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Case No. S260789
IN THE SUPREME COURT OF CALIFORNIA
______________________________________
REPLY ON PETITION FOR REVIEW______________________________
COMMUNITY VENTURE PARTNERS,
Petitioner and Respondent
vs.
MARIN COUNTY OPEN SPACE DISTRICT,
Defendant and Appellant
_______________________________
After a Decision by the Court of Appeal,
First Appellate District, Division 4 (No. A154867)
Marin County Superior Court Case No. CIV 1701913
Judge: Honorable Paul M. Haakenson
_____________________________
Michael W. Graf (SB No. 136172)
Law Offices
227 Behrens Street
El Cerrito, California 94530
Tel: (510) 525-1208
Counsel for Petitioner/Respondent Community Venture Partners
TABLE OF CONTENTS
Page
I. SUMMARY OF REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. THE DISTRICT’S ACTIONS ARE FALSELY PRESENTED AS COMMENDABLE
BY THE DISTRICT’S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III. ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. THE ISSUE OF HOW TO CONSIDER SOCIAL EFFECTS REMAINS
OBTUSE AND INCONSISTENT BETWEEN THE CEQA GUIDELINES
AND APPLICABLE CASE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. The District’s Cases on Social and Recreational Effects Illustrate the
Need for Supreme Court Review... . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. SUPREME COURT GUIDANCE IS NEEDED TO CLARIFY HOW AN
AGENCY DECIDES A SECOND TIER PROJECT FALLS WITHIN THE
SCOPE OF A PRIOR PROGRAM EIR.. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATION OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2
TABLE OF AUTHORITIES Page
Cases
Baldwin v. City of Los Angeles
(1999) 70 Cal.App.4th 819. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 20
Center for Sierra Nevada Conservation v. County of El Dorado
(2012) 202 Cal.App.4th 1156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16
Chico Advocates for a Responsible Economy v. City of Chico
(2019) 40 Cal.App.5th 839. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Citizens for a Megaplex-Free Alameda v. City of Alameda
(2007) 149 Cal.App.4th 91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Cleveland National Forest Foundation v. San Diego Assn. of Governments
(2017) 17 Cal. App. 5th 413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Committee for Green Foothills v. Santa Clara County Bd. of Supervisors
(2010) 48 Cal.4th 32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Friends of College of San Mateo Gardens v. San Mateo County Community College Dist.
(2016) 1 Cal. 5th 937. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 17, 19
Latinos Unidos de Napa v. City of Napa (“Latinos Unidos”)
(2013) 221 Cal.App.4th 192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Lighthouse Field Beach Rescue v. City of Santa Cruz
(2005) 131 Cal. App. 4th 1170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
National Parks & Conservation Assn v. County of Riverside
(1999) 71 Cal. App. 4th 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Preserve Poway v. City of Poway
(2016) 245 Cal. App. 4th 560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Save Our Heritage Organization v. City of San Diego
(2018) 28 Cal. App. 5th 656. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sierra Club v. County of San Diego
(2014) 231 Cal.App.4th 1152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3
Sierra Club v. County of Sonoma
(1992) 6 Cal.App.4th 1307. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Statutes
Pub. Res. Code
§ 21002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
§ 21093. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,16,20
§ 21094 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,16,20
§ 21166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8, 16-18
Regulations
14 Cal. Code Regs. (“CEQA Guidelines”)
§ 15064(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 15064(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 15131(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 15152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20
§ 15162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16, 20
§ 15168(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§ 15168(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
§ 15360. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 15384(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 15384(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Federal Cases
Bicycle Trails Council of Marin v. Babbitt
(N.D. Cal. 1994) affd. (9th Cir. 1996) 82 F.3d 1445. . . . . . . . . . . . . . . . . . . . . . . 15
4
I. SUMMARY OF REPLY
Marin County Open Space District’s Answering Brief ("DAB”) argues
the Court of Appeals applied a clear and well defined body of law on the two
issues for which Petitioner seeks review. This is a predictable argument,
which does not mean, however, the law on these issues is near settled or clear.
On the issue of considering social effects, the District claims the law is
clear because the social impacts to existing hikers and equestrians due to the
physical changes to the Middagh Trail (including introducing mountain bikes)
are not caused by physical changes to the environment. This is factually
incorrect, as presented in Petitioner’s Petition for Review (“PFR”) at pages 17-
18, 33-38. The Court of Appeals’ failure to consider the evidence that social
effects were caused by changes to the environment can be directly traced to the
confusing and unanalyzed law on this topic, including decisions that have
inconsistently applied the cryptic language of the CEQA Guidelines.
The issue of social effects in this case is central to both issues for which
Petitioner seeks review. Here, the Road and Trail Management Plan
(“RTMP”) program EIR states that “[b]ecause the safety of users of the road
and trail system is a social effect...it is not within the purview of CEQA.” See
AR 59 2241 (emphasis added.) Despite this, the District found that the
Middagh Trail project could tier to the RTMP EIR, even though the Middagh
5
project would cause both physical and social impacts to existing users. If
social effects are required to be considered as a consequence of physical
changes to the trail environment caused by a project, the District cannot tier
that project’s CEQA review to a program EIR that rejected the concept of even
considering such effects.
On this second issue involving tiering, no case, including Friends of
College of San Mateo Gardens v. San Mateo County Community College Dist.
(“San Mateo Gardens”) (2016) 1 Cal. 5th 937, has analyzed the proper
standard for reviewing an agency’s determination that a later project falls
“within the scope” of a prior program EIR and thus may utilize Public
Resources Code Section 21166 (“Section 21166") and 14 Cal. Code Regs.
(hereinafter “CEQA Guidelines”) § 15162 to evaluate whether a second tier
project requires more specific CEQA review than in the prior program EIR.
The District’s argues San Mateo Gardens clarifies the proper standard,
see DAB, p. 22, but this is untrue. San Mateo Gardens addresses a ‘changed’
project, not a tiered project. Here, the challenged action is a second-tier
project that implements policies of the RTMP literally at the ground level.
San Mateo Gardens also discusses what is required for a tiering
analysis, 1 Cal. 5th at 960, which did not occur here and will not occur in
future cases that will instead follow the District’s erroneous instincts to shove
6
future projects into the ‘scope’ – however that is defined - of the program EIR.
The Court of Appeals decision follows more closely cases such as
Latinos Unidos de Napa v. City of Napa (“Latinos Unidos”) (2013) 221
Cal.App.4th 192, 196, 201-202, which interprets the “within the scope”
language as dependent on whether Section 21166 criteria are met, i.e., whether
there are substantial changes, or new information, warranting CEQA review.
The Section 21166 / CEQA Guideline § 15162 criteria are designed for
use once the agency has decided that the second tier project is ‘within the
scope’ of the program EIR. See CEQA Guidelines § 15168(c)(2). However,
the Guidelines are not clear what it means for a project to be within the scope
of a prior program EIR. For example, CEQA Guidelines § 15168(c)(1)
requires an initial study for a second tier project that would “have effects that
were not examined in the program EIR.” No court decision has addressed if
this is the standard for ‘within the scope’ language as well. Meanwhile, the
‘within the scope’ standard has morphed toward the more restrictive criteria
for changed projects under Section 21166 and CEQA Guideline § 15162.
Case law does not adequately distinguish between decisions involving
changes to a project and those involving tiering a later project to a program
EIR. In the former, Section 21166 criteria are appropriate given the interest
in finality for CEQA project review, but in the latter such an interest in finality
7
is inappropriate as it conflicts with CEQA’s endorsement of tiering as a way
to focus environmental review at the proper level of scrutiny for each
successive tiered project implemented under the umbrella of the program EIR.
These second and third-tier projects may figuratively fall ‘within the scope’ of
the initial ‘program,’ but that does not mean that further CEQA review is not
required at the site-specific level based on CEQA’ tiering procedures.
The District’s brief falsely characterizes Petitioner as claiming that all
social effects must always be considered, or as failing to acknowledge the
difference between the Section 21166 and Section 21093-21094 criteria for
whether further environmental review is required. This is not true. This case
demonstrates how ambiguity in the law, and how appellate courts’
inconsistency in applying this law, led the Court in this instance to getting it
wrong, thereby condoning the District’s behavior in forcing a major change in
trail use onto decades-long existing users without considering the adverse
effects that may occur. Allowing this decision to stand would give an
unlimited green light to the District and other agencies throughout the state to
make highly impactful decisions without consideration of enforceable
mitigation and/or alternatives that would avoid significant impacts to
recreational users throughout California. At the least, the law should be clear
on how agencies can proceed in these situations to avoid future legal conflicts.
8
II. THE DISTRICT’S ACTIONS ARE FALSELY PRESENTED AS
COMMENDABLE BY THE DISTRICT’S BRIEF.
The District portrays its actions as consistent with CEQA and
accountable local government, the fulfillment of the wishes of the vast
majority of the District’s constituents. None of this is remotely true.
The history of the Middagh Trail project began shortly after the
District’s enactment of the RTMP, when the District invited proposals to be
identified and scored by the District as it considered future projects. Under the
RTMP, all qualifying projects were to be scored for eligibility. However, out
of a number of proposals, including several eligible projects from local groups
to do restoration and rehabilitation in the Alto Bowl Preserve without adding
bikes, the District only scored the proposal submitted by the Marin County
Bicycle Coalition (“MCBC”) to change the trail design and use in the Preserve
so as to accommodate mountain biking. The trial court and the Court of
Appeal found the District’s actions in predetermining which project would be
chosen to be contrary to the procedures required by the RTMP and thus an
abuse of discretion. See Slip. Op., pp. 30-32.
After having violated its own RTMP by pre-selecting the MCBC
proposal as the project to be implemented in the Alto Bowl Preserve, the
District then engineered a ‘process’ whereby the project to change the
Middagh Trail to mountain biking was presented to the public as a fait a
9
compli, with ready-made findings that the project would not cause any
significant environmental impacts. Even after receiving numerous objections
from local users – including a petition with over 1,000 signatures opposing the
proposal to allow mountain biking on the trail – the District announced on1
November 29, 2016 that the project had been ‘approved’ based on its
conclusions that significant impacts would be avoided. All of this was done
without any CEQA review whatsoever. See PFR, pp. 26-29. The trial court
held that the District had improperly approved the Project prior to completing
CEQA review, citing Save Tara v. City of West Hollywood (“Save Tara”)
(2008) 45 Cal. 4th 116, 130-131, 139. See 4 CT 725-730. The Court of Appeal
reversed by interpreting the District’s announcements that it had ‘approved’
the Project as simply initial endorsements for the Project. Slip Op., pp. 12-14. 2
The District from early on decided to open the Alto Bowl Preserve and
Middagh Trail to mountain biking without considering impacts on the existing
users of the Preserve. These citizens testified about the likelihood of
The District’s argument that the Project was supported by over 80% of the1
public is based on its own self-serving announcement that it had approved the
Project. The figure is contradicted by public comments and by the petition of
over 1,000 persons opposing the change of use, which was submitted to the
District in 2015 and 2016. AR 252 4729-4840.
Because the Court’s ruling is based on a misinterpretation of what the District2
actually did in this case i.e., approved the Project on November 29, 2016,
rather than a misstatement of the applicable law under Save Tara, Petitioner
has not chosen to seek review on this issue.
10
foreseeable accidents and eventual user displacement – testimony supported
by official incident reports submitted into the record (see PFR, pp. 33-38) – as
a result of the physical changes that were ignored by the District in an
unaccountable process contrary to CEQA principles that an agency consider
enforceable mitigation or feasible alternatives to avoid significant impacts.
Pub. Res. Code § 21002.
Against the backdrop of this breakdown in civic accountability, the
District’s legal positions that 1) social effects caused by the physical effects of
the change in trail use need not be evaluated; and 2) future trail projects on
District lands will be considered to be ‘within the scope’ of the RTMP EIR and
thus exempt from site-specific review, deserve review from this Court.
III. ARGUMENT
A. THE ISSUE OF HOW TO CONSIDER SOCIAL EFFECTS
REMAINS OBTUSE AND INCONSISTENT BETWEEN THE
CEQA GUIDELINES AND APPLICABLE CASE LAW.
On social effects, the District argues that “Petitioner’s wish that the law
said something different is not a basis for this Court’s review.” See DAB, p.
23. However, the law does say something different than what is stated in the
Court of Appeals’ opinion, namely that social impacts that are caused by
physical changes to the environment must be considered in CEQA review.
CEQA Guidelines § 15064(e), § 15131(b). In this case, the Court of Appeal
11
did not consider the social impacts to existing trail users based on the physical
changes to their environment, which includes natural and man-made
conditions. See CEQA Guidelines § 15360. Otherwise, there could never be
CEQA impacts to such resources as aesthetics or recreational use and values.
Here, trails constitute manmade conditions that are part of the environment.
The addition of bicycle traffic to this man-made environment is a physical
change. See CEQA Guidelines § 15064(d)(1).
In sum, it is the District who argues for law that is inconsistent with
CEQA and its Guidelines, a reason perhaps why the Court of Appeal did not
publish its opinion despite two requests and despite the opinion addressing
factual and legal issues without precedent in California law.
1. The District’s Cases on Social and Recreational Effects
Illustrate the Need for Supreme Court Review.
The District argues the case law is clear based on three decisions
finding that social effects need not be considered, and two recreational impact
case that the District claims are distinguishable. See DAB, pp. 23-27.
The first three cases each hold that the social effects of a project need
not be considered. None of the decisions address how adverse social effects
should be analyzed where they are the product of physical changes. Instead,
Preserve Poway v. City of Poway (2016) 245 Cal. App. 4th 560, 575
considered the social effects to the community due to the replacement of a
12
horse facility with housing as not related to physical changes, but rather as a
social effect, specifically the “loss of community character.” See id. at 565.
Similarly, Chico Advocates for a Responsible Economy v. City of Chico
(2019) 40 Cal.App.5th 839, 867-868 held that “the loss of close and
convenient shopping,” was not a physical component of ‘urban decay.’
Finally, Lighthouse Field Beach Rescue v. City of Santa Cruz (2005)
131 Cal. App. 4th 1170, 1206, held that recreational users disagreeing over the
propriety of the dogs on the beach was not an environmental effect.
Lighthouse Field Beach Rescue does not discuss any environmental effect, nor
is the case on point given the environmental setting in Lighthouse Field Beach
Rescue already included off-leash dogs in the park, an existing environmental
impact proposed to be improved through firm limits on where dogs could go.
In contrast, here, mountain bike riding has not been allowed. The apt
parallel would be a project to introduce off-leash dogs into a sensitive area
where dogs were not allowed. Lighthouse Field Beach Rescue does not
address this different situation regarding the environmental setting/baseline.
At best, these cases correctly state the law that social effects cannot
constitute CEQA significant impacts where they are not caused by changes to
the environment, yet fail to provide any analysis for how social effects should
be considered when they are caused by the environmental changes.
13
Meanwhile, the recreation cases are unsupportive of the argument that
social effects need not be considered and they support Petitioner’s argument.
The District tries to distinguish National Parks & Conservation Assn
v. County of Riverside (1999) 71 Cal. App. 4th 1341, by arguing that the
alleged recreational impact in that case “was directly caused by a physical
effect of the project—i.e., the physical construction of a landfill nearby.”
DAB, p. 26. Here, however, social effects are caused by the physical changes3
to the Middagh Trail, including introduction of bike traffic. Not a distinction.
Similarly, the District argues that Baldwin v. City of Los Angeles (1999)
70 Cal.App.4th 819 “concerned a proposal to completely eliminate two acres
historically used for public recreation to build a housing project” and thus “the
‘recreation impact’ on people” was “caused by a physical change; i.e., the
elimination of two acres of recreation space.” DAB, pp. 26-27.
This distinction is also untenable. Here, rather than eliminate the
recreational resource, the District has substantially modified it through the
physical introduction of bikes into a setting of horses and hikers.
The District’s arguments highlight the lack of clear case law direction
National Parks held impacts to the ‘wilderness experience’ from an adjacent3
landfill were “appropriately analyzed under CEQA,” which the County did in
an EIR and statement of overriding considerations justifying “impacts upon the
wilderness experience component.” Id. at 1359 (emphases added).
14
for how to assess social effects. Here, there is no question that the social
effects to Middagh Trail users are caused by the physical changes to the trail.
In this respect, the District does not even bother responding to Petitioner’s
points that the introduction of mountain bike traffic into an existing trail
environment represents a change to the man-made environmental conditions,
which must be considered in CEQA review. PFR, pp. 17-18. 4
The District concludes by raising its most egregious strawman
argument, that Petitioner is claiming “the sheer scale of the subjective
psychological opposition to the project” requires CEQA review, which the
District frames as “simply a disagreement with CEQA itself.” DAB, p. 28.
This is wrong. The sheer scale of the incident reports and citizen opposition
to the Project based on their own trail experiences, see PFR, pp. 26, 31-35,
The District defends the Court of Appeals’ reliance on Bicycle Trails Council4
of Marin v. Babbitt (N.D. Cal. 1994) affd. (9th Cir. 1996) 82 F.3d 1445, see
DAB, p. 27, n. 8, arguing that it cited by Petitioner in the appeal and is
persuasive authority based on the National Environmental Policy Act
(“NEPA”). These points fail. First, Petitioner did not cite the case as legal
authority but rather as evidence showing the potential for impacts to the non-
bike users caused by bikes on trails in Marin County. See Respondent’s
Opposition Brief on appeal, p. 32 (showing “‘[a]mple evidence...that bicycle
access to all trails increases incidents of user conflict and compromises visitor
safety.’ AR 547 5886.”) Second, NEPA does not recognize social effects as
does CEQA and so cannot be ‘persuasive authority.’ The relevance of the
decision to this Court’s review is as a point of concern highlighting the lack
of guidance the Court of Appeal experienced regarding the factual and legal
issues presented by this case.
15
Notes 4, 7-9, constitutes substantial evidence that must be addressed. CEQA
Guidelines §§ 15384 (a)-(b). That is what CEQA requires, but which the case
law has muddled in the absence of this Court’s guidance.
B. SUPREME COURT GUIDANCE IS NEEDED TO CLARIFY
HOW AN AGENCY DECIDES A SECOND TIER PROJECT
FALLS WITHIN THE SCOPE OF A PRIOR PROGRAM EIR.
No case decision has analyzed the proper standard for reviewing
whether an agency has proceeded lawfully in deciding whether a second tier
project is ‘within the scope’ of the prior program EIR and thus requires no
further CEQA review pursuant to CEQA Guidelines § 15168(c)(2). This
determination is critical, as it allows an agency to proceed under Section 21166
and CEQA Guidelines § 15162 instead of Sections 21093-21094 and CEQA
Guidelines § 15152 in deciding whether a second-tier project requires review.
The District argues this issue was settled by San Mateo Gardens. See
DAB, p. 17. However, San Mateo Gardens addressed changes to a project, not
a later project tiering to a program EIR. See 1 Cal. 5th at 944. Indeed, San
Mateo Gardens distinguished its facts from cases involving prior program
EIRs. Id. at 960 (standard for whether to engage in additional CEQA review
under a tiered EIR is “more relaxed than the prohibition against additional
review imposed by Public Resources Code section 21166 for project EIR's.”)
San Mateo Gardens leaves open the question of how a court should
16
review an agency’s decision not to utilize CEQA tiering for second tier
projects implemented under the authority of a prior program EIR. Here, when
it came to the agency’s ‘decision’ how to proceed, San Mateo Gardens did not
defer to the agency’s choice of CEQA review, but instead simply identified as
a matter of law that “the 2006 initial study and MND were not a tiered EIR.”
Id. at 960 (emphasis added.) Other cases have similarly not deferred to and
instead overruled agencies skipping a tiering analysis and instead relying on
the ‘changed project’ criteria. See e.g., Center for Sierra Nevada Conservation
v. County of El Dorado (2012) 202 Cal.App.4th 1156, 1173-1174 (court
rejects agency’s review of impacts under Section 21166 and instead evaluates
project as tiered); Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th
1307, 1320-1321 (court finds proposed mining not within the scope of the
prior program EIR without reference to Section 21166 criteria.)5
The District argues case law is clear on this issue but most of its cases
involve not tiering situations but rather ‘changes’ to existing projects. 6
In Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, the5
court declined to rule on the issue. Id. at 1174.
The following cases cited by the District each involve changed projects rather6
than tiered projects: San Mateo Gardens, supra, 1 Cal. 5th at 949; Committee
for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation
Agency (2016) 6 Cal.App.5th 1237, 1247; Citizens Against Airport Pollution
v. City of San Jose (2014) 227 Cal.App.4th 788, 801-802.
17
In contrast, two decisions cited by the District, Latinos Unidos, supra,
221 Cal.App.4th 192, 196, 201-202 and Cleveland National Forest
Foundation v. San Diego Assn. of Governments (2017) 17 Cal. App. 5th 413,
426 do involve program EIRs and tiering, yet apply the Section 21166 criteria7
as if discussing a ‘changed’ project. The reasoning of these decisions are what
was followed by the Court of Appeals in this case.8
The changed project situation is appropriate for the Section 21166
criteria of ‘new circumstances’ or ‘new information’ to see if further review
is required but not if the question is rather whether a second tier project is
within the scope of a prior program EIR and thus may forgo the tiering
process. The ‘within the scope’ determination is not the same as a ‘change’
to a prior project where CEQA review has already occurred and the public
policy interest in “finality” of CEQA review may take precedence over the
Petitioner inaccurately cited to the prior version of this decision issued before7
Supreme Court review in Cleveland National Forest Foundation v. San Diego
Assn. of Governments (2017) 3 Cal. 5th 497. However, the language of the
correctly cited decision is identical to the prior decision with respect to CEQA
tiering and thus presents the same problem in terms of precedent on this issue.
A third decision, Committee for Green Foothills v. Santa Clara County Bd.8
of Supervisors (2010) 48 Cal.4th 32, appears to apply the Section 21166
criteria to whether a project falls ‘within the scope’ of a prior program EIR,
but ultimately found it “need not decide whether the County's determination
was proper” due to the statute of limitations having run. Id. at 55. In support,
this Court cited Citizens for a Megaplex-Free Alameda v. City of Alameda
(2007) 149 Cal.App.4th 91, which, however, is not a tiering case, but rather
also one involving a changed project. Id. at 103.
18
potential for new environmental impacts to occur. See San Mateo Gardens,
supra, 1 Cal. 5th at 949 (describing CEQA’ interest “in finality and
efficiency.”); Save Our Heritage Organization v. City of San Diego (2018) 28
Cal. App. 5th 656, 668 (“Once an EIR has been certified, ‘the interests of
finality are favored...”)
In contrast, such considerations of ‘finality’ are inappropriate when
dealing with a CEQA tiering situation where a program EIR purposefully
defers CEQA review to later projects corresponding to site-specific impacts
that will inevitably arise as the RTMP is implemented. See AR 59 2734 (“No
individual road or trail actions are identified or programmed in the RTMP.”)
Here, there is no ‘interest in finality’ for tiered projects. “[T]iering is
appropriate when it helps a public agency to focus upon the issues ripe for
decision at each level of environmental review." Koster v. County of San
Joaquin (1996) 47 Cal. App. 4th 29, 38. An issue ‘ripe’ for review at the
programmatic stage will not be the same issue ripe for review at the project-
specific change. The RTMP has general guidelines as to trail protection and
use management but that does not mean the specific site-specific impacts in a
potentially sensitive area of changing or relocating a trail use would have been
adequately considered in the prior program EIR.
Review is warranted here because there is a lack of authority for how
19
an agency determines a second tier project falls ‘within the scope’ of a prior
program EIR. This CEQA context does not support finality of review, but
rather the different question of whether the subsequent second-tier review
requires a more site-specific CEQA analysis, not because of project changes
or new information, see CEQA Guidelines § 15162, but because these issues
are now ripe for review. Here, the words ‘within the scope’ must be
interpreted consistently with CEQA’s intent to promote tiering through the
completion of program EIRs for large scale planning matters, with the
assumption that subsequent specific projects will be addressed in later tiered
project EIRs. See Pub. Res. Code §§ 21093-21094; CEQA Guidelines§ 15152.
Under these provisions, where a later project raises site-specific issues not
directly addressed in the prior program EIR, further CEQA review is required.
In the absence of controlling authority on the topic, the Court of Appeal
tried to craft a standard from the Remy, et al., Guide to CEQA 11th Ed., see
Slip Op. p. 19, but, lacking clarifying law, failed to assess whether the program
EIR discussed the site-specific impacts of the later Middagh Trail project.
IV. CONCLUSION
The Court of Appeals decided that the social effects of a major use
change to the Middagh Trail need not be addressed under CEQA. This ruling
was critical to the Court’s finding the Middagh Trail project to be within the
20
scope of, and thus tierable without further CEQA review to, the RTMP EIR,
a programmatic review which also did not consider social effects, This result,
inevitably to be followed by the District and other agencies in California, is
contrary to CEQA and should be reviewed by this Court.
DATED: April 2, 2020
By: /s/ Michael W. Graf
Michael W. Graf
Attorney for Petitioner
21
CERTIFICATION OF WORD COUNT(Cal Rules of Court, Rule 14(c)(1))
The text of Petitioner’s Reply on Petition for Review consists of 4,042
words, as counted by the Corel Word Perfect word processing program used
to generate this brief.
DATED: April 2, 2020
By: /s/ Michael W. Graf
Michael W. Graf
Attorney for Petitioner
22
PROOF OF SERVICE
I am employed in the County of Contra Costa, State of California. I am overthe age of 18 and not a party to the within action; my business address is 227 BehrensStreet, El Cerrito California, 94530. I caused the attached:
PETITIONER’S REPLY ON PETITION FOR REVIEW
to be served as follows:
x By Regular Mail On this date written below, at El Cerrito, California, Iplaced a true copy of the above written document in a sealed envelope(s) andplaced it for collection and mailing, addressed as follows.
Marin County Superior CourtP.O. Box 4988San Rafael, California 94913
1st District Court of Appeal350 McAllister StreetSan Francisco, CA 94102
I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct, and that this declaration is executed this April 2, 2020,in Contra Costa County, California.
By: /s/ Michael W. Graf
Michael W. Graf
Attorney for Plaintiff /Respondent
SC05 - Reply on Petition for Review.wpd
23PROOF OF SERVICE; Case No. Civ. 170191323