HomeMy WebLinkAboutM AND T GRAVEL MINE APPLICATION MIN 96-03COUNTY r' . •
ELLMAN BURKE HOFFMAN & JOHNSON '}�i
- A P R O F E S "S 1 O N A L- L AW C. O R P O R A T 1 ON . APR 1 7 i �2V07
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April 9, 2007
VIA FEDERAL EXPRESS
Chairman and Members of the Board
Board of Supervisors, County of Butte
25 County Center Drive
Oroville CA 95965 `'
Re: M&T Ranch Gravel" Mine: Application MIN 96-03 '
Appeal of Planning Commission Decision to Certify Environmental Impact '
Report, Make Findings of Overriding Considerations and Issue Permit For
Gravel' Mine
Dear Chairman and Board Members:
We file this letter on behalf of Parrott Investment Company. ("Parrott" ), owner of Llano
Seco Ranch (,"Llano Seco"), a property. lying immediately to the south of the proposed gravel
mine. Parrott appealed all of the actions taken by the Planning Commission (the "Commission'
to certify the environmental impact report ("EIR") and issue the conditional use permit for the
mine.
Parrott also filed several letters of protest and appeared before the Commission to
challenge the adequacy of the EIR, the process by which it was prepared, its content and the
appropriateness of approving a permit for a gravel mine- in the subject location, among other
issues.. In addition' to• the issues it raised before the Commission, Parrott appeals'the:substance of
the action taken by the Commission in the form of the approval resolutions, the adequacy and
completeness of its findings, its rejection of the environmentally superior "no project" and
"reduced project" alternatives and other aspects of the approval process that violate the law. All
of these issues — these defects of both substance and procedure —remain in this record and
Parrott reiterates all of them before you, based on its protest letters in the file.
NAP\PARRI\GM\Letters\Protest letter 02-27-07
ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E S S I O N A L L A W C O R P O R "A T I O N
April 9, 2007
Page 2
The issues that Parrott and other protesters have raised fall roughly into three categories:
(i) neither the Commission nor this Board can make the finding required under the.Butte County
Code for issuance of the permit for this gravel mine on the current record; (ii) the final
environmental impact report ("FEIR") that the Commission certified is legally deficient in many
critical particulars, should not have been certified, and the County lacks the legal power to
approve the permit without a properly certified EIR; and (iii) the certification findings are legally
deficient and not supported by substantial evidence, a defect particularly telling in connection
with the rejection of alternatives that are environmentally superior to the proposed project..
A. The Permit Cannot Be Issued Without a Finding That The Proposed Gravel Mine
Is Compatible With Its Surroundings, A Finding That The Record Before You
And The Facts Of This Case Do Not Support.
Section 24-45.10 of the Butte County Code establishes the criteria that control your
determination and that should have' controlled the determination made by. the Commission:
"The planning commission, on the basis of the evidence submitted at the hearing, may
grant use permits required by the provisions of this chapter when it finds that the proposed uses
of the property will not impair the integrity and character of the zone in which the land lies and
that the use would not be unreasonably incompatible with; or injurious to, surrounding
properties or detrimental to the health and general welfare of the persons residing or working in
the neighborhood..." (Emphasis added).
Given "the integrity and character of the•zone in which the land lies," wholly apart'from
the other issues we have raised, .we submit that the Commission could not -- and on this appeal
you cannot -- lawfully make the finding required to comply with that Section.
The "integrity and character of the zone" is agriculture and conservation, with unique
conservation values. "Compatible" is defined in the Merriam Webster OnLine Dictionary as
"capable of existing in harmony." Disharmony would be a more appropriate term in -this case,
NAPTARRRGM\Letters\Protest letter 02-27-07
ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E S S 1 O N A L L A W C O R P O K A T I O N
April 9, 2007
Page 3
as. a better description of a heavy industrial extractive use in' a location characterized by
conservation values.
The determination that this appeal requires you to make turns on the land,use and
environmental setting into which the applicant proposes to introduce its mine. There is nothing
inherently "wrong" or "immoral" about a gravel mine, just as there is nothing inherently
"wrong" or "immoral" about an oil well, a landfill or a hog slaughterhouse. None of these uses,
however, can be considered "compatible," "in harmony" with or consistent with "the integrity
and character of the zone" if that zone happens to be a wilderness area, for example, or a
wetland, or a scenic corridor — or if the proposed location abuts a cemetery, or a school or a
hospital.
Despite the legal requirement that it provide a full, fair and accurate summary of the
relevant environmental information that pertains to the proposed project, the PEIR prepared to
support the gravel mine application is remarkably devoid of the information you need consider
the permit within its environmental context. For example, you will find none of the following in
the FEIR, let alone an explanation of why these critical facts should not be considered by you as
part of the determination you must make if you are to approve the permit:
(i) The western and southwestern portions of Butte County include some of the
richest and most environmentally diverse landscapes remaining in California. Among other
things, the County includes most of the lands included in the State's program to create the
"Sacramento Conservation Zone." That legislation is the State's most ambitious plan to protect a
priceless combination of oak woodland, riparian forest, natural wetlands and native, undulating
grazing land, a combination that has virtually disappeared from California. Llano Seco
(comprising approximately 20,000 acres) is the centerpiece of this plan, as it includes a mosaic
of all of the rare habitat types in a unique combination and structure. Llano Seco includes a
broad array of the State's most endangered species, and has been the wintering ground, at times,
for as much as a quarter of all the waterfowl in the State.
NAMPARRRGM\Letters\Protest letter 02-27-07
EumAN BURKE HOFFMAN & JOHNSON
A P R O F E S S 1 O N A L L A W C O R P O R A T 1 O N
April 9, 2007'
Page 4
The proposed gravel mine would be situated, in the middle of these unique
environmental assets. The record includes a graphic we submitted to the Commission, a graphic
that shows the location of the gravel mine in the larger environmental context. Placing a gravel
mine in such a location is comparable to placing a landfill in a designated wilderness area. It is
totally out of keeping with the "integrity and character of the zone in which the land lies"
(Section 24.24.10, Butte County Code). It will blight one of the State's unique environmental
assets for future generations.
What do you get in exchange for such a high price? Slightly cheaper roads (with
no assurance of such benefit), an ephemeral, short term increase in County revenues (that could
well be swamped by the cost of fixing the roads that the gravel trucks will decimate) — and the
possibility (but again with no assurance) of modest job creation. In short, you compromise a
priceless ..asset; burdening citizens and property owners for nothing of lasting value.
(ii) The environmental diversity and aesthetic richness of the area has catalyzed an
effort to create public recreation areas and areas to be preserved for conservation and
environmental ends. Federal, State, County and non-governmental agencies have spent millions
of dollars in these efforts. The areas thus created attract regular use by a large and growing
number of County residents as well as other citizens.
Within less than ten miles of the mine site, non-profit or governmental entities have
acquired more than 50 parcels of varying size — through outright acquisition or conservation
easement — to preserve and enhance uniquely valuable wildlife and habitat attributes.
Governmental entities and non-profit organizations have spent tens of millions of dollars and
intense effort in these endeavors over a period of at least two decades and have produced
impressive results. The people who use these areas do so to enjoy the natural beauty, the
environmental diversity and the "pastoral" peace and quiet. We submitted an exhibit to the
Commission (part of this record) that illustrates the proximity of those preserved areas to the
mine site and highlights .the potential conflict.
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ELLMAN BURKE HOFFMAN & JOHNSON
A. P R O F E S S 1 O N A L L A W C O R P O R A T I ON
April 9, 2007
Page 5
The mine will bring noise, dust, truck traffic — all the byproducts of a high
intensity industrial use — to an area being preserved for values that represent the very antithesis
of such a use, while the use itself creates a moonscape of the property on which it is located.
(iii) If approved, the mine will establish a heavy industrial use within one and one-half
miles of the Sacramento River riparian. corridor which has been the object of intense preservation
and restoration efforts. .
At Llano Seco, for example, more than ten thousand acres have'been placed under
easement or sold outright to state and federal agencies for wildlife habitat. That series of
transactions took place in 1991, resulting in major restoration work to create seasonal wetland
for wintering waterfowl, riparian oak forest and native grasslands. The success of these efforts
can be gauged in part by the fact that when the U.S. Fish & Wildlife Service conducts its annual
winter counts during the first week in December, that agency generally finds that Llano Seco is
holding from 10% to 25% of all the wintering waterfowl in the State.'
(iv) If approved, the gravel mine will be located in a flood plain — an area subject to
serious and regular flooding — and will penetrate an unconfined aquifer that has close hydrologic
contiguity with the Sacramento River. The aquifer penetration will provide a direct pathway for
the introduction of contaminants into groundwater that flows rapidly toward the River,
immediately to the west. Both federal and state fisheries agencies have identified gravel mines
The FEIR originally and erroneously — described Llano Seco as being used for orchard and grazing, totally
disregarding its dedication to wildlife and habitat uses in transactions consummated in 1991, long before the gravel
mine application was filed. The Staff attempted to rectify this error by introducing an "errata" to the FEIR in
January, 2007, more than 3 years after the FEIR was supposedly complete and the hearings on this matter
concluded. This so-called "errata" adds significant new information concerning the environmental setting that
requires recirculation of the FEIR pursuant to Pub.Res.Code § 21092.1; Guidelines § 15088.5.. Save Our
-PeninsulaAssoc. V. Monterey Board OJSupervisors (2001) 87 CA4th 99; Sutter Sensible Planning v. Board Of
Supervisors (1981) 122 CAM 813. You cannot lawfully proceed until that recirculation process is concluded.
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EUMAN BURKE HOFFMAN & JOHNSON.
A P R O F E S S 1 O N A L L A W C O R P O R A T 1 O N
April 9, 2007
Page 6
in similar locations as a principal cause of the decline of protected salmon and steelhead
populations.2
The mine proponents argue that gravel mines are allowed under the General Plan
and permitted as a conditional use under the County Zoning Ordinance, thus establishing the
compatibility of such uses within the zone. The, General Plan, however, is out of date and was
adopted prior to a number of the events and developments we have detailed, such as, for
example, commitment of most of Llano Seco to conservation and habitat uses.
Moreover, if the General Plan were enough — in and of itself— to establish the
appropriateness of a use, why is a use permit required? It is required precisely for the purpose
of bringing a sharp focus on the determination of harmony and compatibility that the Code
requires, in recognition of.the fact that those determinations cannot properly be made at the
General Plan level. The judgment and assessment such a determination requires depends upon
the specifics of the application itself— because its true impact cannot be judged until the
application is before you.
In this. case, that time is now and the issue invokes you informed discretion that
includes the power to reject the application on the grounds stated in your own Code..
B. The EIR is Inadequate and Fails to Meet the Standards Required by Law.
The Supreme Court has clearly stated the purpose of an EIR in several cases, including
Laurel Heights Improvement Association v. Regents of University of California (1993) 6 Ca1.4th
1112, 1123:
Z Mine sediments have been identified by the Fish & Wildlife Service and the National Oceanic and Atmospheric
Administration Fisheries Services (formerly NMFS) as one of the most important contributing causes to the decline
in steelhead and salmon populations in the Sacramento Valley, leading to their listing under the Endangered Species
Act.. See, e.g., 50 Code of Federal Regulations ("CFR") Part 227 (1998); 50 CFR Part 226 (2000); "Factors For
Decline" NMFS (1996) at pages 25-27,56; 50 CFR Part 223 (1999); 50 CFR Part 227 (1998). See NMFS
publication."Factors For Decline" that identifies gravel mines in flood plains as a major factor contributing to the
decline of,salmon and steelhead populations.
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1 6
1
ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E 5 5 1 0 N A L L A W- C O R PO R A T I ON
April 9, 2007 .
Page 7
The fundamental purpose of an EIR is to provide decision makers
with information they can use in deciding whether to approve a
proposed project, not to inform them of the environmental effects
of projects they have already approved.
As the Court stated in Save Tara v. City of West Hollywood (February 23, 2007) 2007
DJDAR 2360, 2365:
... The informational purpose of CEQA is crucial to informed
n
decisiomaking. While CEQA does not guarantee that these
decisions will always be those which favor environmental
considerations, "CEQA does, however,' guarantee or at least
attempt to assure that the environmental consequences of a i
government decision on whether to approve a project will be
considered before, not after, that decision is made." (Citation)
Given the informational purpose of CEQA, it should be obvious that an EIR must include
all relevant information to meet'the standards of the statute. An EIR that leaves out critical facts
directly germane to the decision before the governing body fails that test.
The FEIR before you contains serious defects of both omission and misstatement. We
describe the most salient of them below.
1. The EIR Fails to Describe Fairly and Adequately the Environmental
Setting in Which the Proposed Mine Will be Located.
Given the nature of the determination that Section 24-45.10 of your Code requires the
Commission to make (and you to consider on appeal), nothing could be more critical than having
before you a full, fair and complete description of the environmental setting. The defects
described in Section A above go to both the substantive decision you must make and the
adequacy of the FEIR — which remarkably but conspicuously mentions none of them. Under the
law, you cannot even begin to consider the substantive 'issues raised by the appeal with such a
deficient FEIR before you.
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ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E S S 1 O N A L L A W C O R P O R A T I O N
April 9, 2007
Page 8
Impacts cannot be assessed in a vacuum, without reference to a complete, accurate and
comprehensive baseline. Thus, the description of the environmental setting becomes one of the
most important components of a legally sufficient EIR.3 The EIR before you totally fails to
provide the information that the law and the particular setting in question require for the reasons
specified in Section A above, among others.
The description of the environmental setting in the FEIR focuses on the mine site, an
approach reminiscent of the ancient fable of the blind men and the elephant. Instead of
examining the context, the FEIR looks only at a small piece, the trunk or the tail or a leg,
whereas the true picture includes the whole. CEQA demands a similar approach.
When challenged with the fact that the FEIR had totally mischaracterized the uses of
Llano Seco, the consultant who prepared the document testified that EIRs " ...look at a mile
outside of the project.. . ." (Transcript 12/24/06 20:25) and that ... what's going on in Llano
Seco, granted that is over a mile from the project site ..." Transcript 12.24/06 21:16-18.
But nothing in CEQA limits the analysis of the environmental setting to a one mile
radius. No hard and fast rule applies.4 The EIR must describe the setting in the context of the
project and the determination before the lead agency. Thus, the environmental setting for a
transportation terminal (to pick an example) could be an entire region, that for a modest office
building in an urban setting no more than a city block or two. An EIR must present the baseline
that the project.*ill effect — a full and fair exposition of that context. The FEIR before you
contains none of that.
3 14 Ca1.Code Regs § 15125 states:, "Because the concept of a significant effect on the environment focuses on
changes in the environment, this section requires an EIR to describe the environmental setting of the project so that
the changes can be seen in context...."
a The EIR consultant conspicuously failed to cite authority for his ad hoc one mile rule.
NAMPARRRGM\Letters\Protest"letter 02-27-07
ELLMAN BURKE HOFFMAN & JOHNSON
A P R 0 F E S 5 I O N A L L A W C O R P O R A T 1 O N
April 9, 2007
Page 9
Moreover, the EIR consultant probably got his facts wrong ag well, as some of the
conservation and restored habitat zones on Llano Seco lie immediately adjacent to Ord Ferry
Road, within the contrived one mile radius.
2. The FEIR Fails.Adeouately To Describe The Impact Of Flood Waters
And Cumulative Sediment Loadings On Llano Seco.
It is a matter of common knowledge and public record that the roads in the immediate
vicinity of the proposed gravel mine are closed most years by flood waters. The waters in
question possess dynamic force sufficient to sweep automobiles off the road onto the adjoining
property.
Llano Seco. lies directly downstream from the proposed mine and receives high volumes.
of floodwater when Little Chico Creek and Angel Slough overflow or when the River reaches
flood stage raising the level of its tributaries. According to the FEIR, the gravel mine will
impact both Little Chico Creek and Angel Slough with Little Chico Creek flowing directly
through the mining area. This will add fine mine substrate sediments to the floodwaters that
flow directly into the prime habitat areas on Llano Seco.
The mine is supposedly designed to contain those flood waters or deflect them from the
pit so that they will not take on a loading of mine sediments. If those measures fail; Llano Seco
will receive the full brunt of that failure. It will be the primary = albeit unwilling — recipient of
that pollution. Those sediments will be deposited on Llano Seco, in areas that have been
converted to wetland habitat uses, a potential impact that the EIR does not even acknowledge, let
alone evaluates
When we raised those issues before the Commission, the County's environmental
consultant "responded" by observing that the floodwaters of Little Chico Creek already carry
5 Those areas of Llano Seco that are still devoted to grazing (which is part of the management strategy for seasonal
wetland management) have been certified "organic," a designation that will also be jeopardized by pollutants that
the mine will add to the floodwaters.
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ELLMAN. BURKE HOFFMAN & JOHNSON
A P R O F E 5 S 1 O N A L L A W C O R P O R A T I O N
April 9, 2007
Page 10
sediments, basically contending that.there was no issue, despite the obligation of an EIR to
consider cumulative impacts, i.e., the addition of mine sediments to the existing background.
Moreover, the response failed to consider the nature of mine sediments that are generated by fine
substrate, as opposed to the topsoil that flood waters normally carry. This is an important
r
distinction — as fisheries agencies have identified mine sediments as pollutants that have caused -
serious injury to anadromous.fisheries.6 `
3. The FEIR Fails Adeauately To Describe The Impact Of Mine
Sediments Od Groundwater. '
The proposed mine will penetrate deeply into an unconfined aquifer that lies close to the
ground surface. This aquifer moves in a southwesterly direction at a fast pace and has a direct
hydrologic connection with the Sacramento Rivera
The mine pit will directly introduce mine sediments into. the aquifer. The mine will
extract product from well below the water table down to a depth of perhaps as much as sixty feet. .
In addition, the mine pit will provide a pathway for floodwaters from Little Chico Creek to reach
the aquifer. According to the FEIR, Little Chico Creek carries a significant load of urban
pollutants from the City of Chico. In addition, the floodwaters will inevitably pick up heavy
equipment pollutants from the mining area itself.
During the proceedings before the Commission, the project proponents referred to this
phenomenon as though it were beneficial -- as "recharge" of the aquifer. But a permit from
appropriate agencies to inject water into an aquifer as "recharge " would require prior
treatment of the introduced waters to assure that the so-called "recharge "would not degrade i
the groundwater. Project approval conditions do not explicitly require such treatment. This is
not a matter properly left to the discretion of the Regional Water Quality Control Board as the
6 See note 2.above
Groundwater data available on the public record establishes that this aquifer recharges at an unusually fast pace,
indicating that it moves with unusual speed. ;
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ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E S S 1 O N A L L A W C O R P O R A T 1 O N
April 9, 2007
Page 11
integrity of groundwater quality is also a matter of concern for this Board, particularly where
citizens use that water for agricultural and domestic purposes.
More to the point, the FEIR fails even to mention this requirement as an indication that
exposing the aquifer to such pollution is an adverse impact for which the project proposes no.
mitigation, a serious, substantive omission.
C. The Commission's Findings Are Not Supported by Substantial Evidence and Do
Not Support the Action Taken.
1. The Commission's Rei ection of Alternatives to the Project is Not
Supported by Substantial Evidence and is Arbitrary and Capricious.
(a) Rejection of the No Project Alternative.
.The Commission's findings reject the "no project" alternative on the grounds that (i)
there are no other aggregate sites of comparable quality within Butte County, and (ii) any other
site would have the same impact on "biological resources, hydrology, water quality, noise, etc."
(Findings, Attachment A, p.18) as the proposed mine site. No substantial evidence supports
either conclusion, and the record contains no evidence that reliance upon existing and operating
mines would have greater total environmental (as opposed to financial) impact than proceeding
with the project as proposed.
To assume that any other source of aggregate would have the same level of impact as the
proposed mine, one must assume that all of the possible alternatives would be (i) located in a
flood plain, (ii) located in a sensitive recreation, wildlife and conservation zone, (iii) penetrate an
unconfined aquifer with direct connection to the Sacramento River, etc., without a shred of
evidence of any kind whatsoever to support those conclusions.8 The "no project" alternative
analysis also concludes that extraction from any existing mine would have the same
8 These conclusions directly conflict with the testimony of the project proponent whose statement is quoted at page
14 below from the 01/25/07 Commission transcript at 17:15-24. .
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EUMAN BURKE HOFFMAN & JOHNSON
A P R O F E 5 5 1 0 N A. L L A W C O RJ O R A T I O N
April 9; 2007
Page 12
environmental impacts as establishing a new mine in an area with the attributes enumerated
above — when it obvious that expanding an existing mine will have few if any of those effects.
Indeed, the possibility of longer truck hauls and higher transport costs represent the only
impact of meeting future demand from an existing mine. Neither the FEIR nor the
Commission's findings make any effort to balance this impact against; the enormous
consequences of going forward with the "preferred project" or any comparable mine. And the
record contains no evidence that those longer hauls and higher costs render the environmentally
superior alternatives "impractical" which is what the law requires if those alternatives are to be
rejected. Those alternatives could hardly be "impractical" when they are the very alternatives
on which the County relies today.
There is no substantial evidence to support the idea that the County has access to no other
aggregate sites except those that would be located in a flood plain, a conservation zone, penetrate
an aquifer with direct hydrologic contiguity with the Sacramento River, etc. In short, the
findings reject the "no project" alternative based on factual assertions that find no support in this.
Record.
Rejection of the "no project" alternative also assumes that "fair share" monetary
contributions will be sufficient to mitigate the traffic impacts caused by the mine, even though
those contributions will not be sufficient to correct the infrastructure deficiencies the Record
discloses. The Commission seemed to assume that because the County cannot charge the
applicant for more than its "fair share," it lacked the power to deny the permit on grounds of
infrastructure inadequacies. That is simply not correct.9 The entire purpose of a conditional use
permit process is to confer upon the governing bodies considering the permit the power to deny
the permit as inappropriate to the context including inadequate infrastructure.
Finally, the economic analysis offered.by the Commission to support the rejection of the
"no project" alternative assumes that the proposed site is the only site where a mine could be
9 An example illustrates the point: If the bridge on Ord Ferry Road had already failed, would the County be required
to grant this permit even though it could not charge the permittee for the cost of restoring the bridge to standards
sufficient to sustain gravel truck traffic? Of course not. Why is the pending application any different where the
Bridge's inadequacies are not in dispute?
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ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E_ S 5 1 0 N A L L A W C O R P O R A T 1 O N
April 9, 2007
Page. 13
established within the County to produce the, same sales tax, extraction revenues and other
economic benefits cited in the finding. No evidence supports that conclusion, substantial or
otherwise.
The M&T site may contain good gravel resources — but that is not the point. The
question is whether other resources are available that would supply a portion of the projected-
demand
rojecteddemand without the same level of adverse environmental impact. Nothing in the record even
addresses this issue — an omission that goes to the very heart of the decision before you.
(b) Rejection of Alternate Project Locations
The Commission's findings (Attachment A, p.19) rejecting consideration of other project'
locations suffer from the same analytical deficiencies of the "no project" alternative analysis; i.e.,
assuming that the impacts on biological resources, hydrology, water quality and noise would be
the same as the proposed mine. No substantial evidence in the Record supports that conclusion.
The.Commission's finding relies upon the fact that "the project site has been identified by the
applicant as the best source available for aggregate production with aggregates being available in
sufficient quantity and quality for construction materials." It should be obvious that self-serving
statements of the applicant do not provide sufficient evidence for rejection of such an alternative.
Preservation Action'Council v. City of San Jose (2006) 141 Cal.AppAth 1336.
The same logic applies with equal force to the Commission's rejection of Alternative 3.
The Commission found that the reduced'project would not "meet the basic project objective" and
also assumed that reducing the project size would not result in an overall reduction of
environmental impacts. Here again, the analysis suffers from the erroneous assumption that any
alternate mine would be located in a flood plain, in a conservation zone, would penetrate the
groundwater aquifer and have all of the other deleterious effects of the applicant's preferred
project. No substantial evidence supports such an inference or finding.
(c) Rejection of Environmentally Superior Alternatives
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ELLMAN BURKE HOFFMAN & JOHNSON
A P R O F E S S I O N A L L A W C O R P O R A T.I O N ,
r
April 9, 2007
Page 14
The findings identify the "no project" alternative and the reduced project alternative as
environmentally superior.. As noted above, any alternate site located out of the flood plain, the
conservation zone, etc., would be environmentally superior. The Record contains no evidence to
support a conclusion that such sites do not exist (other than the applicant's own statements).'0
Once the EIR identifies alternatives that are environmentally superior to the proposed
project, the lead agency cannot reject those alternatives without finding that they are
"infeasible. Pub.Res.Code §21002. The California Supreme Court recently emphasized the
importance of this requirement. City Of Marina v. Board Of Trustees Of The California State
University (2006) 39 CalAth 341.
Additional cost does not establish that an alternative is "infeasible."
An environmentally superior alternative cannot be deemed
infeasible absent evidence the additional costs or last profits are so
severe the project would become impractical [Citation]. Not can
the agency avoid anobjective consideration of an alternative
simply because ... an applicant made substantial investments in
the hope of gaining approval for a particular alternative [Citation].
Since CEQA charges the agency, not the applicant, with the task
of determining whether alternatives are feasible. The
circumstances that led the applicant ... to select the project for
which approval is sought and to reject alternatives cannot be
determinative of their feasibility ...
Kings County Farm Bureau v. City Of Hanford (1990) 221 Cal.App.3d 692, 736.
Where is the evidence in this record that the environmentally superior alternatives are
impractical rather than simply more costly? There is none. Indeed, the exact opposite comes'out
of the mouth of the project applicant's representative himself.
10 As the courts have stated, it is not for the project applicant to define the project purpose in a manner so restrictive
as to preclude the adoption of a more environmentally sensitive alternative. Preservation Action Council V. City of
San Jose (2006) 141 Cal.App.4th 1336.
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ELL -MAN BURKE HOFFMAN & JOHNSON
A P R O F E S S 1 O N AL L A W C OR P O R A T 1 O N
Apri19, 2007
Page 15
Testifying before the Commission on January 25, 2007, Rene Vercruyssen stated:
You have heard over the years that Baldwin can get their rocks
somewhere else. This statement is more than one hundred percent
true. This statement is fact ... we have the reserves and planned
reserves in Glenn County that will make this option a .viable one
for decades ... Transcript 1/25/07 17:15-24.
Moreover, there is no evidence in the record that the County's current needs are. not
being met - or that shortage looms. We submit that on this state of facts you cannot make the
finding that environmentally superior alternatives are infeasible as the law (Pub.Res.Code
§21002; City Of Marina, supra; Kings County Farm Bureau, supra); clearly requires.
The Commission bought the line the project applicant fed it, without reasoned analysis
directed to the key facts, i.e., a demonstration that went beyond cost and lost profits. t t
D. Miscellaneous.
As we have an obligation to raise before .you issues that we might seek to raise if this
matter is reviewed in court, we reiterate arguments we made that (i) the Commission agenda
notices did not properly describe the fact that the Commission would be acting on the use permit
and the EIR certification rather than just making a recommendation to you. This, we submit,
violates the Brown Act. (ii) The eleventh hour "errata" added to. the FEIR purporting to rectify
the erroneous description of the uses of Llano Seco goes to the heart of the determination before
you and required recirculation of the EIR under Pub.Res.Code § 21092.1 and CEQA Guidelines §
15088.5.
Finally, the project applicant has stated that you should proceed with permit issuance
1
because the applicant has indemnified the County and thus bears all the risk of error in your
In particular, the lead agency must explain in detail its reasons for rejecting suggestions and proceeding with the.
project despite its environmental effects. Guidelines § 15088(b). Citing Stanislaus Natural Heritage Project v.
County of Stanislaus (1996) 48 Cal.AppAth 182, 196 and Laurel Heights Improvement Association. v. Regents
(1993) 6 Cal.4th 1112, 1124.
NAP\PARRI\GM\Letters\Protest letter 02-27-07
r
EUMAN BURKE HOFFMAN & JOHNSON
A P R O F E S S 1 O N A L L A W C O R P O R A T 1 O N
April 9, 2007
Page 16
proceedings. But no indemnity from anyone can, absolve you from responsibility for your
official acts. You are the guardians of the integrity of the County's processes. No provision of
CEQA, the Planning & Zoning Law (Gov't Code §§66000, et seq.) states that your
responsibilities are reduced or eliminated because a project applicant has indemnified you.
Don't be misled. If the Attorney General (who must be served with a copy of any
compliant that gets filed to challenge your proceedings) decides that you have violated the law in
particulars that warrant his attention, you and the County will be defendants in that action — as
you will be in any actiona private party might file. On this record, those cases will contain
serious. allegations. It is not for the project applicant to tell you that you need not be concerned -
about those allegations and should therefore give them what they want because they want it.
That said, we respect the fact that this application raises some important issues worthy of
your informed and careful consideration, that could profoundly affect the future of the County
and the unique resources it contains. We appreciate your consideration of the foregoing and the
other issues the application before you implicates.
Very truly yours,
r/
Howard N. Ellman
HNE/flf
Enclosure
cc: Mr. Richard Thieriot
VMr. Pete Calarco, Assistant Director, Butte County Dept. of Development Services
Clerk, Butte County Board Of Supervisors
NAPTARRR M\Letters\Protest letter 02-27-07