Environmental Council of Sacramento v. City of Elk Grove CA3 ( 2021 )

Filed 8/30/21 Environmental Council of Sacramento v. City of Elk Grove CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ENVIRONMENTAL COUNCIL OF C089384
SACRAMENTO et al.,
(Super. Ct. No.
Plaintiffs and Appellants, 34201880002937CUWMGDS)
v.
CITY OF ELK GROVE et al.,
Defendants and Respondents;
SOUZA ELK GROVE, LLC, et al.,
Real Parties in Interest and
Respondents.
The California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000
et seq.) generally requires public agencies to prepare a detailed statement of
environmental impacts, known as an environmental impact report or EIR, before
approving projects that may have a significant effect on the environment. After an
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agency has finalized an EIR for a proposed project, that is typically the end of the
environmental review process under CEQA. But not always. Agencies at times propose
changes to a project after an EIR has been prepared and, relevant here, when those
changes are “[s]ubstantial” and require “major revisions” of the EIR, the agency must
then prepare a subsequent or supplemental EIR providing detailed information about the
potential environmental impacts of the proposed changes. But absent those
circumstances, an agency generally may change its EIR through an addendum.
In this case, the City of Elk Grove (the City) proposed modifying an EIR it had
prepared for the development of 1,200 acres of largely agricultural lands. In the initial
EIR, the City concluded that the proposed development would destroy foraging habitat
for the Swainson’s hawk, a species listed as threatened under California’s Endangered
Species Act. To mitigate the impact, the City required the developer to acquire, before
any site disturbance, replacement foraging habitat that the California Department of Fish
and Wildlife found suitable. But years later, the developer asked the City to modify the
EIR to add an alternative mitigation option that would allow it to acquire replacement
foraging habitat at a ranch known as the Van Vleck Ranch. The City agreed to the
request and, in an addendum, it found the proposed change would not trigger the need to
prepare a subsequent or supplemental EIR.
Appellants Environmental Council of Sacramento, Sierra Club, and Friend of
Swainson’s Hawk (collectively Environmental Council) afterward challenged that
decision, alleging the City’s decision was not supported by substantial evidence. But the
trial court disagreed, and, on appeal, we now affirm. At bottom, Environmental
Council’s arguments show that different experts disagreed about the mitigation value of
the Van Vleck Ranch site. One appeared to find the site inadequate. Another found
differently. But a disagreement among experts is not reason, in itself, to conclude an
agency’s decision is not supported by substantial evidence. We thus reject
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Environmental Council’s challenge to the City’s decision and affirm the trial court’s
judgment in the City’s favor.
BACKGROUND
I
Legal Background
CEQA serves “to ensure that public agencies will consider the environmental
consequences of discretionary projects they propose to carry out or approve.” (Stockton
Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488.) To that
end, absent an exemption, an agency proposing to carry out or approve a project
generally must conduct an initial study to determine “if the project may have a significant
effect on the environment.” (CEQA Guidelines,1 § 15063, subd. (a).)
Depending on the initial study’s findings, the agency must then prepare either an
EIR, a mitigated negative declaration, or a negative declaration. If “there is no
substantial evidence that the project or any of its aspects may cause a significant effect on
the environment,” the agency need only prepare a negative declaration that “briefly
describ[es] the reasons that a proposed project . . . will not have a significant effect on the
environment.” (CEQA Guidelines, §§ 15063, subd. (b)(2), 15371.) If substantial
evidence shows the project may in fact have a significant environmental effect, but the
project applicant agrees to changes that would avoid or mitigate them to an insignificant
level, then the agency may instead prepare a mitigated negative declaration. (CEQA
Guidelines, § 15070, subd. (b).) And if substantial evidence shows the project may have
a significant environmental effect and a mitigated negative declaration is inappropriate,
then the agency must prepare an EIR providing detailed information about the project’s
1 California Code of Regulations, title 14, sections 15000-15387 are commonly
referred to as the CEQA Guidelines. We use that shorthand here.
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potential environmental impacts. (Pub. Resources Code, §§ 21100 [state agency
requirements], 21151 [local agency requirements], 21061 [defining an EIR].)
For many projects, the preparation of an EIR “is the end of the environmental
review process. But like all things in life, project plans are subject to change. When such
changes occur, [Public Resources Code] section 21166 provides that ‘no subsequent or
supplemental environmental impact report shall be required’ unless at least one or more
of the following occurs: (1) ‘[s]ubstantial changes are proposed in the project which will
require major revisions of the environmental impact report,’ (2) there are ‘[s]ubstantial
changes’ to the project’s circumstances that will require major revisions to the EIR, or (3)
new information becomes available.” (Friends of College of San Mateo Gardens v. San
Mateo County Community College Dist. (2016) 1 Cal.5th 937, 945 (Friends); see also
CEQA Guidelines, §§ 15162, subd. (a) [describing when a subsequent or supplemental
EIR is required], 15163 [describing the difference between a subsequent and a
supplemental EIR].)
Our focus in this case is on the first of these circumstances calling for a
subsequent or supplemental EIR — that is, when “[s]ubstantial changes are proposed in
the project which will require major revisions of the environmental impact report.”
Agencies may propose project changes requiring revisions to an EIR, including an EIR’s
mitigation measures, for a variety of reasons. In some situations, for example, an adopted
mitigation measure for a project may prove to be impracticable or unworkable. In other
situations, as another example, an agency and the project applicant may find a new
mitigation measure would be superior to the one initially adopted. Each of these
scenarios, and others more still, may lead an agency to decide to modify a mitigation
measure in its EIR.
But only some of these changes, as Public Resources Code section 21166 shows,
require the preparation of a subsequent or supplemental EIR. Should an agency’s
proposed change to a mitigation measure be “[s]ubstantial” and “require major revisions
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of the [EIR],” then, per Public Resources Code section 21166, the agency must prepare a
subsequent or supplemental EIR. But should an agency’s proposed change fall short of
“requir[ing] major revisions of the [EIR],” then the agency need only prepare an
addendum to the EIR. To proceed by an addendum, the agency must determine, based on
substantial evidence in the record, “that project changes will not require ‘major revisions’
to its initial environmental document, such that no subsequent or supplemental EIR is
required.” (Friends, supra, 1 Cal.5th at p. 953; see also CEQA Guidelines, § 15164,
subd. (e) [an agency that proposes to change an EIR through an addendum should include
a “brief explanation of the decision not to prepare a subsequent EIR,” which “must be
supported by substantial evidence”].)
II
Factual Background
In 2014, the City certified an EIR for a project titled the Southeast Policy Area
Strategic Plan (the Southeast Plan). As approved, the project allows for the future
development of about 1,200 acres that currently consists largely of agricultural and
undeveloped lands. The City certified the final EIR for the project in 2014.
According to the EIR, implementation of the Southeast Plan would have a
potentially significant impact on the Swainson’s hawk — a species that is listed as
threatened under California’s Endangered Species Act. (See California Department of
Fish and Wildlife, State and Federally Listed Endangered and Threatened Animals of
California (July 6, 2021), p. 16
[as of Aug. 30,
2021], archived at [listing the Swainson’s hawk as a
threatened species].) In particular, the EIR found, the project would result in a significant
loss of foraging habitat for the hawk. To mitigate that loss, the EIR required any
developer of the project lands to “acquire conservation easements or other instruments to
preserve suitable foraging habitat for the Swainson’s hawk, as determined by the
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California Department of Fish and [Wildlife]” (DFW). This habitat, the EIR stated,
would need to “be governed by a one-to-one (1:1) mitigation ratio for each acre
developed at the project site” and be located at a location “acceptable to the City and to
[DFW].”
In 2017, several years after the City approved the Southeast Plan and certified the
EIR, a developer sought to develop over 900 acres of the 1,200 acres subject to the
Southeast Plan. Because about 895 of these acres consists of Swainson’s hawk foraging
habitat, the EIR required the developer, before any site disturbance, “to preserve [895
acres of] suitable foraging habitat for the Swainson’s hawk, as determined by [DFW].”
But rather than pursue this mitigation option, the developer instead asked the City to
amend the EIR. In particular, the developer asked the City to modify the EIR to add an
alternative mitigation option that would allow the developer to acquire mitigation lands
on the Van Vleck Ranch.
City staff afterward, with the assistance of consulting firm Ascent Environmental,
drafted an addendum to accomplish the developer’s desired change and recommended
that the City’s council approve a resolution adopting the addendum. City staff reasoned
that an addendum, rather than a supplemental or subsequent EIR, was appropriate
because, among other things, the modification would not cause “an increase in severity of
environmental impacts.”
Under the proposed modification, the EIR would allow the developer to mitigate
for the loss of the 895 acres of Swainson’s hawk foraging habitat in one of two ways.
Under option one, as also allowed in the initial EIR, the developer could “acquire
conservation easements or other instruments to preserve [895 acres of] suitable foraging
habitat for the Swainson’s hawk, as determined by [DFW].” Under option two, the
developer could instead acquire a conservation easement to preserve 895 acres of suitable
foraging habitat on the Van Vleck Ranch — even if DFW found these lands unsuitable.
This option, should the developer pursue it, would also involve certain “habitat
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enhancements,” including, for example, (1) the conversion of 50 acres of irrigated pasture
on the Van Vleck Ranch (considered moderate-value foraging habitat) to alfalfa
(considered high-value foraging habitat) and (2) the “[p]lanting of 20 cottonwood trees
on the Van Vleck Ranch to enhance/create nesting habitat.”
Before City council considered the modification, the City notified DFW and the
public about the proposed modification and scheduled a public hearing. DFW, as is its
practice, evaluated the proposed change under nine criteria. In its view, the modification
was consistent with six of its criteria because, among other things, the proposed
mitigation lands would support foraging habitat for the hawk, “be connected to other
protected habitat thereby contributing to larger habitat preserve,” “be outside areas
identified for urban growth,” and “be managed in perpetuity as foraging habitat.” But,
DFW believed, the modification would be inconsistent with its remaining three criteria.
First, it found, the Van Vleck Ranch mitigation lands, at 18 miles from the project site,
would “not [be] within a biologically supportable distance from the impact site.”
According to DFW, “many biological consultants and mitigation bankers have expressed
that this distance is, or should be[,] 10 miles.” Second, DFW stated, the Van Vleck
Ranch mitigation lands would provide inferior foraging habitat compared to the “impact
site.” It wrote: “The majority of the proposed Van Vleck Ranch mitigation site is
characterized by annual grassland with oak woodland, whereas the impact site contains a
mix of alfalfa and other semi-perennial hays, hayfields, irrigated cropland and irrigated
pasture. Therefore, the proposed Van Vleck Ranch mitigation site would not be able to
support the larger population density that is present near the Project site.” Third, DFW
asserted, the Van Vleck Ranch mitigation site would be “in direct competition with,” and
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potentially “have an unfair advantage” over, the neighboring Van Vleck Ranch mitigation
bank, which was established “to sell [Swainson’s hawk] mitigation credits.”2
Environmental Council offered a similar assessment of the modified mitigation
measure. In a comment letter, it too expressed concerns about the proposed change,
alleging, among other things, that the foraging habitat at the Van Vleck Ranch “is of a
lower quality and character” and too “distant from the area of impact.”
In written responses, City staff acknowledged DFW’s and Environmental
Council’s concerns but continued to recommend approval of the modified mitigation
measure. Addressing first DFW’s point about the ranch’s distance from the project, the
City agreed that “mitigation within 10 miles of the impacted site is commonly
recommended.” But it found that “the preservation of foraging habitat at the Van Vleck
Ranch will benefit the regional [Swainson’s hawk] population as a whole” and preserve
“historic grassland foraging habitat,” which DFW has identified as a “key factor[]” for
protecting the species. The City also found there were no comparable lands lying within
10 miles of the project site. Although the City noted, it could find some mitigation lands
within 10 miles of the project, these lands totaled only 709 acres (short of the 895 acres
required), covered four distinct parcels (instead of, as is preferred, a single contiguous
parcel), cost far more than the cost of mitigation at the Van Vleck Ranch (nearly four
times as much), and were surrounded by agriculture lands “with uncertain long-term
habitat value as a result of changing land use and farming practices” (while the lands
surrounding the Van Vleck Ranch mitigation site are largely protected lands). Finally,
2 According to Environmental Council, DFW also found the project would be
inconsistent with one more of its nine criteria. Apart from the already mentioned criteria,
Environmental Council claims DFW also “found the modification conflicts with the
[Swainson’s hawk] conservation strategy under the proposed South Sacramento County
Habitat Conservation Plan” (SSCCP). Environmental Council misstates the record.
DFW expressly found “the site will not conflict with the SSCCP.”
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the City questioned DFW’s finding that mitigation lands must be no farther than 10 miles
distant to be biologically supportable. Although, it said, “mitigation within 10 miles of
the impacted site is commonly recommended, the 10-mile distance is not a requirement
of the existing California Fish and Game Code or formal policy or guidance issued by
[]DFW.”
Considering next DFW’s comment about the inferior quality of the Van Vleck
Ranch mitigation lands, the City acknowledged that the Van Vleck Ranch lands would
not support the same breeding density as the project site in the short term. But in light of
other considerations, it nonetheless believed the Van Vleck Ranch lands “contain equal
or better foraging habitat as compared with the habitat impact site.” It reasoned that these
lands provide “stable nesting and foraging conditions” and are adjacent to other protected
lands that also provide foraging habitat for the Swainson’s hawk. It also noted that 50
acres of conserved lands near the Van Vleck Ranch mitigation site would be converted to
alfalfa “to provide increased prey availability” for the hawk.
The City turned last to DFW’s comment that the Van Vleck Ranch mitigation
lands would directly compete with the nearby Van Vleck Ranch mitigation bank. The
City indicated that, for its purposes at least, the proposed mitigation lands and the Van
Vleck Ranch mitigation bank were not competing options. Because, the City said, the
project site sits outside the mitigation bank’s service area, it is not even an option for the
City. The City added that no existing mitigation bank that could serve the project has the
required 895 mitigation credits for the project site.
The developer’s consulting biologist, Jim Estep, generally agreed with the City’s
conclusions. Estep, who has researched the Swainson’s hawk in the Sacramento Valley
and throughout California for over 30 years, acknowledged that “[]DFW typically uses a
maximum distance of 10 miles between the impact and mitigation site.” But he testified
that “there isn’t any real good science behind that number at all” and said that Swainson’s
hawks have been found to forage out to 20 miles. Estep also acknowledged that the Van
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Vleck Ranch mitigation lands would not, at least in the short run, support the same level
of breeding density as in the vicinity of the project site. On that topic, he wrote, the Van
Vleck Ranch mitigation lands consists primarily of “grassland habitat” that provides
moderate-value foraging habit for the Swainson’s hawk, while the project site currently
consists primarily of lands that provide moderate- to high-value foraging habitat. But
considering other favorable attributes of the ranch, he ultimately found the value of the
foraging habitat at the Van Vleck Ranch site is “[s]imilar to the value of the impact area”
and, compared to the impact site, said “it’s definitely a good tradeoff.”
Following a public hearing, the City’s council adopted a resolution approving the
addendum to the EIR. According to the City’s resolution, the proposed modification
would “provide[] other viable options for mitigating the loss of foraging habitat at a 1:1
ratio,” would “not change the effectiveness of the EIR’s Mitigation Measures,” and
would not cause “an increase in severity of environmental impacts.” Those
considerations in mind, the City found it unnecessary to prepare a subsequent or
supplemental EIR.
Shortly after the City approved the addendum, Environmental Council filed a
petition for writ of mandate against the City and the City’s council. According to
Environmental Council, the City’s “approval of an Addendum . . . to allow for the option
to mitigate for the loss of Swainson’s hawk foraging habitat at the Van Vleck Ranch is
not supported by substantial evidence.” In support, it principally argued that (1) the
City’s “[a]llowing for mitigation beyond the 10[ ]miles from the Project’s impacts to the
hawk is not supported by [the] record” and (2) the City’s conclusion that the Van Vleck
Ranch offers adequate replacement foraging habitat is also not supported by the record.
The trial court denied Environmental Council’s petition. Addressing first
Environmental Council’s argument concerning the inferior quality of the ranch lands, it
accepted that, in DFW’s view, “the Van Vleck Ranch would not be able to support the
larger population density of Swainson’s hawks present near the Project site, because the
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foraging habitat at Van Vleck Ranch . . . supports less prey.” But even so, it found,
“[d]isagreement from other agencies about the significance of impacts to a project, in and
of itself, is not a basis for overturning the City’s decision.” Turning next to the distance
of the ranch, the court acknowledged the Van Vleck Ranch was not, in DFW’s view, “ ‘a
biologically supportable distance from the impact site,’ as it was 18 miles from the [site],
rather than its preferred standard of 10 miles from the project site.” But, the court wrote,
the developer’s expert’s “testimony describes the origin of the ten-mile limit, explains
that the number is not dispositive and states that Swainson’s hawks can forage for longer
distances — up to 20 miles.” That testimony, the court found, was enough to show that
“the Van Vleck Ranch is located within a biologically supportable distance from the
impact site.” And, the court added, DFW’s contrary position appears to be “no more than
‘unsubstantiated opinion or narrative’, which does not constitute ‘substantial evidence.’ ”
The court afterward entered judgment in the City’s favor.
Environmental Council timely appealed.
DISCUSSION
Environmental Council, for largely the same reasons it argued at the trial level,
contends the City’s approval of the addendum to the EIR is not supported by substantial
evidence. It reasons that (1) “[a]llowing for mitigation beyond the 10[ ]miles from the
Project’s impacts to the hawk is not supported by [the] record,” and (2) because the
record shows that the Van Vleck Ranch does not support the same density of Swainson’s
hawk nests as in the project area, “substantial evidence does not support a finding that the
project will be mitigated.” Like the trial court, however, we find Environmental
Council’s arguments fall short.
We start with Environmental Council’s assertion that “[a]llowing for mitigation
beyond the 10[ ]miles from the Project’s impacts to the hawk is not supported by [the]
record.” To support the claim, Environmental Council notes that the City’s own website
previously said mitigation lands would “ideal[ly]” be located within 10 miles of a project
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site. It also notes that DFW wrote that the Van Vleck Ranch is too distant because it is
not within 10 miles of the project site. According to DFW, again, the Van Vleck Ranch
mitigation lands, at 18 miles from the project site, would “not [be] within a biologically
supportable distance from the impact site.”
But neither of these contentions require reversal. First, although the City
acknowledges that its website once said that mitigation lands should “ideal[ly]” be
located within 10 miles of a project site, a mitigation measure is not deficient simply
because it is not “ideal.” The City, after all, had no need to adopt a mitigation measure
that would avoid all potential impacts, as would be true of an ideal mitigation measure. It
only needed to adopt a measure that would reduce potential impacts to a less than
significant level — or, if that were not possible, to adopt a statement of overriding
considerations. (Pub. Resources Code, § 21081; see also Save Panoche Valley v. San
Benito County (2013) 217 Cal.App.4th 503, 528 [“ ‘[M]itigation need not account for
every square foot of impacted habitat to be adequate. What matters is that the
unmitigated impact is no longer significant.’ ”].)
Second, although true that DFW believed the Van Vleck Ranch too distant from
the impact site, another Swainson’s hawk expert, Estep, found differently. Estep, again,
is a biologist who has researched the Swainson’s hawk for over 30 years. In his view, the
Swainson’s hawk’s foraging range is broader than DFW’s preferred 10-mile rule
suggests. According to Estep, “the ten-mile thing” was initially used “to determine
whether or not you would mitigate at all. If you ha[d] a hawk nesting within ten miles of
your project, then you would be required to mitigate.” But “if you had a hawk that was
10.5 miles [distant], you wouldn’t be required to mitigate. So that was sort of the
guidelines that were used.” But, he stated, this principle “somehow . . . got morphed into
this issue of mitigation and where to mitigate,” even though “we had birds actually
foraging out to 20 miles” — a distance greater than the 18 miles here. Considering this
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background, Estep said, “there isn’t any real good science behind that [10-mile] number
at all” and “the distance is not an issue.”
A former director of DFW, Ryan Broderick, echoed some of these sentiments. He
too appeared to believe that 10 miles was a somewhat arbitrary number. In his telling,
DFW’s “ten-mile radius” preference “has been left on the books” because, “from a
pragmatic standpoint,” “putting the energy and time into trying to determine what is the
right size, what is the perfect algorithm, is really beyond the capacity of most everyone at
this point.”
Considering all the expert testimony, we cannot say, as Environmental Council
would have us, that “[a]llowing for mitigation beyond the 10[ ]miles from the Project’s
impacts to the hawk is not supported by [the] record.” We can say only that we have a
disagreement among experts on this topic. One expert, DFW, said mitigation lands
should be located within 10 miles of the impact site. Another expert, Estep, said
mitigation lands could be located well beyond 10 miles — as far, it appears, 20 miles
distant. And a third person, a former DFW director, appeared to agree that DFW’s
reliance on a 10-mile radius is somewhat arbitrary, though he declined to settle on any
better figure.
Although this testimony may reflect different views about the appropriate distance
of mitigation lands, a disagreement among experts is not reason, in itself, to conclude an
agency’s decision is not supported by substantial evidence. As this court has previously
said, “[p]ointing to evidence of a disagreement with other agencies is not enough to carry
the burden of showing a lack of substantial evidence to support the City’s finding.”
(California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603,
626 (California Native Plant Society).) And as our Supreme Court long ago explained,
“[a] court may not set aside an agency’s approval of an EIR on the ground that an
opposite conclusion would have been equally or more reasonable. [Citation.] A court’s
task is not to weigh conflicting evidence and determine who has the better argument
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when the dispute is whether adverse effects have been mitigated or could be better
mitigated. We have neither the resources nor scientific expertise to engage in such
analysis, even if the statutorily prescribed standard of review permitted us to do so.”
(Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, 393; see also CEQA Guidelines, § 15384, subd. (a) [“ ‘[s]ubstantial
evidence’ . . . means enough relevant information and reasonable inferences from this
information that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached”].)
Environmental Council, in its opening brief, never confronts this conflicting expert
testimony. It instead only briefly attempts to do so in its reply brief, stating there that
Estep’s comments “constitute unsubstantiated opinion as he provides no citations to
studies or documents that support this opinion.” But we are aware of no rule that renders
an expert’s opinion “unsubstantiated” unless explicitly supported by “citations to studies
or documents,” and Environmental Council, for its part, offers no legal authority
supporting its position. We thus reject Environmental Council’s belatedly made and little
explained argument. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785
[“When an appellant . . . asserts [a point] but fails to support it with reasoned argument
and citations to authority, we treat the point as waived”]; Neighbours v. Buzz Oates
Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [arguments raised for the first time in
a reply brief, without good cause, are forfeited].)
We turn next to Environmental Council’s contention that because the record
shows that the Van Vleck Ranch does not support the same density of Swainson’s hawk
nests as in the project area, “substantial evidence does not support a finding that the
project will be mitigated.” The premise of Environmental Council’s argument, we agree,
is generally accurate. DFW, for example, stated that “the proposed Van Vleck Ranch
mitigation site would not be able to support the larger population density that is present
near the Project site.” And Estep largely agreed on this point, acknowledging that the
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foraging habitat around the project site could currently support higher breeding densities,
though he questioned whether that would be true in the long run. The Van Vleck Ranch
mitigation lands, he wrote, consists primarily of “grassland habitat” that provides
moderate-value foraging habit for the Swainson’s hawk, but the project site consists
primarily of lands that provide moderate- to high-value foraging habitat. About 639 acres
of the project site, he explained, consists of various types of habitats with moderate
foraging value and about 256 of these acres consists of alfalfa and other semi-perennial
hays with high foraging value. The Swainson’s hawk, Estep noted, is historically “a
grassland species” but certain crops, like alfalfa, can support artificially elevated breeding
densities because of the higher “availability and abundance of prey.”
But although Estep acknowledged this one comparative shortcoming of the Van
Vleck Ranch lands, considering other favorable attributes of the ranch lands, he
ultimately concluded that “it’s definitely a good tradeoff.” Estep, again, believed the
project site could support a higher breeding density than the Van Vleck Ranch site
because it currently consists, in large part, of certain irrigated crops that tend to have
abundant and accessible rodent prey populations. But he also found this advantage
potentially fleeting. Although he noted, some types of irrigated croplands (like alfalfa)
could support higher breeding densities, and although large parts of the project site and
neighboring areas are currently planted in these crops, he said changing economic
incentives have increasingly resulted in the conversation of these beneficial crops to other
crops (like vineyards and orchards) that are unsuitable for Swainson’s hawk foraging
habitat. Considering these changes, along with issues raised by water availability, Estep
said that “[t]he dependency on cultivated habitats . . . has potential negative implications”
and concluded that “the long-term sustainability of irrigated lands functioning as habitat
for Swainson’s hawk in the Central Valley is increasingly questionable.”
In contrast to these cropland habitats, Estep found that grassland habitats, like
those present on the Van Vleck Ranch, offer “more ecological[ly] stable” habitats that
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“are really essential to maintaining the population over the long-term as we continue to
see this change in ag. patterns.” The Van Vleck Ranch site, he wrote, provides a
“suitable foraging habitat” that is “moderately grazed and maintained in a condition that
promotes good prey availability and accessibility for foraging Swainson’s hawks.” The
ranch site, he added, is also adjacent to other protected lands that provide Swainson’s
hawk foraging habitat, increasing its “ecological value.” Taking into account the various
competing considerations, Estep ultimately concluded that the Van Vleck Ranch site is
“[s]imilar to the value of the impact area,” offers “many, many components that are very,
very important to this species,” and, compared to the impact site, is “definitely a good
tradeoff.”
Broderick, the former DFW director, appeared to find similarly. He too testified
that crops in the region of the project site have transitioned over the years from row crops
(which can serve as suitable foraging habitat) to vineyards and orchards (which are not
considered suitable foraging habitat). And he too spoke favorably of the Van Vleck
Ranch, saying: “To have the size of the Van Vleck Ranch that can actually be
holistically managed and is close enough to other major conservation investments that
have been done through wildlife conservation boards and supportive nonprofits I think is
definitely a better way to go for long-term sustainability.”
Ultimately, then, as with the discussion about the appropriate distance for a
mitigation site, we are left with a disagreement among experts. One expert, DFW,
questioned the value of the Van Vleck Ranch as a mitigation site. But another expert,
Estep, found the value of the foraging habitat at the ranch is “[s]imilar to the value of the
impact area” and, compared to the impact site, said “it’s definitely a good tradeoff.”
DFW might have found differently, but, again, a disagreement among experts is not
reason in itself to conclude an agency’s decision is not supported by substantial evidence.
(California Native Plant Society, supra, 172 Cal.App.4th at p. 626.)
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Environmental Council, in alleging the City’s findings on this point are not
supported by substantial evidence, never acknowledges Estep’s ultimate conclusions
about the value of the Van Vleck Ranch site. It never acknowledges, for example,
Estep’s conclusion that the value of the foraging habitat at the Van Vleck Ranch site is
“[s]imilar to the value of the impact area.” Environmental Council instead focuses
principally on certain portions of Estep’s reports that appear more favorable to its
position — arguably forfeiting its contention as a result. (See Rayii v. Gatica (2013) 218
Cal.App.4th 1402, 1408 [an appellant “who cites and discusses only evidence in his favor
fails to demonstrate any error and waives the contention that the evidence is insufficient
to support the judgment”].) Environmental Council notes, for example, that Estep wrote
in a 2007 report that the lands between “Interstate 5 on the west and Clay Station Road”
(where the project site is located) are “considered the highest priority target area for
conservation,” while the lands “east of Clay Station Road” (where the Van Vleck Ranch
is located) are “less appropriate for conservation purposes.” But generalities about the
conservation value of the lands “east of Clay Station Road” tell us little about the
conservation value of a particular parcel in that region. And focusing on the particular
parcel relevant here, the Van Vleck Ranch, Estep, again, concluded the site is “[s]imilar
to the value of the impact area” and “definitely a good tradeoff.” In this testimony, Estep
may not have explicitly said that acquiring replacement foraging habitat at the Van Vleck
Ranch would mitigate potential impacts to the Swainson’s hawk to an insignificant level
— something Environmental Council appears to find significant — but we find his
testimony sufficiently evinces the same sentiment.
Finally, offering a new type of argument, Environmental Council briefly suggests
that the City considered the project’s impacts on a hypothetical “historic pre-agricultural
condition” rather than its impacts on the current environmental setting. Before
addressing the point, we begin with a little legal background. An agency must, in its EIR,
“include a description of the physical environmental conditions in the vicinity of the
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project,” which is referred to as the project’s “environmental setting.” (CEQA
Guidelines, § 15125, subd. (a).) The agency must normally then use this description of
the existing environmental setting as the “ ‘baseline’ against which predicted effects [of
the project] can be described and quantified.” (Neighbors for Smart Rail v. Exposition
Metro Line Construction Authority (2013) 57 Cal.4th 439, 447.) In Environmental
Council’s apparent view, however, rather than evaluate the project’s impacts on the
existing environmental setting, Estep (and the City) instead improperly evaluated the
project’s impacts on “the historic pre-agricultural condition.” We reject the argument.
As the City notes, because no party ever raised this alleged issue at the administrative
level, Environmental Council cannot now raise it on appeal. (See Pub. Resources Code,
§ 21177, subd. (a); California Native Plant Society, supra, 172 Cal.App.4th at p. 615
[“ ‘ “Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance
of a CEQA action.” ’ ”].)
In the end, Environmental Council’s several arguments principally show that
different experts disagreed about the mitigation value of the Van Vleck Ranch site. DFW
appeared to find the site inadequate. Estep found differently. But again, a party does not
show that an agency’s findings are inadequate simply by pointing to evidence of a
disagreement among experts. (California Native Plant Society, supra, 172 Cal.App.4th at
p. 626.) We thus find that Environmental Council has failed to carry its burden to show
that a lack of substantial evidence supported the City’s decision to proceed by an
addendum rather than a subsequent or supplemental EIR.
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DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/
BLEASE, J.
We concur:
/s/
RAYE, P. J.
/s/
MAURO, J.
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