed a petition for writ of mandate to compel the

SLC to set aside its approval of the project for failing to comply with CEQA. Pursuant to

a March 2013 amendment, Baykeeper added a cause of action for violating the public

trust doctrine. Initially, the superior court sustained a demurrer to Baykeeper’s public

trust claim, concluding that this doctrine does not create a separate cause of action for

enforcing CEQA. Subsequently, however, this court granted Baykeeper’s petition for a

writ of mandate and directed the superior court to vacate its prior order and overrule the

demurrer to the public trust cause of action. As we explained in our order, the issue

3

“A statement of overriding considerations is required ‘ “[i]f approval of the

project will result in significant environmental effects which ‘are not at least substantially

mitigated . . . .’ ” ’ [Citations.] Such statement provides the agency’s reasons for

proceeding with the project despite its unavoidable environmental risks. [Citation.]”

(Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 569

(Citizens for East Shore Parks).)

6

whether sand mining is a public trust use is distinct from CEQA. On April 28, 2014, the

trial court denied Baykeeper’s mandate petition, finding that the final EIR satisfied all the

pertinent requirements of CEQA, and that the mineral leases did not violate the public

trust doctrine.

III.

CEQA DISCUSSION

A. Issues on Appeal

Baykeeper contends that the SLC violated CEQA by approving the project

pursuant to a deficient EIR. “ ‘ “The EIR is the heart of CEQA” and the integrity of the

process is dependent on the adequacy of the EIR. [Citations.]’ [Citation.] ‘The purpose

of an [EIR] is to provide public agencies and the public in general with detailed

information about the effect which a proposed project is likely to have on the

environment; to list ways in which the significant effects of such a project might be

minimized; and to indicate alternatives to such a project.’ (§ 21061.)” (Citizens for a

Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th

1036, 1045 (Treasure Island).)

“An EIR should be prepared with a sufficient degree of analysis to provide

decisionmakers with information which enables them to make a decision which

intelligently takes account of environmental consequences. An evaluation of the

environmental effects of a proposed project need not be exhaustive, but the sufficiency of

an EIR is to be reviewed in the light of what is reasonably feasible. . . . The courts have

looked not for perfection but for adequacy, completeness, and a good faith effort at full

disclosure.” (Guidelines, § 15151.)4

4

All references to “Guidelines” are to the CEQA Guidelines promulgated by the

state’s Resources Agency pursuant to section 21083. (Cal. Code Regs., tit. 14, § 15000

et seq.) “ ‘In interpreting CEQA, we accord the Guidelines great weight except where

they are clearly unauthorized or erroneous.’ [Citation.]” (Communities for a Better

Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319,

fn. 4 (South Coast Air).)

7

“We review an agency’s determinations and decisions for abuse of discretion. An

agency abuses its discretion when it fails to proceed in a manner required by law, or

when its determination or decision is not supported by substantial evidence. [Citations.]

Judicial review of these two types of error differs significantly: While we determine

de novo whether the agency has employed the correct procedures, scrupulously enforcing

all legislatively mandated CEQA requirements, we accord greater deference to the

agency’s substantive factual conclusions. [Citation.] In CEQA cases, as in other

mandamus cases, we independently review the administrative record under the same

standard of review that governs the trial court. [Citation.]” (Treasure Island, supra, 227

Cal.App.4th at p. 1045.)

With these standards in mind, we turn to Baykeeper’s specific complaints about

the Final EIR, which are: (1) the baseline for assessing projects is not supported by the

record; (2) SLC staff failed to analyze properly project impacts on soil erosion and to

elicit public comment on significant new information about this issue which was included

in the Final EIR; (3) SLC staff criteria to evaluate project impacts on mineral resources;

and (4) the SLC failed to notify and consult with interested agencies about the project.

B. The Baseline

Baykeeper contends that the SLC abused its discretion by using a baseline which

did not accurately reflect existing conditions at the mining sites.

1. Background

As noted in our factual summary, when the SLC started its environmental review

it used the volume of sand mined from the leased parcels during 2007, the year the NOP

was filed, as its baseline for measuring project impacts. However, it subsequently

determined that a five-year average of annual mining volumes was a better indicator of

existing mining conditions than the 2007 rate. The 2011 Revised Draft EIR, which was

circulated for agency and public comment, explained how and why the baseline was

changed. SLC staff found that the volume of sand mined from the leased areas during

2007 was not an accurate reflection of existing baseline conditions because (1) limiting

the baseline to any single calendar year would fail to account for the fact that the “annual

8

quantity of sand mined fluctuates substantially due to changes in demand, economic

conditions, capacity, and other factors,” and (2) the volume of sand that was mined in

2007 was in the “low range when compared with previous years.”

The Final EIR further explained the baseline change in responses to comments on

the 2011 Revised Draft EIR and in a Master Response about the baseline. SLC staff

acknowledged that the time of NOP publication normally constitutes the baseline

condition for the project, but also found that “[i]n some instances, as here, where the level

of an existing operation can vary substantially from year to year, a lead agency may opt

to consider an average level of operations over some period of years to characterize that

existing operation.” SLC staff also opined that using the average volume of sand mined

per year from 2002 to 2007 “recognizes that sand mining activity levels can fluctuate

substantially from year to year depending on market demand and other factors: the

average of several years best characterizes the overall level of mining activity at the time

the NOP was published.” Furthermore, staff explained that its baseline was conservative

because the intensity of sand mining operations during the 2002-2007 period was lower

than the average for the entire 10-year period covered by Hanson’s prior set of leases and

was also lower than permitted levels for that prior period.

2. Analysis

Baykeeper contends the Final EIR’s entire impacts analysis was deficient because

the baseline conditions were artificially inflated and not reflective of current mining

conditions in the project area.

To consider properly any significant adverse effects a project is likely to have on

the physical environment, “an EIR must delineate environmental conditions prevailing

absent the project, defining a baseline against which predicted effects can be described

and quantified. [Citation.]” (Neighbors for Smart Rail v. Exposition Metro Line

Construction Authority (2013) 57 Cal.4th 439, 447 (Neighbors for Smart Rail).) This

baseline “must ordinarily be the actually existing physical conditions rather than

hypothetical conditions that could have existed under applicable permits or regulations.

[Citation.]” (Id. at p. 448, italics omitted; see also South Coast Air, supra, 48 Cal.4th at

9

pp. 320–323.) This general rule derives from Guidelines section 15125, subdivision (a),

which states: “An EIR must include a description of the physical environmental

conditions in the vicinity of the project, as they exist at the time the notice of preparation

is published, or if no notice of preparation is published, at the time environmental

analysis is commenced, from both a local and regional perspective. This environmental

setting will normally constitute the baseline physical conditions by which a lead agency

determines whether an impact is significant.”

However, “ ‘the date for establishing a baseline cannot be a rigid one.

Environmental conditions may vary from year to year and in some cases it is necessary to

consider conditions over a range of time periods.’ [Citation.]” (South Coast Air, supra,

48 Cal.4th at pp. 327-328.) Thus, “despite the CEQA Guidelines’ reference to ‘the time

the notice of preparation is published, or if no notice of preparation is published, . . . the

time environmental analysis is commenced’ [citation], ‘[n]either CEQA nor the CEQA

Guidelines mandates a uniform, inflexible rule for determination of the existing

conditions baseline. Rather, an agency enjoys the discretion to decide, in the first

instance, exactly how the existing physical conditions without the project can most

realistically be measured, subject to review, as with all CEQA factual determinations, for

support by substantial evidence.’ [Citation.]” (Neighbors for Smart Rail, supra, 57

Cal.4th at p. 449.)

In this case, the SLC determined that a five-year average of annual mining

volumes was a better indicator of existing mining conditions than the 2007 rate in light of

the financial crisis of 2007, and the general nature of the mining industry. Those findings

are supported by substantial evidence including data from the California Geological

Survey that “California’s residential construction slowdown during [2007] contributed to

a significant decrease in both production and value of construction aggregate (sand and

gravel and crushed stone).” Statistics regarding the permitted and actual sand mining

volumes from the lease areas during the previous lease period also support the SLC’s

conclusions about the fluid nature of mining activities in general. Thus, the SLC did not

10

abuse its discretion by adopting a baseline that accounted for mining conditions during

the five-year period prior to the filing of the NOP.

Arguing for a contrary conclusion, Baykeeper contends that the SLC’s baseline is

not supported by “meaningful analysis.” (Citing Save Our Peninsula Committee v.

Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 128 [EIR contained

inadequate baseline discussion because it invited agency to select among multiple water

production figures with no meaningful analysis or showing that figures were accurate];

County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955

[“An adequate EIR requires more than raw data; it requires also an analysis that will

provide decision makers with sufficient information to make intelligent decisions.”].)

However, we find that the parts of the Final EIR summarized above contain a meaningful

analysis of the information that the SLC considered when defining the baseline for this

project.

Baykeeper insists the baseline analysis was inadequate because the Final EIR “did

not disclose, let alone analyze, more recent sand mining levels, which dropped

substantially after 2007, during the precise period between the publication of the Draft

EIR and the Revised Draft EIR.” In fact, the SLC did address this issue in the comments

section of the Final EIR where it explained that “inclusion of the unusually low mining

volumes in years after NOP publication during the economic downturn commonly

considered the most pronounced recession since the Great Depression would distort the

baseline by understating the overall levels of mining in years prior to the expiration of the

previous leases and commencement of EIR preparation.” Baykeeper’s disagreement with

the Final EIR’s analysis is insufficient to establish that the SLC abused its discretion.

C. Erosion and Sedimentation

Baykeeper contends that the Final EIR’s discussion of the environmental impacts

of the project on the erosion of coastal beaches is (1) inadequate because EIR preparers

did not actually analyze the cumulative impacts of commercial sand mining on erosion of

the coast and Bar, and (2) improper because it included significant new information that

was not circulated for public or agency comment.

11

1. Background

The potential direct and cumulative impacts of the project on soil erosion were

considered in a section of the Final EIR, which analyzed impacts on hydrology,

geomorphology, and water quality. This analysis included a comprehensive discussion of

the relevant environmental setting, including the regional setting and climate, surface

water hydrology and drainage, estuarine circulation, sediment dynamics, bathymetry, and

morphology. Significantly, SLC staff “estimated that the net change in volume within

the Central Bay sand mining lease areas was a loss of approximately 11.6 million cubic

yards of sediment from 1997 to 2008,” and recognized that this volumetric loss “is

roughly equivalent to the reported volumes of sand mined from the Central Bay lease

areas over this same time period.”

The Final EIR used a 2009 study by Coast Harbor Engineering (the CHE study) to

evaluate the project impacts on erosion or sedimentation. The CHE study included a

sand mining resource evaluation as well as an impact assessment of this specific project.

CHE performed a bathymetry analysis of data collected from the lease areas and

surrounding locations over the past 10 years. It also used numerical models to compare

existing conditions to two project-condition scenarios. These analyses showed, among

other things, that (1) reported mining volumes in the lease areas are approximately equal

to the measured erosion from 1997 to 2008, an indication that mining resources available

for the proposed additional 10 years of mining are limited to sand already in place;

(2) erosion attributable to mining is confined to the vicinity of the mined areas; (3) sand

mining is not likely to cause measurable sediment depletion outside the mining areas;

(4) the effects of mining on sediment transport are limited to the vicinity of the mining

activity; and (5) very little sediment is transported from the mining areas to the outer

coast location of the San Francisco Bar. Adopting these findings, the Final EIR

concluded that “an additional 10 years of mining, combined with the last 10 years of

mining and future maintenance dredging, is expected to further alter the morphology of

the seabed in these locations, with concomitant, though minor and less-than significant

effects on circulation, sediment transport, and water quality.”

12

In addition to finding a less than significant project impact, the final EIR

separately considered the potential “cumulative effects on sediment transport and coastal

morphology.” SLC staff recognized that some studies “suggest[]” that sand mining in the

Bay contributes to the observed erosion of the coastal beaches, the theory being that

sand-sized sediment from the San Francisco Bar is transported through wave energy and

distributed along coastal beaches and, therefore, any erosion of the Bar caused by sand

mining also substantially contributes to the erosion of coastal beaches. Despite these

suggestions, the Final EIR found that “a direct or empirical causal link between

commercial sand extraction from the Bay and erosion of the San Francisco Bar has not

been established,” noting that other plausible explanations for the erosion of the Bar

include increase in wave height and changes in the tidal prism of the Bay. Furthermore,

the Final EIR found that, although sand mining has caused a reduction in the average

annual net sediment within the Bay-Delta estuary, “it is not clear if and how the losses

due to mining translate to observed changes in other areas within or just outside of the

estuary, including the San Francisco Bar.”

As noted in our factual summary, a Master Response in the Final EIR addressed

several comments the SLC received about the impacts of the project on sediment

transport and coastal morphology. To better respond to those comments, SLC staff

arranged for the “EIR preparers to undertake supplemental analysis, including new

modeling, to further investigate and quantify the potential for the Project to reduce the

volume of sediment transported through the Golden Gate to the Bar and Ocean Beach.”

The new information SLC staff reviewed included two recent but not yet

published scientific articles authored by United States Geological Survey Coastal

Geologist Patrick Barnard and others (the 2012 Barnard articles), which drew

connections between sediment transport in the Bay, the shrinking Bar, and the erosion of

coastal beaches. The SLC was particularly concerned by a conclusion in one article that

corroborated an earlier finding by Barnard that sand waves patterns indicate that sediment

is transported from the central Bay in the direction of the Bar. The 2012 Barnard articles

did not quantify the rate at which sediment was being transported to the Bar or explore

13

the effects of sand mining on that process. Nevertheless, out of an abundance of caution,

SLC staff arranged for a supplemental modeling study which was “intended to quantify

the potential contribution of the Project, and in particular continued sand mining in the

Central Bay lease areas, to the observed shrinking of the Bar, and therefore erosion

within certain areas of Ocean Beach.”

CHE performed the supplemental modeling and sediment transport analysis and its

conclusions were incorporated into the Final EIR’s discussion of project impacts on

sediment transport and coastal morphology. According to the Final EIR, CHE’s

supplemental findings reinforced the conclusions in the 2011 Revised Draft EIR

regarding the less than significant project specific and cumulative impacts on coastal and

Bar erosion. In this regard, the Final EIR stated:

“[S]upplemental analysis of the previous modeling effort and the results of new

modeling presented in this EIR confirm the findings and conclusions previously reached

for [the project impact] and for cumulative effects of the Project on sediment transport, as

reiterated below. The original CHE study presented in Appendix G of the EIR, and

supplemental analyses confirm the EIR conclusions regarding [the project] impact . . .

and the potential cumulative effects of the Project on sediment transport and coastal

morphology. The results of these analyses clarify and quantify the conclusion reached in

Appendix G of the EIR: if the Project is approved and sand mining continues at the

proposed volume for a 10-year period, there is likely to be a reduction of 5,000-7,000

cubic yards of sediment transported from Central Bay through the Golden Gate annually.

This range represents approximately 0.2-0.3 percent of the long-term rate of erosion of

the Bar, as calculated by Hanes and Barnard (2007). Consistent with the conclusions

presented in this EIR, the [SLC] considers this Project-associated reduction in sediment

transport, and any secondary effects on coastal morphology, to be a less-than-significant

impact, and a less-than-cumulatively considerable contribution to a cumulative impact.”

14

2. Adequacy of Cumulative Impacts Analysis

Baykeeper contends the cumulative impact analysis was incomplete because it did

not include an actual assessment of the impact of this project in combination with other

relevant past, present and future sand projects.

“ ‘The cumulative impact from several projects is the change in the environment

which results from the incremental impact of the project when added to other closely

related past, present, and reasonabl[y] foreseeable probable future projects. Cumulative

impacts can result from individually minor but collectively significant projects taking

place over a period of time.’ (CEQA Guidelines, § 15355, subd. (b).) ‘Cumulative

impact analysis “assesses cumulative damage as a whole greater than the sum of its

parts.” ’ [Citation.]” (Association of Irritated Residents v. County of Madera (2003) 107

Cal.App.4th 1383, 1403.)

The Guidelines require that an EIR discuss “cumulative impacts of a project when

the project’s incremental effect is cumulatively considerable.” (Guidelines, § 15130,

subd. (a).) If, on the other hand, the cumulative impact is insignificant or if the project’s

incremental contribution to the impact is not cumulatively considerable, the Lead Agency

is not required to conduct a full cumulative impacts analysis, but the EIR must include a

brief explanation of the basis for the agency’s finding(s). (Ibid.; City of Long Beach v.

Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 909 (City of Long Beach).

As discussed above, the Final EIR provided more than a brief explanation for its

conclusions regarding the project’s incremental contribution to the cumulative impact on

sediment transport and coastal erosion. Because SLC staff found that impact was less

than significant, a more comprehensive analysis of the cumulative impact of past,

present, and future sand mining projects on sediment transport and coastal erosion was

not required. (Guidelines, § 15130, subd. (a); City of Long Beach, supra, 176

Cal.App.4th at p. 909.)

Baykeeper contends that the Final EIR’s conclusion regarding the incremental

effect of the project was erroneous because it was based on an improper “ratio” theory,

pursuant to which SLC staff found the project’s incremental impact was relatively

15

insignificant by comparing it to the overall problem of coastal erosion. To support this

argument, Baykeeper relies on Kings County Farm Bureau v. City of Hanford (1990) 221

Cal.App.3d 692 (Kings County). The Kings County court found that an EIR prepared for

a project to develop a 26.4-megawatt coal-fired cogeneration plant in the City of Hanford

contained “insufficient information in several respects for the Hanford City Council to

have made an informed decision whether to approve the project.” (Id. at p. 707.)

Among its many problems, the Kings County EIR contained insufficient

information about the cumulative impacts of the project on air quality within the valley-

wide area. (Kings County, supra, 221 Cal.App.3d at pp. 718-721.) Acknowledging that

cumulative ozone impacts of valley-wide energy development projects were potentially

significant, the EIR preparers nevertheless found that the project would not have a

significant cumulative impact because it would contribute less than one percent of area

emissions for all criteria pollutants in the valley. (Ibid.) The Kings County court found

that this “ ‘ratio’ theory” “improperly focused upon the individual project’s relative

effects and omitted facts relevant to an analysis of the collective effect this and other

sources will have upon air quality.” (Id. at p. 721.) As the court explained, this approach

“avoids analyzing the severity of the problem and allows the approval of projects which,

when taken in isolation, appear insignificant, but when viewed together, appear startling.”

(Ibid.) Beyond that, the court found that this ratio theory creates the false impression that

the greater the overall environmental problem, the less significant an individual project’s

contribution to the problem will be. (Ibid.)

Kings County and its progeny illustrate that a project’s cumulative environmental

impact cannot be deemed insignificant solely because its individual contribution to an

existing environmental problem is relatively small. (Kings County, supra, 221

Cal.App.3d 692, 718-721; Los Angeles Unified School Dist. v. City of Los Angeles (1997)

58 Cal.App.4th 1019, 1024-1026; Communities for a Better Environment v. California

Resources Agency (2002) 103 Cal.App.4th 98, 118-121 (California Resources Agency),

overruled on another ground in Berkeley Hillside Preservation v. City of Berkeley (2015)

60 Cal.4th 1086, 1109, fn. 3.) In fact, “the greater the existing environmental problems

16

are, the lower the threshold should be for treating a project’s contribution to cumulative

impacts as significant.” (California Resources Agency, supra, 103 Cal.App.4th at p. 120,

fn. omitted.) By the same token, however, these cases do not hold that any additional

effect a project may have “necessarily creates a significant cumulative impact; the ‘one

[additional] molecule rule’ is not the law.” (Ibid., fn. omitted, original italics.) Rather, to

conduct a proper assessment of cumulative impact an EIR must consider not just whether

that cumulative impact is significant but also whether the proposed project’s incremental

effects are cumulatively considerable. (Ibid.)

Here, as discussed above, the Final EIR’s analysis of cumulative impacts of Bay

mining on the erosion of the San Francisco Bar and coastal beaches discussed efforts by

CHE to quantify the potential contribution of the project to the erosion of the San

Francisco Bar. If, as Baykeeper contends, that exercise produced an irrelevant ratio, it

was only one minor component of the EIR’s cumulative impacts analysis. Indeed, this

attempt to measure the project’s contribution to the erosion of the Bar was a supplemental

component of the Final EIR that was added to reinforce the impact conclusions

previously reached in the 2011 Revised Draft EIR. Thus, the Final EIR bears little

resemblance to the cursory analysis of the cumulative ozone impacts that was found

lacking in Kings County, supra, 221 Cal.App.3d 692. It did not employ a misleading

ratio to avoid addressing the complex issue of sediment erosion. Rather, as reflected in

our discussion above, it analyzed pertinent studies regarding sediment transport and

resulting erosion which substantially supported its conclusion that there was insufficient

proof that this type of mining activity has a significant impact on the erosion of the Bar

and coastal beaches.

3. EIR Circulation Requirement

Baykeeper contends that the SLC violated CEQA by failing to recirculate the Final

EIR because the 2012 Barnard articles and the CHE supplemental modeling and analysis

constituted significant new information about the causal link between sediment transport

and coastal erosion.

17

“The Guidelines describe the types of ‘significant new information’ requiring

recirculation of a draft EIR. (Guidelines, § 15088.5, subd. (a).) These include disclosure

of ‘[a] new significant environmental impact,’ ‘[a] substantial increase in the severity of

an environmental impact,’ and the addition of a ‘feasible project alternative or mitigation

measure considerably different from the others previously analyzed.’ (Guidelines,

§ 15088.5, subd. (a)(1)–(3).) The Guidelines state that ‘[n]ew information added to an

EIR is not “significant” unless the EIR is changed in a way that deprives the public of a

meaningful opportunity to comment upon a substantial adverse environmental effect of

the project or a feasible way to mitigate or avoid such an effect . . . .’ (Guidelines,

§ 15088.5, subd. (a).)” (Treasure Island, supra, 227 Cal.App.4th at p. 1063.)

“[C]ourts must defer to an agency’s explicit or implicit decision not to recirculate

a draft EIR so long as it is supported by substantial evidence. [Citations.] Indeed, . . . an

agency’s determination not to recirculate is given ‘substantial deference’ and is presumed

‘to be correct.’ ” (Treasure Island, supra, 227 Cal.App.4th at pp. 1063-1064.) Thus, the

appellant bears the burden of proving substantial evidence does not support the agency’s

decision not to recirculate an EIR. (Western Placer Citizens for an Agricultural & Rural

Environment v. County of Placer (2006) 144 Cal.App.4th 890, 903.)

In the present case, substantial evidence supports the SLC’s decision not to

recirculate the Final EIR. The 2012 Barnard articles and the supplemental CHE study

were relevant to the scientific controversy regarding the impact of sand mining on coastal

erosion. However, that controversy had been fully disclosed and considered in the 2011

Revised Draft EIR, and this new information did not alter any of the substantive

conclusions about the controversy itself or the significance of the impacts of this project

on coastal erosion. Both the 2011 Revised Draft EIR and the Final EIR stated that the

reduction of sediment from the Bay-Delta estuary is a possible and plausible cause of the

erosion of the San Francisco Bar, but posited that there is a missing causal link between

the erosion or removal of sediment in different parts of the estuary and the reduction of

the supply of sediment from the Bay-Delta estuary to the San Francisco Bar. Crucially,

18

both versions of the report concluded that, in any event, the project would not have a

significant project specific or cumulative impact on sediment transport or coastal erosion.

Baykeeper’s interpretation of the new studies is fundamentally different than the

interpretation adopted by the SLC. It views the 2012 Barnard articles as establishing an

undeniable connection between sand mining and coastal erosion and the supplemental

CHE modeling as disclosing for the first time that the project will have a measurable

quantifiable impact on sediment transport and coastal erosion. We will not endeavor to

resolve the parties’ lengthy argument about the proper interpretation of these studies and

their implications with respect to the controversy regarding the effect of sand mining on

coastal erosion. “Disagreement among experts does not make an EIR inadequate, but the

EIR should summarize the main points of disagreement among the experts.” (Guidelines,

§ 15151.) As discussed above, the 2011 Revised Draft EIR thoroughly addressed the

controversy about impacts of sand mining on sediment transport and coastal erosion. The

new studies discussed in the Final EIR did not significantly alter the main points of

disagreement. Therefore, the SLC’s decision not to recirculate is supported by

substantial evidence.

D. Impacts on Mineral Resources

Seeking de novo review, Baykeeper contends that the SLC misconstrued CEQA

provisions governing proper analysis of project impacts on mineral resources.

1. Background

The final EIR evaluated “the potential loss of availability of known mineral

resources, including sand and construction aggregate associated with the proposed

[project] over the next 10 years.” This analysis was limited to minerals within sediments

on or under the Bay floor, of which only two were identified: (1) sand and gravel

deposits valuable as construction aggregate or construction fill material; and (2) oyster

shells that have been commercially mined for their mineral content since 1924. To

measure the impacts of the project on these two mineral resources, the EIR used

threshold of significance criteria that are set forth in appendix G of the CEQA Guidelines

(Appendix G).

19

Appendix G is an “Environmental Checklist Form” that agencies use to evaluate

the potential environmental impacts of a project. (Guidelines, Appen. G; see, e.g.,

Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 896 & fn. 5

(Oakland Heritage Alliance).) To assess project impacts on “Mineral Resources,”

Appendix G asks whether the project would: “a) Result in the loss of availability of a

known mineral resource that would be of value to the region and the residents of the

state?” or “b) Result in the loss of availability of a locally-important mineral resource

recovery site delineated on a local general plan, specific plan or other land use plan?”

(Guidelines, Appen. G.)

According to the Final EIR, these threshold criteria “reflect State and local policy

that recognizes the importance of mineral resources in meeting society’s needs and [are]

intended to ensure the disclosure of a proposed project’s potential to preclude mineral

extraction, for example by developing a land use over or adjacent to a deposit of mineral

resources that was incompatible with or that would preclude future mining activities.”

Applying these criteria, SLC staff determined that oyster shell deposits are located

far from the lease areas in the shallow southern reaches of the Bay. Thus, the Final EIR

concluded that the proposed operations “would not interfere with mining of these known

oyster shell beds nor would they preclude the future development of mineral resources

other than sand, should such resources be identified within any of the lease areas in the

future.”

With respect to sand—the object of the mining project—SLC staff acknowledged

that an additional 10 years of sand mining would reduce the amount of sand that would

be available for future mining in most of the lease areas. It also found that the mining of

a nonrenewable mineral resource will generally deplete that resource. However, staff

concluded that the purpose of a CEQA impact analysis was not to assess whether mining

would deplete the mined resource, but rather whether the project would interfere with

important mineral resource deposit areas that should be conserved for purposes of

extraction of the valued mineral and not be lost to an incompatible use. Because the

20

project was compatible with this environmental goal, the SLC concluded it did not have a

significant adverse impact on known mineral resources.

One of the Master Responses in the Final EIR addressed multiple comments the

SLC received about the project impacts on mineral resources. In that response, SLC staff

rejected the contention that Appendix G required it to assess whether the project will

deplete a sand resource, reiterating that mining “is inherently not a sustainable activity: it

extracts raw materials from the earth at a ratio greater than the natural processes that

created the raw material.” Furthermore, the SLC maintained that the “commonly used

interpretation of the [Appendix G] significance criteria for Mineral Resources impacts”

calls for an examination of “the potential for [the] proposed project to interfere with or

prevent mineral extraction.” For example, a housing development blocking access to a

known mineral deposit would have a significant impact on that resource. Here, by

contrast, the project does not propose to limit access to or limit the availability of a

known mineral resource.

2. Analysis

Baykeeper contends that the SLC committed a prejudicial abuse of discretion by

misconstruing the Appendix G thresholds for measuring impacts on mineral resources.

According to Baykeeper, the plain language of those standards mandated that the Final

EIR evaluate the impact resulting from the allegedly permanent depletion of sand

minerals. We disagree with this argument for at least three reasons.

First, Baykeeper misconstrues the function of Appendix G by treating it as part of

the CEQA statute. “[T]he Guidelines make clear that the checklist form in appendix G is

‘only suggested, and public agencies are free to devise their own format for an initial

study.’ (Guidelines, § 15063, subd. (f).) Furthermore, ‘CEQA grants agencies discretion

to develop their own thresholds of significance (CEQA Guidelines, § 15064, subd. (d)).’

[Citation] ‘To require any deviation from [the standards of significance in appendix G]

to be documented and justified . . . is to elevate Appendix G from a suggested threshold

to the presumptive threshold. This flatly contradicts both CEQA’s description of

Appendix G as only suggested and CEQA’s mandate that agencies have the power to

21

devise their own thresholds.’ [Citation.]” (Rominger v. County of Colusa (2014) 229

Cal.App.4th 690, 716.)

Second, Baykeeper fails to provide authority supporting its interpretation of the

Appendix G thresholds pertaining to mineral resources. The Final EIR’s use of the

Appendix G standards to measure impacts on accessibility to a known mineral resource

that would be valuable to the region or locality is consistent with state policies regarding

the regulation of land uses that are incompatible with mineral extraction. (See, e.g.,

§ 2711, subd. (a) [“the extraction of minerals is essential to the continued economic well-

being of the state and to the needs of the society”]; § 2711, subd. (d) [“the production and

development of local mineral resources that help maintain a strong economy and that are

necessary to build the state’s infrastructure are vital to reducing transportation emissions

that result from the distribution of hundreds of millions of tons of construction aggregates

that are used annually in building and maintaining the state”]; § 2790 [authorizing the

State Geologist to designate geographic areas as areas of statewide or regional

significance in order to prevent premature development incompatible with the

“advantages that might be achieved from extraction of the minerals of the area”].)

Finally, “ ‘ “[t]he substantial evidence standard is applied to conclusions, findings

and determinations. It also applies to challenges to the scope of an EIR’s analysis of a

topic, the methodology used for studying an impact and the reliability or accuracy of the

data upon which the EIR relied because these types of challenges involve factual

questions.” [Citation.]’ ” (Oakland Heritage Alliance, supra, 195 Cal.App.4th at

p. 898.) Here, the conclusion in the Final EIR that the mining activities authorized by the

project will not have a significant adverse impact on mineral resources is supported by

evidence that the project will not lead to the loss of the availability of a mineral resource,

but instead will provide the citizens of this state with access to that very resource.

Baykeeper disputes this last point, arguing that the depletion of Bay sand

authorized by the project will necessarily have “significant, permanent effects” on the

availability of mineral resources because the project “will preclude the mining of this

resource by any other entity, at any other time.” But this theory is premised on

22

Baykeeper’s interpretation of the Appendix G thresholds, which would measure the

depletion of a mineral resource, rather than the interpretation of these CEQA thresholds

that the SLC applied, which considered availability in terms of access. For the reasons

discussed above, Baykeeper has failed to establish that CEQA required the SLC to adopt

Baykeeper’s interpretation of Appendix G.

E. Notice and Consultation

Baykeeper contends that the SLC violated CEQA by failing to consult with the

Coastal Commission and the City of San Francisco before it certified the Final EIR.

1. CEQA Requirements

CEQA requires that the lead agency consult with all responsible agencies and

trustee agencies before determining whether an EIR is required for a project.

(§ 21080.3.) “ ‘Trustee agency’ means a state agency that has jurisdiction by law over

natural resources affected by a project, that are held in trust for the people of the State of

California.” (§ 21070.) Upon determining that a project requires preparation of an EIR,

the lead agency “shall” send notice of that determination (i.e., the NOP) “by certified

mail or an equivalent procedure to each responsible agency, the Office of Planning and

Research, and those public agencies having jurisdiction by law over natural resources

affected by the project that are held in trust for the people of the State of California.”

(§ 21080.4.)

CEQA further requires that before completing the EIR, the lead agency “shall

consult with, and obtain comments from, each responsible agency, trustee agency, any

public agency that has jurisdiction by law with respect to the project, and any city or

county that borders on a city or county within which the project is located . . . .”

(§ 21104.)

2. Analysis

Baykeeper contends that the SLC failed to comply with notice and consultation

requirements applicable to trustee agencies because it did not consult with the California

Coastal Commission before deciding to prepare an EIR for the project (§ 21080.3),

provide the Coastal Commission with notice of the 2007 NOP (§ 21080.4), or consult

23

with that agency at any time prior to certifying the Final EIR (§ 21104). Without

independent analysis, Baykeeper also contends the SLC violated section 21104 by failing

to consult with the City of San Francisco before it certified the Final EIR.

The SLC first contends that the Coastal Commission was not a trustee agency for

this project because its jurisdiction is limited to the “coastal zone” (§ 30103), while this

project is located outside that zone in the middle of the Bay. However, the fact that the

project location is outside the coastal zone is beside the point because the pertinent

inquiry for identifying a trustee agency is whether the project will have an effect on

natural resources over which the state agency has jurisdiction. (§ 21070.) Here, the Final

EIR explicitly acknowledged that this sand mining project would have a tenuous although

ultimately insignificant effect on coastal erosion.

Alternatively, the SLC contends that it substantially complied with CEQA’s notice

and consultation requirements because the record establishes that both the Coastal

Commission and the City received actual notice of the preparation of an EIR for this

project, had the opportunity to comment on the project, and ultimately declined to do so.

To support this substantial compliance theory, the SLC invokes Guidelines

section 15207, which states: “If any public agency or person who is consulted with

regard to an EIR or negative declaration fails to comment within a reasonable time as

specified by the lead agency, it shall be assumed, absent a request for a specific extension

of time, that such agency or person has no comment to make.” In Citizens for East Shore

Parks, supra, 202 Cal.App.4th 549, the appellate court applied Guidelines section 15207

to find that CEQA’s consultation requirements were not violated in a case in which the

SLC provided responsible agencies with notice and a copy of a draft EIR, asked for

comments within 45 days, and neither agency responded. (Id. at pp. 567-568.) In this

case, however, Guidelines section 15207 does not support the SLC’s substantial

compliance argument.

In contrast to Citizens for East Shore Parks, supra, 202 Cal.App.4th at page 567,

the record before us does not show that the SLC attempted to consult with either the City

or the Coastal Commission before it approved this project. The SLC cites to evidence

24

that the City received actual notice of the 2007 NOP, but does not even contend the City

was provided with any version of the EIR. Furthermore, the record reflects that the State

Clearinghouse provided a copy of the 2010 Draft EIR to “selected state agencies for

review,” that the Coastal Commission was one of those agencies, and that “no state

agencies submitted comments” on the 2010 Draft EIR.5 However, the Coastal

Commission was not provided with the 2011 Revised Draft EIR, which contained

indisputably significant new information about coastal erosion, the very impact that

affected its jurisdiction.

Courts have found that “ ‘ “[f]ull compliance with the letter of CEQA is essential

to the maintenance of its important public purpose.” [Citation.] ‘ “[W]e must be

satisfied that [administrative] agencies have fully complied with the procedural

requirements of CEQA, since only in this way can the important public purposes of

CEQA be protected from subversion.” [Citation.]’ ” (Schenck v. County of Sonoma

(2011) 198 Cal.App.4th 949, 959 (Schenck).) By the same token however, a violation of

CEQA notice and consultation requirements requires reversal only upon proof of

prejudice. (Id. at p. 959.) “The ‘error is prejudicial where failure to comply with the law

results in “a subversion of the purposes of CEQA by omitting information from the

environmental review process . . . .” ’ [Citation.]” (Ibid.; see also § 21005, subd. (a).)

In its appellant’s opening brief, Baykeeper characterizes the failure to consult with

the City and Coastal Commission as a prejudicial abuse of discretion, but it does not

identify any information that was omitted from the environmental review process that

would have been provided by these other agencies. In its reply brief, Baykeeper contends

that the Coastal Commission would have provided crucial information about the impacts

of the project on coastal erosion if had it been given the opportunity to consult. Finding

no evidence to support this argument in the appellate record, Baykeeper requests that this

court take judicial notice of a January 2015 letter from members of the Coastal

5

Guidelines section 15087, subdivision (f) states: “Public agencies shall use the

State Clearinghouse to distribute draft EIRs to state agencies for review and should use

areawide clearinghouses to distribute the comments to regional and local agencies.”

25

Commission staff to the executive director of the San Francisco Bay Conservation and

Development Commission (BCDC) regarding an application that Hanson filed with the

BCDC for 10-year mining permits it needs to move forward with the project (the January

2015 letter). The January 2015 letter recommends that permits for Hanson’s project be

limited and monitored in recognition of its effect on the eroding coastal system and the

limited sources of new sand. It also discusses the Final EIR for the project and disagrees

with some of the SLC’s conclusions regarding the effects of sand mining on coastal

erosion.

Baykeeper contends the January 2015 letter is relevant to establish that violations

of CEQA’s notice and consultation requirements precluded “relevant information from

being presented” to the SLC (quoting § 21005, subd. (a)), and it requests that this court

take judicial notice of the letter as an official act of the executive branch. (See Evid.

Code, § 452.) Without resolving the parties’ dispute as to whether the January 2015

letter was an official act, we deny the request for judicial notice because Baykeeper fails

to substantiate its theory of relevancy. (Golden Gate Land Holdings LLC v. East Bay

Regional Park Dist. (2013) 215 Cal.App.4th 353, 366 [“Only relevant evidence is

admissible by judicial notice.”].)

The primary problem with Baykeeper’s theory is that the January 2015 letter

expresses current opinions of Coastal Commission staff as opposed to opinions it held

prior to October 2012 when the SLC completed its five-year environmental review of this

project. Indeed, the only record evidence on this issue shows that the Coastal

Commission had the opportunity to comment on the 2010 Draft EIR in 2010 and elected

not to do so.

Arguably, the additional information in the 2011 Revised Draft EIR about the

controversy regarding the effect of sand mining on coastal erosion might have stimulated

the Coastal Commission to comment on the project. However, even if we make this

assumption, the January 2015 letter is not relevant absent some proof that it contains

material information that should have been considered during the environmental review

process. (Schenck, supra, 198 Cal.App.4th at p. 960 [“The critical factor is that even

26

without notice to the [agency] the information gathering and presentation mechanisms of

CEQA were not subverted or even compromised.”].)

Here, the record demonstrates that the issue of coastal erosion was thoroughly

explored during the CEQA review process, not just by SLC staff, but by interested

citizens and agencies including the BCDC. Baykeeper does not identify any material

information in the January 2015 letter that was actually available at the time the SLC

conducted its CEQA review, and yet not considered by the SLC as part of its review.

Thus, we conclude that the appellate record shows that the SLC violated CEQA

requirements designed to ensure that it consult with affected agencies including the

California Coastal Commission and the City of San Francisco. However, Baykeeper’s

failure to demonstrate that these violations resulted in the omission of pertinent

information from the environmental review process requires that we reject its contention

that there was a prejudicial violation of CEQA notice and consultation requirements in

this case.

IV.

PUBLIC TRUST DISCUSSION

A. Issue on Appeal

As our factual summary reflects, there is no dispute that the project authorizes the

private use of land that is protected by the public trust. “When California became a state

in 1850 it succeeded to sovereign ownership of various tidelands and submerged lands

under the terms of the common law trust doctrine.” (Western Oil & Gas Assn. v. State

Lands Com. (1980) 105 Cal.App.3d 554, 562 (Western Oil & Gas).)

The question on appeal is whether the SLC violated the public trust doctrine by

failing to consider whether the sand mining leases constitute a permissible use of public

trust property. Conceding that it did not conduct an inquiry or make findings under the

public trust doctrine, the SLC takes the position that, as the public trustee of submerged

lands under the Bay, it had plenary authority to approve the mining leases without

making any findings under the public trust doctrine.

27

B. Guiding Principles

“The public trust doctrine, which is traceable to Roman law, rests on several

related concepts. First, that the public rights of commerce, navigation, fishery, and

recreation are so intrinsically important and vital to free citizens that their unfettered

availability to all is essential in a democratic society. [Citation.] ‘An allied principle

holds that certain interests are so particularly the gifts of nature’s bounty that they ought

to be reserved for the whole of the populace. . . . [¶] Finally, there is often a recognition,

albeit one that has been irregularly perceived in legal doctrine, that certain uses have a

peculiarly public nature that makes their adaptation to private use inappropriate.’. . .

[Citation.]” (Zack’s, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1175-1176,

fn. omitted (Zack’s).)

The United States Supreme Court announced the public trust doctrine in Illinois

Central Railroad v. Illinois (1892) 146 U.S. 387 (Illinois Central), which is still the

primary authority elucidating its function and purpose. (National Audubon Society v.

Superior Court (1983) 33 Cal.3d 419, 437 (National Audubon).) Illinois Central

established that “the title which a State holds to land under navigable waters is . . . held in

trust for the people of the State, in order that they may enjoy the navigation of the waters

and carry on commerce over them, free from obstruction or interference by private

parties; that this trust devolving upon the State in the public interest is one which cannot

be relinquished by a transfer of the property; that a State can no more abdicate its trust

over such property, in which the whole people are interested, so as to leave it under the

control of private parties, than it can abdicate its police powers in the administration of

government and the preservation of the peace; and that the trust under which such lands

are held is governmental so that they cannot be alienated, except to be used for the

improvement of the public use in them.” (Long Sault Development Co. v. Call (1916)

242 U.S. 272, 278-279.)

“While the public trust doctrine has evolved primarily around the rights of the

public with respect to tidelands and navigable waters, the doctrine is not so limited.”

(Center for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349,

28

1360 (Center for Biological Diversity).) More than “ ‘a set of rules about tidelands,’ ” or

“ ‘a restraint on alienation by the government,’ ” this doctrine functions “ ‘largely as a

public property right of access to certain public trust natural resources for various public

purposes.’ [Citation.]” (Ibid.) Thus, the doctrine protects “expansive public use of trust

property.” (Ibid.)

The range of public trust uses is broad, encompassing not just navigation,

commerce, and fishing, but also the public right to hunt, bathe or swim. (City of Berkeley

v. Superior Court (1980) 26 Cal.3d 515, 521 (City of Berkeley).) Furthermore, the

concept of a public use is flexible, accommodating changing public needs. (National

Audubon, supra, 33 Cal.3d at p. 434.) For example, an increasingly important public use

is the preservation of trust lands “in their natural state, so that they may serve as

ecological units for scientific study, as open space, and as environments which provide

food and habitat for birds and marine life, and which favorably affect the scenery and

climate of the area.’ [Citation.]” (Id. at pp. 434-435.)

The public trust is also “more than an affirmation of state power to use public

property for public purposes. It is an affirmation of the duty of the state to protect the

people’s common heritage of streams, lakes, marshlands, and tidelands, surrendering that

right of protection only in rare cases when the abandonment of that right is consistent

with the purposes of the trust.” (National Audubon, supra, 33 Cal.3d at p. 441.) Thus,

the state or trustee has “an affirmative duty to take the public trust into account in the

planning and allocation of [trust] resources, and to protect public trust uses whenever

feasible.” (Id. at p. 446, fn. omitted.)

“Where . . . the propriety of a governmental relocation of trust land from one

public use to another is placed in question, the seminal opinion in Illinois Central, supra,

146 U.S. 387, makes clear that courts should ‘look with considerable skepticism upon

any governmental conduct which is calculated either to reallocate that resource to more

restricted uses or to subject public uses to the self-interest of private parties.’ [Citation.]

Trust lands may be devoted to purposes unrelated to the trust if such purposes are

incidental to and accommodate trust uses but . . . there are limits on the legislative

29

authority to free use of trust land for nontrust purposes.” (Zack’s, supra, 165 Cal.App.4th

at p. 1176, italics omitted.)

There is no set “procedural matrix” for determining state compliance with the

public trust doctrine. (Citizens for East Shore Parks, supra, 202 Cal.App.4th at

pp. 576-577.) However, “[a]ny action which will adversely affect traditional public

rights in trust lands is a matter of general public interest and should therefore be made

only if there has been full consideration of the state’s public interest in the matter; such

actions should not be taken in some fragmentary and publicly invisible way. Only with

such a safeguard can there b[e] any assurance that the public interest will get adequate

public attention.’ [Citation.]” (Zack’s, supra, 165 Cal.App.4th at pp. 1188-1189.)

C. Analysis

Applying the principles summarized above, we conclude that the SLC’s authority

to approve private sand mining leases of public trust property carries with it an

“affirmative duty to take the public trust into account . . . and to protect public trust uses

whenever feasible.” (National Audubon, supra, 33 Cal.3d at p. 446, fn. omitted.) The

appellate record, jointly prepared by the parties, does not demonstrate that the SLC

fulfilled that duty in this case.

The SLC acknowledges that it did not make any findings about this project under

the public doctrine, implicitly conceding that it did not consider whether Hanson’s

mining project is a proper use of trust property. Nevertheless, the SLC takes the position

that it did not violate the public trust doctrine for three reasons: First, sand mining is

indisputably a public trust use of sovereign land; second, even if the mining leases are not

a public trust use, the public trust doctrine does not apply to mineral extraction leases

which do not permanently alienate the trust res; and finally, CEQA review eliminates the

obligation to consider whether a project violates the public trust. We will separately

address the flaws in each of these theories.

1. Private Sand Mining Is Not Per Se a Public Trust Use

The SLC contends that it was not required to consider whether the project violates

the public trust doctrine because sand mining is categorically a public trust use and, in

30

National Audubon, supra, 33 Cal.3d 419, our Supreme Court expressly confirmed that

the public trustee has sole discretion to prefer one public trust use over any other.

In National Audubon, supra, 33 Cal.3d 419, plaintiffs argued that permits

authorizing the Department of Water and Power of the City of Los Angeles to divert

water from Mono Lake violated the public trust doctrine. The Attorney General defended

the permits as a valid public trust use of the lake property which met the water needs of

Los Angeles residents, and argued that the public trust doctrine did not prevent the state

“from choosing between trust uses.” (Id. at p. 440.) The National Audubon court

rejected this argument and remanded the case for administrative review under the public

trust doctrine. In reaching its decision, our Supreme Court affirmed the state’s authority

to chose between trust uses, but it rejected the Attorney General’s improper attempt to

“maximize state power under the trust” by adopting an overbroad concept of trust uses

that would encompass “all public uses, so that in practical effect the doctrine would

impose no restrictions on the state’s ability to allocate trust property.” (Ibid.) Although

the court did not articulate a single test for identifying a valid public trust use, it approved

authority holding that trust uses “relate to uses and activities in the vicinity” of the trust

property at issue. In doing so, it explicitly rejected the idea that the state is free to

alienate trust property solely because the grant would serve “some public purpose, such

as increasing tax revenues, or because the grantee might put the property to a commercial

use.” (Ibid.)

In the present case, the SLC’s argument that it has unfettered discretion to prefer

sand mining as a preauthorized public trust use of the lease parcels rests on the same

overbroad concept of trust uses that was rejected in National Audubon—it takes the

position that extraction of a mineral resource for commercial purposes is a public use

because it serves a public need for construction grade sand. However, a use does not

qualify as a trust use simply because it might confer a public benefit. (National Audubon,

supra, 33 Cal.3d at p. 440; see also Zack’s, supra, 165 Cal.App.4th at p. 1176

[distinguishing the state’s trust obligations from its general obligation to act for the public

benefit].) The scope of this public right is expansive and flexible in order to

31

accommodate changing needs. (National Audubon, supra, 33 Cal.3d at p. 434; City of

Berkeley, supra, 26 Cal.3d at p. 521 [doctrine encompasses broad range of “public

uses”].) But, by its very essence, a public trust use facilitates public access, public

enjoyment, or public use of trust land. (Ibid.; Center for Biological Diversity, supra, 166

Cal.App.4th at p. 1360 [doctrine confers a public property right of access to trust

resources].) The private activity of removing valuable soil sediment for commercial

profit from beneath the Bay does not necessarily comport with that definition.

The SLC contends that courts have recognized that the production of mineral

resources for commercial purposes constitutes a public trust use of state land since 1928

when our Supreme Court decided Boone v. Kingsbury (1928) 206 Cal. 148 (Boone). The

issue in Boone was whether a statute violated the public trust doctrine by authorizing the

granting of permits to California residents to prospect for oil and gas on “tidal and

submerged lands and to lease the same on a royalty basis.” (Id. at p. 154.) The Boone

court held the Legislature had “fully considered all questions of fact and policy germane

to the subject, and found that oil-wells could be operated in the soil of the ocean without

substantially impairing any of the rights for which said lands are held in trust for the

benefit of the state.” (Id. at p. 193.) In reaching this decision, the court found, among

other things, that evidence in the record was sufficient to establish that the mining

activities authorized by the statute would not substantially interfere with navigation or

fishery. The court also found that the interception of oil, gas and mineral deposits that

could be reduced to useful purposes would be a value to commerce and that gasoline, in

particular, was “so closely allied with state and national welfare as to make its production

a matter of state and national concern” and a clear “ ‘public benefit.’ ” (Id. at p. 181.)

The SLC interprets Boone as establishing a rule that mineral extraction is per se a

public trust use of sovereign lands. We disagree with this interpretation for two

independent reasons. First, the SLC relies exclusively on excerpts from Boone discussing

the commercial and public benefits of oil drilling. (See Boone, supra, 206 Cal. at p. 181.)

Even if that discussion could be construed as a formal holding that oil drilling is a public

use, Boone did not address the fundamentally different activity of sand mining under the

32

San Francisco Bay. Indeed, as the Boone case illustrates, the Legislature views oil and

gas drilling differently from other types of mining activities. (See, e.g., § 6830.1

[legislative finding “that the people of the State of California have a direct and primary

interest in assuring the production of the optimum quantities of oil and gas from lands

owned by the state, and that a minimum of oil and gas be left wasted and unrecovered in

such lands”].)

Second, and in any event, the Boone court did not actually characterize any private

mining activity as a public use of trust property, but instead affirmed a legislative

determination that the highly regulated private mining activities authorized by the

challenged statute did not interfere with the public trust. (Boone, supra, 206 Cal. at

p. 193.) Since no comparable findings were made in this case, the SLC’s heavy reliance

on Boone is misplaced.

The SLC suggests that the Legislature has conclusively determined that sand

mining is a public use of trust property because it has made a “specific finding that the

extraction of minerals is ‘essential’ for the commercial well-being of California.” To

support this argument, the SLC cites section 2711, subdivision (a), which states in full:

“The Legislature hereby finds and declares that the extraction of minerals is essential to

the continued economic well-being of the state and to the needs of the society, and that

the reclamation of mined lands is necessary to prevent or minimize adverse effects on the

environment and to protect the public health and safety.” But, section 2711 is a provision

of the Surface Mining and Reclamation Act of 1975 (§§ 2710, et seq.), a law which does

not regulate mining activities on state lands subject to the public trust. To the extent

legislative findings under that 1975 Act are relevant here, the SLC overlooks the

legislative finding that “the state’s mineral resources are vital, finite, and important

natural resources and the responsible protection and development of these mineral

resources is vital to a sustainable California.” (§ 2711, subd. (f).)

The SLC also fails to acknowledge that the Legislature has addressed the subject

of public lands in a separate division of the Public Resources Code. (§ 6001 et seq.) As

noted above, in this pertinent part of the code, the Legislature has distinguished oil and

33

gas leases from other types of mineral extraction leases, and adopted a specific policy to

promote the state’s interest in oil and gas mining. (§ 6830.1.) Leases for the extraction

of minerals other than oil and gas from tide and submerged lands are governed by section

6900, which authorizes the SLC to grant such leases “when it appears to be in the public

interest” and when “it appears that the execution of such leases and the operations

thereunder will not interfere with the trusts upon which such lands are held or

substantially impair the public rights to navigation and fishing.” Therefore, although the

Legislature has conferred authority on the SLC to approve sand mining leases, it did not

find that sand mining is a public use or an automatically authorized use of trust land.

The SLC also contends that public trust case law supports a broad definition of

“commerce,” which includes activities that have both a private and public benefit.

However the authority it cites only reinforces the distinction between a public trust use

and a private use which is deemed valid because it is does not interfere with the purposes

of the public trust doctrine. (See, e.g., Martin v. Smith (1960) 184 Cal.App.2d 571,

577-578.) The SLC’s authority to approve a private lease of sovereign land for a

commercial purpose which is consistent with the public trust is not in dispute. (Ibid.)

However, we are not convinced by the SLC’s much broader claim that it was “free” to

approve the leases of public trust land in this case without any consideration of the public

trust doctrine because sand mining is intrinsically a public trust use.

Finally, the SLC makes the factual argument that Hanson’s mining operation fits

within the traditional trust uses of navigation and commerce because a tug and barge are

used to reach the mining site, to dredge the sand, and to transport it for commercial

purposes. The SLC maintains that a “more water-dependent and navigational use could

hardly be imagined.” But this factual argument highlights the flawed definition of a

public trust use which runs throughout the SLC’s arguments in this appeal. The trust

doctrine protects and promotes public uses including commerce and navigation. It cannot

justify the private use of public property on the basis that the private party engaged in a

water dependent activity for its own private commercial purpose. Rather such a private

34

use is permissible only if it is consistent with the protections afforded by the public trust

doctrine.

The SLC’s broad concept of a public trust use as encompassing any private

activities that benefit commerce is unsupported by case law and inconsistent with the

guiding principles we discuss above. Therefore, we reject its theory that commercial

sand mining of submerged lands under the San Francisco Bay automatically qualifies as a

public trust use.

2. The Public Trust Doctrine Applies To Mining Leases

The SLC argues in the alternative that “the National Audubon analysis does not

apply” to SLC decisions to authorize mining leases. To support this alternative

argument, the SLC offers the following theory: Because the National Audubon court

analyzed water diversion permits that had the effect of alienating permanently a public

trust resource, that court’s holding that the public trust doctrine imposes affirmative

duties on the state or its trustee applies only in cases which involve a permanent

alienation of a trust resource. Thus, the SLC contends, since mineral extraction is not a

permanent alienation of the trust res (citing Boone, supra, 206 Cal. at p. 182), a mining

lease does not trigger the affirmative trust duties discussed in National Audubon, supra,

33 Cal.4th at page 438.

First, we are not persuaded by the SLC’s factual contention that Bay sand mining

does not deplete a trust resource. Boone, supra, 206 Cal. at page 182 is inapposite, as

that case involved oil drilling as opposed to sand mining. Furthermore, during its CEQA

review of this project, the SLC acknowledged that sand mining does deplete a trust

resource. As discussed in the first part of our opinion, the Final EIR’s assessment of

project impacts on mineral resources examined the potential for the project to interfere

with or prevent access to mineral extraction, but it did not evaluate whether the project

would deplete a mineral resource because SLC staff concluded that sand mining “is

inherently not a sustainable activity; it extracts raw materials from the earth at a rate

greater than the natural processes that created the raw material.” This conclusion was

supported by findings in the Final EIR that the additional 10 years of sand mining in the

35

lease areas would reduce the amount of sand that would be available in the future and

that, for practical purposes, the mined sand was not a renewable resource. While these

findings supported the impacts analysis on mineral resources under CEQA, they appear

to undermine the SLC’s theory that it had no independent duties under the public trust

doctrine.

Second, the SLC’s legal theory that mining leases are exempt from public trust

analysis is not sustainable under the legal authorities cited. Boone does not hold or even

suggest that mineral extraction activities on trust land are exempt from the requirements

of the public trust doctrine. Rather, as discussed above, the record in that case confirmed

that the Legislature fulfilled its affirmative duty to take the trust into account when it

enacted a statute which authorized limited private mining for oil on public trust land.

(Boone, supra, 206 Cal. at p. 193.) Indeed, the National Audubon court described Boone

as “[a]pplying the principles of Illinois Central” to uphold the statute in that case “on the

ground that the [oil] derricks would not substantially interfere with the trust.” (National

Audubon, supra, 33 Cal.4th at p. 439.) Thus, our conclusion that a private use of trust

property triggers affirmative obligations under the trust doctrine is consistent with both

National Audubon and Boone.

Our conclusion is also consistent with the provisions of the Public Resources Code

which confer the SLC’s public trust jurisdiction. (§ 6001 et seq.) The SLC’s jurisdiction

over ungranted submerged lands derives from section 6301, which provides that the SLC

“may lease or otherwise dispose of [trusts] lands, as provided by law.” (§ 6301.) Thus,

the SLC is not exempt from the law, but must comply with the requirements of the

common law trust doctrine when administering trust lands. (See, e.g., Citizens for East

Shore Parks, supra, 202 Cal.App.4th at p. 571 [SLC, “acting on behalf of the state, can

lease tidelands and submerged lands for such uses consistent with the trust”].) The

SLC’s trust obligations are also reflected in statutory provisions regulating the leasing of

public lands. (See, e.g., § 6895 [“whenever the lands for which a lease is sought are tide

and submerged lands, the [SLC] may divide the lands into the size and number of parcels

as the [SLC] determines will not substantially impair the public rights to navigation and

36

fishing or interfere with the trust upon which the lands are held”]; § 6900 [authorizing

mineral extraction leases from tide and submerged lands that are in the public interest

which “will not interfere with the trusts upon which such lands are held or substantially

impair the public rights to navigation and fishing”].)

For all these reasons, we conclude that Hanson’s application for 10-year sand

mining leases on sovereign lands did trigger the SLC’s affirmative duty under National

Audubon, supra, 33 Cal.3d at page 446, “to take the public trust into account . . . and to

protect public trust uses whenever feasible.” (Fn. omitted.)

3. The SLC Failed to Discharge Its Trust Obligations

The SLC maintains it fulfilled its public trust duties by conducting a CEQA

review. To support this contention, it cites two cases: State Water Resources Control Bd.

Cases (2006) 136 Cal.App.4th 674, 776 (State Water); and Citizens for East Shore Parks,

supra, 202 Cal.App.4th 549.

State Water, supra, 136 Cal.App.4th 674 resolved eight appeals and three cross-

appeals in seven coordinated cases arising out of a five-year proceeding before the State

Water Resources Control Board. That litigation concerned the implementation of a 1995

water quality control plan that was the culmination of a 40-year process to solve water

quality problems in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary. (Id.

at p. 687.) Among the countless interrelated issues addressed in the more than 150 pages

of judicial analysis was whether the Water Board violated the public trust doctrine

because the 1995 plan did not (1) resolve all conflicts between public trust values and

competing water values in favor of the trust, or (2) take every feasible measure to protect

the Chinook salmon. (Id. at p. 778.)

The State Water court rejected this public trust challenge as untimely and

unfounded. (State Water, supra, 136 Cal.App.4th at p. 778.) In implementing the 1995

plan, the Board had considered all demands that were being made on the waters of the

Bay-Delta and fulfilled its duties to consider and protect not just fish and wildlife but “all

of the other beneficial uses to be made of water in the Bay-Delta.” (Ibid.) Thus the court

found, in dicta, that, to the extent the Water Board implemented the 1995 plan, it also

37

complied with its public trust obligations. However, to the extent that the Water Board

failed to implement that plan, appellants were entitled to writ relief and the “public trust

doctrine entitle[d] them to nothing more.” (Id. at p. 779.)

State Water is distinguishable from the present case, not just because Baykeeper’s

public trust challenge is timely, but more crucially because, in contrast to State Water, the

record of the SLC’s CEQA proceeding does not affirmatively demonstrate that it

complied with its public trust obligations. Thus, we do not disagree that State Water

supports the SLC’s proposition that “[c]ompliance with other environmental statutes can

serve to fulfill an agency’s trust obligations.” But, State Water does not stand for the

broader proposition that CEQA review of a project involving sovereign property

necessarily satisfies the SLC’s public trust obligations.

In Citizens for East Shore Parks, supra, 202 Cal.App.4th 549, the SLC approved a

30-year lease authorizing Chevron to continue operating a marine terminal on public trust

land adjacent to the company’s oil refinery. After concluding that the lease renewal did

not violate CEQA, the court addressed appellants’ separate challenge under the public

trust doctrine. Appellants conceded that the maintenance and operation of the marine

terminal was “a permissible public trust use,” but argued that before the SLC could

approve the lease renewal, the public trust doctrine additionally required that it consider

other public trust uses of the property and that it impose mitigation measures to reduce to

the extent possible the impacts of the project on those other public trust uses. (Id. at

p. 569.)

The Citizens for East Shore Parks court held that “where the Lands Commission

continued a permissible and long-standing trust use and conducted adequate review under

CEQA, there was no violation of the public trust doctrine.” (Citizens for East Shore

Parks, supra, 202 Cal.App.4th at pp. 569-570.) The court reasoned that the additional

procedural requirements that appellants proposed were not supported by public trust law.

(Id. at pp. 576-577.) To the contrary, the court found, “imposing such procedural

constraints would be inconsistent with the recognition that the state is free to choose

between public trust uses and that selecting one trust use ‘in preference to . . . [an]other

38

cannot reasonably be said to be an abuse of . . . discretion. [Citation]” (Id. at

pp. 576-577.)

The Citizens for East Shore Parks court also opined that requirements imposed by

regulatory schemes like CEQA can often satisfy the state’s obligations under the public

trust doctrine. (Citizens for East Shore Parks, supra, 202 Cal.App.4th at pp. 577-578.)

Reasoning that the trust doctrine and CEQA impose similar obligations, the court found

that the CEQA review process performed in that case “encompassed discussion of other

public trust uses” of the property. (Id. at p. 578.) Thus, the court held that when no

change is being made to a public trust use and there has been compliance with CEQA, the

public trust doctrine does not independently impose an additional impact requirement

mandating the consideration of additional project alternatives and mitigation measures in

connection with those public trust uses. (Ibid.)

In the present case, the SLC characterizes Citizens for East Shore Parks, supra,

202 Cal.App.4th 549 as “unequivocal” authority that the state satisfies the public trust

doctrine by complying with CEQA. We disagree. First, and crucially, there was no

dispute in Citizens for East Shore Parks that the maintenance and operation of the marine

terminal was a public trust use. (Id. at p. 569.) Here, by contrast, the question whether

Hanson’s sand mining operation is a public trust use, or even a trust consistent use, is

hotly disputed. Second, the Citizens for East Shore Parks court rejected an interpretation

of the trust doctrine which necessarily would have imposed specific additional impact

requirements beyond CEQA that could only be satisfied by separate supplemental

analysis. (Id. at pp. 569-570.) Here, by contrast, we address the more basic question

whether the public trust doctrine imposes any obligation to demonstrate affirmatively that

the state has taken the public trust into account when making a decision about the

management and use of trust property, whether in the context of a CEQA review or

otherwise. Indeed, the record in Citizens For East Shore Parks contained affirmative

evidence that the CEQA review encompassed a consideration of the public trust doctrine.

(Id. at p. 578.) Here, by contrast, the record of the CEQA review process does not

address the SLC’s obligations under the public trust doctrine.

39

Disputing this last point, the SLC contends that it did fulfill its affirmative duty to

consider the public trust in a section of the Final EIR which discussed project impacts on

existing land and recreational uses in the area and whether the project was consistent with

applicable land use plans and policies. The record citations that the SLC has provided to

us consist of excerpts from the Final EIR finding that, without mitigation, the project will

conflict with policies in applicable land use plans which require that “sand mining

operations be conducted in an environmentally sound manner, that agencies protect

public trust resources, and that sand mining operations be carried out in a manner that

minimizes interference with critical wildlife activities.” The SLC concluded, however,

that mitigation measures for other impacts of the project “would also reduce conflicts

with applicable land use plans and policies to a less-than-significant level,” and therefore,

no additional mitigation would be required. These record citations do not demonstrate

the SLC fulfilled its public trust obligations during the environmental review process. To

the contrary, the brief acknowledgment of the obligation of other agencies to protect

public trust resources 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.

There may be some activities which unquestionably constitute public trust uses

and, by the same token, there may be activities which are so obviously consistent with the

public trust so as to require only a cursory consideration of the doctrine. However,

private commercial sand mining in the San Francisco Bay does not fall into either of

those categories. The length and breadth of appellate argument about the nature and

effects of this activity belies the claim each party makes that the law is decisively in its

favor. This debate could have been minimized if not avoided had the SLC addressed the

public trust doctrine before approving the project. In any event, on this record we cannot

find that the SLC fulfilled its obligation to conduct a public trust analysis in the CEQA

process. Therefore, a remand for that purpose is required.

40

V.

DISPOSITION

The order denying the petition for writ of mandate is affirmed to the extent it finds

that the Final EIR complies with CEQA. That part of the trial court’s order finding that

the SLC complied with the public trust doctrine is hereby reversed, and the trial court is

directed to grant the writ of mandate to that extent consistent with this opinion.

_________________________

RUVOLO, P. J.

We concur:

_________________________

RIVERA, J.

_________________________

STREETER, J.

41

Trial Court: San Francisco Superior Court

Trial Judge: Hon. Teri L. Jackson

Counsel for Appellant: San Francisco Baykeeper, Inc., George Torgun,

Sejal Choksi-Chugh, Erica Maharg

Environmental Law Foundation,

James R. Wheaton

Counsel for Amicus Curiae Law David R. Owen, Professor of Law and

Professors on Behalf of Appellant: Associate Dean for Research,

University Maine School of Law

Amicus Curiae Law Professors:

Eric Biber, Professor of Law,

University of California , Berkeley

School of Law

Alejandro E. Camacho, Professor of

Law, Director, Center for Land,

Environment, and Natural Resources,

University of California, Irvine

Joseph F.C. DiMento, Professor of Law,

University of California, Irvine

Holly Doremus, James H. House and

Hiram H. Hurd Professor of Environmental

Regulation; Co-Director, Center for Law,

Energy & the Environment; Director,

Environmental Law Program, University of

California, Berkeley School of Law

Tim Duane, Visiting Professor of Law,

University of San Diego School of Law,

Professor of Environmental Studies, University

of California, Santa Cruz

Daniel A. Farber, Sho Sato Professor of Law;

Co-Director, Center for Law, Energy & the

Environment, University of California,

42

Berkeley School of Law

Brian Gray, Professor of Law,

University of California, Hastings

College of Law

Sean B. Hecht, Co-Executive Director,

Emmett Institute on Climate Change and the

Environment, Evan Frankel Professor of Policy

and Practice, UCLA School of Law

Albert C. Lin, Professor of Law, University of

California, Davis School of Law

David R. Owen, Professor of Law and

Associate Dean for Research, University of

Maine School of Law (through June 2015),

Professor of Law, University of California,

Hastings College of Law (beg. July 2015)

Shelley Ross Saxer, Vice Dean and Laure

Sudreau-Rippe Endowed Professor of Law,

Pepperdine Law School

Deborah A. Sivas, Luke W. Cole Professor of

Environmental Law and Director, Environmental

Law Clinic, Stanford Law School

David Takacs, Associate Professor of Law,

University of California, Hastings School

of Law

Jonathan Zasloff, Professor of Law,

UCLA School of Law

43

Counsel for Respondent: Kamala D. Harris

Attorney General of California

John A. Saurenman

Senior Assistant Attorney General

Christiana Tiedemann

Supervising Deputy Attorney General

Joseph C. Rusconi

Deputy Attorney General

Counsel for Amicus Curiae Morrison & Foerster, William M. Sloan

Bay Planning Commission

on Behalf of Respondent:

Counsel for Real Parties in Downey Brand, Christian L. Marsh,

Interest: Arielle O. Harris

A142449, San Francisco Baykeeper, Inc. v. Calif. State Lands Comm.

44