Yolo Land and Water Defense v. County of Yolo ( 2024 )

Filed 9/13/24; Modified and Certified for Partial Pub. 10/3/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
YOLO LAND AND WATER DEFENSE et al.,
Plaintiffs and Appellants, C099086
v. (Super. Ct. No. CV2022-0277)
COUNTY OF YOLO et al.,
Defendants and Respondents;
TEICHERT INC.,
Real Party in Interest and Respondent.
Teichert, Inc. (Teichert) sought permission from the County of Yolo (Yolo
County) to mine sand and gravel on specified property and then to reclaim a portion of
the mined area to farmland, a lake, grasslands, and riparian habitat. Yolo County
1
prepared a draft environmental impact report (EIR) for the project and later a final EIR.
Concluding that the benefits of the project overrode the significant and unavoidable
environmental impacts, the Yolo County Board of Supervisors (the Board) certified the
final EIR and approved the mining permit.
The Sierra Club and Yolo Land and Water Defense (appellants) filed a petition for
writ of mandate against Yolo County and the Board (collectively the County) challenging
the certification of the EIR and approval of the project. The trial court denied the writ
petition and also denied appellant’s challenge to a portion of the memorandum of costs
filed by the County.
Appellants now contend (1) the EIR improperly included pollutants and emissions
from other Teichert operations in the baseline for the project, (2) the EIR did not
adequately address the potentially significant impacts of an increase in methylmercury in
the reclaimed lake, (3) substantial evidence does not support a mitigation measure
conclusion that 113 acres of prime farmland, equivalent in quality and capacity to
existing prime farmland, will be reclaimed, and (4) it was improper to award the County
costs for preparation of the administrative record, and the amount of the award was
excessive and not supported by documentation.
We conclude (1) it was proper for the EIR to use existing conditions as the
baseline for environmental analysis, and substantial evidence supports Yolo County’s
determination of the existing conditions; (2) the EIR adequately addressed the potentially
significant impacts of the potential for an increase in methylmercury in the reclaimed
lake; (3) substantial evidence supports the goal in mitigation measure 4.2-1 to reclaim
mined land to a state equivalent in quality and capacity to existing prime farmland; and
(4) it was proper to award the County costs for preparation of the administrative record,
and appellants have not shown that the awarded amount was unsupported or
unreasonable.
2
We will affirm the judgment and the order denying appellants’ motion to tax the
County’s record preparation costs.
BACKGROUND
Teichert sought permission to mine sand and gravel at a 319.3-acre site in Yolo
County within the boundaries of the Cache Creek Area Plan. The proposed project is
known as the Teichert Shifler Mining and Reclamation project (Teichert Shifler or the
project). The Cache Creek Area Plan contains an aggregate resources management plan
for a portion of Lower Cache Creek that establishes a regulatory framework for off-
channel mining. The project must comply with the Cache Creek Area Plan requirements.
The project provides that following mining activities, approximately 113 acres of
the mining area will be reclaimed to agricultural use. Another portion of the mining area
will be reclaimed to a lake, grasslands, and riparian woodland. In addition, there will be
a transfer of permitted production from a Teichert Esparto mining operation (Teichert
Esparto) and a Teichert Schwarzgruber mining operation (Teichert Schwarzgruber) to the
Teichert Shifler operation.
Yolo County is the lead agency responsible for preparing the EIR for the project.
(Pub. Resources Code, § 21080.1, subd. (a).)1 A notice of preparation was released on
August 16, 2019. Yolo County then prepared a draft EIR. After a public meeting to
discuss the project and receive oral comments on the draft EIR, Yolo County prepared a
final EIR.
The Board issued findings of fact and a statement of overriding considerations,
concluding that the benefits of the project overrode the significant and unavoidable
environmental impacts. It certified the final EIR and approved a mining permit for
Teichert Shifler for a maximum term of 30 years to extract a maximum of 35.4 million
1 Undesignated statutory references are to the Public Resources Code.
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tons of material. It also approved the transfer of specified mining tonnage allocations
from Teichert Esparto and Teichert Schwarzgruber to Teichert Shifler upon completion
of the Teichert Esparto and Teichert Schwarzgruber operations.
Appellants filed a petition for writ of mandate under the California Environmental
Quality Act (CEQA) (§ 21000 et seq.) and Code of Civil Procedure section 1094.5 or
1085 against the County, challenging the certification of the EIR and approval of the
project. Appellants also filed a notice of election to prepare the administrative record
pursuant to section 21167.6, subdivision (b)(2). Following a hearing, the trial court
issued an order denying appellants’ writ petition and entered judgment in favor of the
County.
The County filed a memorandum of costs seeking, among other things, $3,813.45
for the cost to prepare the administrative record. Appellants filed a motion challenging
that cost but the trial court denied the motion.
STANDARD OF REVIEW
The standard of review in a CEQA case is abuse of discretion. (§ 21168.5;
Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512.) But we determine de novo
whether the EIR’s discussion of environmental impacts, mitigation measures or other
required information is adequate, that is, whether the discussion is “ ‘ “ ‘sufficient to
enable those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ ” ’ ” (Id. at p. 516; see id. at
pp. 513-516.) In doing so, we keep in mind that our role is to determine whether the EIR
is sufficient as an informational document, not whether the agency’s conclusions are
correct. (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 392 (Laurel Heights Improvement Assn.); see CEQA Guidelines,
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§§ 15003, subd. (i), 15151 (Guidelines).)2 And we review the agency’s factual
determinations for substantial evidence. (Sierra Club, at p. 516; Vineyard Area Citizens
for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435;
Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277,
1296 (Habitat & Watershed Caretakers).) Under that standard, we accord deference to
substantive factual conclusions, we do not set aside a determination on the ground that an
opposite conclusion would have been equally or more reasonable, we do not reweigh
conflicting evidence, and we resolve reasonable doubts in favor of the findings and
decision. (Sierra Club, at p. 512; Berkeley Keep Jets Over the Bay Com. v. Board of Port
Commissioners (2001) 91 Cal.App.4th 1344, 1356.) Further, we presume the challenged
EIR is adequate. The party challenging the EIR bears the burden of proving it is
inadequate or that insufficient evidence supports one or more of its conclusions. (Rialto
Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 924-925
(Rialto); Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116
Cal.App.4th 1099, 1106; Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners
(1993) 18 Cal.App.4th 729, 740 (Al Larson).)
DISCUSSION
I
Appellants contend the EIR improperly included greenhouse gas emissions and
criteria pollutants from the Teichert Esparto and Teichert Schwarzgruber mining
operations as part of the environmental baseline.
A
As explained in the draft EIR, criteria pollutants are pollutants for which national
or state ambient air quality standards have been established. Greenhouse gases trap heat
2 California Code of Regulations, title 14, section 15000 et seq.
5
in the Earth’s atmosphere. The draft EIR describes criteria pollutant and greenhouse gas
emissions from existing agricultural, mining and aggregate processing activities. It
discloses that it uses existing emissions from agricultural activities at the project site,
mining operations at Teichert Esparto and Teichert Schwarzgruber, and processing
activities at Teichert Esparto and a Teichert processing plant in Woodland, California
(Teichert Woodland), as the environmental baseline for analyzing the effects of the
project’s predicted criteria pollutant and greenhouse gas emissions. Tables 4.3-10 and
4.3-19 of the draft EIR compare greenhouse gas emissions and criteria pollutants from
existing agricultural, mining, and processing activities with predicted emissions from the
project.
Yolo County approved the Teichert Esparto operation in December 1996
for a maximum term of 30 years and a maximum annual production rate of
1,176,471 tons mined. According to the draft EIR, the Teichert Esparto permit
expires on January 1, 2028. The Teichert Schwarzgruber operation was approved in
November 2012 for a maximum term of 30 years and a maximum annual production rate
of 1,176,471 tons mined. Mining at Teichert Schwarzgruber was anticipated to be
completed in 2021, depending on market demand. The project would transfer the annual
production allotment from Teichert Esparto and Teichert Schwarzgruber to Teichert
Shifler when mining activities at Teichert Esparto and Teichert Schwarzgruber cease.
Appellants contend the baseline used in the EIR is inaccurate because it includes
emissions from Teichert Esparto and Teichert Schwarzgruber even though those
operations will cease on January 1, 2028, or when the maximum amount of removal is
reached. According to appellants, Teichert Esparto and Teichert Schwarzgruber permits
are tied to those locations only. Those arguments are nearly identical to comments to the
draft EIR submitted by the Sierra Club Yolano Group (the Yolano Group). The Yolano
Group asserted that the draft EIR did not properly analyze the impacts of criteria
pollutant and greenhouse gas emissions related to the applicable standards of
6
significance, a phrase appellants also use. The Yolano Group urged that emission
entitlements for Teichert Esparto and Teichert Schwarzgruber will expire in January 2028
and cannot be transferred. Yolo County responded that the draft EIR used existing
conditions as the environmental baseline and the existing conditions included emissions
from operations at the project site and Teichert Esparto, Teichert Schwarzgruber, and
Teichert Woodland. Yolo County said that in considering the project’s impacts, the EIR
accounted for the transfer of production tonnage, which was a component of the project,
and emissions from the transferred tonnage allotment.
B
Environmental baseline refers to the physical conditions at the site of a proposed
project. (Center for Biological Diversity v. Department of Fish & Wildlife (2015)
234 Cal.App.4th 214, 248 (Center for Biological Diversity).) Comparing the existing
physical conditions with the physical conditions predicted to exist after a proposed
project is implemented, a lead agency can determine whether the project may cause
environmental effects and whether those effects are significant under CEQA.
(Association of Irritated Residents v. Kern County Bd. of Supervisors (2017)
17 Cal.App.5th 708, 724 (Association of Irritated Residents).) If the description of the
environmental baseline is inaccurate, incomplete or misleading, the EIR cannot
adequately analyze the environmental impacts of the proposed project. (Cleveland
National Forest Foundation v. San Diego Assn. of Governments (2017) 17 Cal.App.5th
413, 439-440; see San Franciscans for Livable Neighborhoods v. City and County of San
Francisco (2018) 26 Cal.App.5th 596, 615.)
Typically, the baseline for environmental analysis is the existing conditions
of the environment at the time the notice of preparation is published, from both a local
and regional perspective. (Guidelines, §§ 15125, subd. (a), 15126.2, subd. (a);
Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013)
57 Cal.4th 439, 455; Center for Biological Diversity, supra, 234 Cal.App.4th at p. 249.)
7
Where environmental conditions vary over time, it is necessary to consider conditions
over a range of time. (San Francisco Baykeeper, Inc. v. State Lands Com. (2015)
242 Cal.App.4th 202, 217-218 [dredge mining of sand]; Pfeiffer v. City of Sunnyvale City
Council (2011) 200 Cal.App.4th 1552, 1570-1573 [traffic conditions]; see Communities
for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th
310, 327-328 (Communities for a Better Environment) [petroleum refinery production].)
“[A]n agency enjoys the discretion to decide, in the first instance, exactly how the
existing physical conditions without the project can most realistically be measured,
subject to review, as with all CEQA factual determinations, for support by substantial
evidence.” (Communities for a Better Environment, at p. 328.)
The draft EIR did not depart from the norm. Unlike the EIR in Communities for a
Better Environment, which used the maximum production authorized under existing
permits instead of actual production as the analytical baseline, the draft EIR in this case
used actual, existing criteria pollutants and greenhouse gas emissions as the baseline for
analyzing the project’s environmental impacts. (Communities for a Better Environment,
supra, 48 Cal.4th 310 at pp. 318, 322.) Inasmuch as the existing conditions at the time of
the notice of publication included emissions from agricultural activities at the project site,
processing at Teichert Esparto and Teichert Woodland, and mining activities at Teichert
Esparto and Teichert Schwarzgruber, it was proper for Yolo County to use those
emissions as the baseline for environmental analysis. (Guidelines, §§ 15125, subd. (a),
15126.2, subd. (a); Association of Irritated Residents, supra, 17 Cal.App.5th at p. 724
[stating that baseline measures the state of the environment absent the project].) The
draft EIR and Yolo County’s response to the comment by the Yolano Group provide
substantial evidence supporting the EIR’s identification of the existing physical
conditions for criteria pollutant and greenhouse gas emissions.
Appellants contend that the Teichert Esparto and Teichert Schwarzgruber permits
cannot be transferred. But appellants do not cite any legal authority for their assertion
8
and do not establish abuse of discretion on that basis. (Rialto, supra, 208 Cal.App.4th
at pp. 924-925 [stating that the party challenging the EIR bears the burden of proving
the EIR is inadequate]; Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045,
fn. 1 [holding that a contention not supported by any citation to authority is forfeited].)
In addition, although appellants claim the permits, agreements or entitlements for
Teichert Esparto and Teichert Schwarzgruber do not allow a transfer of emissions, the
portion of the record cited -- an e-mail from the Yolano Group to a Yolo County staff
member -- does not state facts supporting the claim.
II
Appellants next argue the EIR does not adequately address the potentially
significant impacts of an increase in methylmercury in the reclaimed lake.
The draft EIR and response to comments to the draft EIR explained that mercury
was present in the Cache Creek watershed because of mercury mining in the upper
watershed in and around Lake County and subsequent natural flood deposition
downstream, and the State of California and Yolo County had been closely monitoring
the mercury issue for decades. Yolo County disclosed that there was no substantive
human or wildlife health risk related to mercury in the soil, but there were concerns about
mercury in reclaimed lakes. As explained in the final EIR, approximately 91 acres of
mined land would be reclaimed to a lake.
Although the EIR did not explain what methylmercury is, how it is formed, or how
it bioaccumulates in fish, the EIR did describe what would be done to monitor, identify,
and respond to an increase in methylmercury in the reclaimed lake. According to the
draft EIR, the reclaimed lake must comply with specified regulations, including
requirements for monitoring mercury concentration in fish tissue, expanded analyses to
identify and assess potential factors linked to elevated methylmercury production and/or
bioaccumulation, and development of a lake management plan to be approved by the
County Administrator if results exceed specified thresholds. Potential methods to reduce
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mercury concentration in fish tissue could include the addition of oxygen to, or the
physical mixing of, anoxic bottom waters; the alteration of water chemistry; and the
removal or replacement of affected fish populations. The draft EIR stated that lake
management activities must include a recommendation for continued monitoring and
reporting and be appropriate to the phase of the operation. If activities under a lake
management plan do not demonstrate declining mercury levels, further specified
obligations would apply.
The response to comments to the draft EIR further explained that regulations
require ongoing monitoring of mercury levels in Cache Creek for comparison to
monitored mercury levels in reclaimed lakes, and fish in reclaimed lakes have been
monitored annually for methylmercury pursuant to those requirements. The response to
comments is part of the final EIR. (Guidelines, § 15362, subd. (b); Cleveland National
Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 516-517.)
Yolo County explained that if levels of concern are identified in fish from reclaimed
lakes, remedial actions will be required. The draft and final EIRs adequately address the
potential increase of methylmercury and its bioaccumulation in the reclaimed lake.
In addition, the record shows that the public was informed about the possible
increase in methylmercury and its bioaccumulation. A written staff report regarding the
project, prepared for a January 11, 2022 Board public meeting, described the presence of
mercury in the Cache Creek area, the monitoring and reporting requirements of the Cache
Creek Area Plan, and the problem of methylmercury in reclaimed lakes. During the
meeting, Yolo County staff member Elisa Sabatini reported on mercury monitoring as
part of the Cache Creek Area Plan and available remedial actions if methylmercury in
lake fish exceeds ambient levels in the watershed. Sabatini also described the results of
various studies relating to mercury and the status of required Cache Creek Area Plan
actions. Dr. Darell Slotton, an expert on mercury bioaccumulation and a consulting
expert on the Cache Creek Area Plan, also provided information to the Board about
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methylmercury and bioaccumulation of mercury in fish. He explained how mercury is
converted into methylmercury and how methylmercury enters the food chain and
becomes concentrated as it moves up the food chain and into fish. He explained the
findings from analyses of fish samples across the Cache Creek watershed, the monitoring
of off-channel mining ponds in the Cache Creek area, findings from monitoring data, and
how the findings triggered expanded testing at three pond sites. Dr. Slotton responded to
questions and concerns from board members, including a concern that methylmercury
was a potent neurotoxin that adversely affected neurological development in children.
Dr. Slotton and a County staff member explained that removal of fish and filling of
reclaimed ponds were possible solutions if a management plan did not adequately
remediate a methylmercury problem.
Appellants cite reports by Dr. Slotton and Shaun Ayers about fish mercury testing
at certain off-channel, wet-pit mining ponds in the Cache Creek area that did not involve
the Teichert Shifler site, and appellants criticize the EIR for not discussing those reports.
But the 2020 Slotton-Ayers report concluded that a realistic mitigation approach to
methylmercury production could not be developed without site-specific information, and
the draft EIR explained that the reclaimed lake for the project would not exist until after
mining at Teichert Shifler ceased.
The party challenging an EIR must show an error that misled the agency or
the public, understated a problem, or caused other prejudice. (Al Larson, supra,
18 Cal.App.4th at pp. 748-749.) Appellants have not shown how omission of
information from the Slotton-Ayers reports misled decision makers or the public and
precluded informed decision making and public participation as to the project.
Appellants have not made the required showing with regard to omission of the Slotton-
Ayers reports.
The contention regarding methylmercury in the reclaimed lake lacks merit.
11
III
Appellants also contend that substantial evidence does not support the mitigation
measure 4.2-1(a) conclusion that 113 acres of prime farmland, equivalent in quality and
capacity to existing prime farmland permanently converted as a result of the project, will
be reclaimed.
A significant portion of the project site is designated as prime farmland.
The project includes activities to reclaim a portion of the mined area to agricultural uses.
However, the draft EIR recognized that impacts related to the conversion of prime
farmland to mining uses would be significant and unavoidable.
When an EIR identifies significant effects on the environment that would occur
if a project is approved or carried out, the EIR must describe feasible measures that could
minimize the significant effects. (§ 21100, subd. (b)(3); Guidelines, § 15126.4,
subd. (a)(1); see § 21081, subd. (a); Guidelines, § 15091, subd. (a).) And the public
agency must mitigate or avoid the significant effects the project would have on the
environment. (§ 21002.1, subd. (b).) We review for substantial evidence an agency’s
conclusion that the mitigation measures identified in an EIR will reduce the adverse
effects of the project. (Laurel Heights Improvement Assn., supra, 47 Cal.3d at p. 407;
King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 866;
Habitat & Watershed Caretakers, supra, 213 Cal.App.4th at p. 1306.)
Appellants appear to contend that mitigation measure 4.2-1 requires the soils in
mined areas to be reclaimed to the quality and capacity of pre-mining, prime-farmland
soils. The mitigation measure does not specifically reference soil condition, but it does
require Teichert to reclaim 113.2 acres “of Prime Farmland onsite, equivalent in quality
and capacity to existing Prime Farmland permanently converted as a result of the
project.” The draft EIR stated the reclamation plan for the project requires reclaimed
agricultural land to have productivity that is equal to or greater than existing productivity.
As explained in the draft and final EIR, the Surface Mining Reclamation Ordinance,
12
which is part of the regulations that implement the Cache Creek Area Plan, requires
“all off-channel, prime agricultural land . . . at the time that mining commences . . . [to]
be reclaimed to an agriculturally productive state equal to or greater than that which
existed before mining commenced.” Moreover, under the Surface Mining and
Reclamation Act (SMARA [§ 2710 et seq.]) Performance Standards for Prime
Agricultural Land Reclamation, “[r]eclamation shall be deemed complete when
productive capability of the affected land is equivalent to or exceeds, for two
consecutive crop years, that of the premining condition or similar crop production
in the area.” (Cal. Code of Regs., tit. 14, § 3707, subd. (c).)
Substantial evidence supports Yolo County’s finding that mitigation measure 4.2-1
would mitigate impacts on agricultural resources. The Agricultural Reclamation
Feasibility Study, which is appended to the final EIR, concludes that with the application
of irrigation and fertilization practices commonly used in the region, yields from the
reclaimed agricultural land could reasonably be expected to meet regulatory performance
criteria, based on soil survey data and analysis of soils, monitoring of soil temperatures at
various sites, and crop production and value data. That conclusion is supported by the
report of expert Greg House, which was discussed in the final EIR.
House reported that results from his study of three reclaimed agricultural fields
showed those fields met the SMARA two-year standard of productivity, provided strong
indications that they would meet the standard soon, or demonstrated that the required
standard could be achieved. House stated that crops grown on reclaimed agricultural land
could reach desired productivity standards.
The House report and the Agricultural Reclamation Feasibility Study provide
substantial evidence supporting the goal in mitigation measure 4.2-1. (Oakland Heritage
Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 903-904.)
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IV
Appellants further challenge the award to the County of record preparation costs.
They contend the County cannot recover those costs because appellants elected to prepare
the record pursuant to section 21167.6, subdivision (b)(2). They also argue the amount of
the award is excessive and not supported by documentation.
A
The interpretation of section 21167.6, and whether a claimed cost is recoverable,
are questions of law which we review de novo. (Coalition for Adequate Review v. City
and County of San Francisco (2014) 229 Cal.App.4th 1043, 1050-1051 (Coalition for
Adequate Review).)
Section 21167.6 governs the preparation and certification of the administrative
record in a CEQA case. Subdivision (b)(2) of the statute authorizes a writ petitioner to
elect to prepare the administrative record instead of asking the public agency to prepare
it. (§ 21167.6.) But here, appellants asked Yolo County to produce the documents
comprising the administrative record. The administrative record consists of 29,745
pages. In addition, the public agency must certify the accuracy of the administrative
record within the time period described in subdivision (b)(1). (§ 21167.6, subd. (b)(2).)
Because section 21167.6, subdivision (b)(2) refers to subdivision (b)(1), the two must be
read together. (Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1055.)
Section 21167.6, subdivision (b)(1) addresses the payment of costs. (Coalition for
Adequate Review, at pp. 1052, 1058; see generally Black Historical Society v. City of San
Diego (2005) 134 Cal.App.4th 670, 677.) That appellants elected to prepare the record
under section 21167.6, subdivision (b)(2) did not mean the County had no costs
associated with preparation of the administrative record, and it did not preclude an award
of record preparation costs to the County. (Landwatch San Luis Obispo County v.
Cambria Community Services Dist. (2018) 25 Cal.App.5th 638, 642-644; Coalition for
14
Adequate Review, at p. 1055; St. Vincent’s School for Boys, Catholic Charities CYO v.
City of San Rafael (2008) 161 Cal.App.4th 989, 1016-1017 (St. Vincent’s).)
In general, and except as otherwise provided by statute, a prevailing party is
entitled to recover costs. (Civ. Proc. Code, § 1032, subd. (b); see Chaparral Greens v.
City of Chula Vista (1996) 50 Cal.App.4th 1134, 1151-1152.) Appellants do not dispute
that the County prevailed in the writ proceeding. Section 21167.6 does not provide that a
public agency prevailing in a CEQA action may not recover reasonable costs associated
with the preparation of the administrative record that were actually incurred.
Code of Civil Procedure section 1094.5, referenced in the writ petition, further
provides that except when otherwise prescribed by statute, the cost of preparing the
record shall be borne by the petitioner. (Code Civ. Proc., § 1094.5, subd. (a).) If an
expense associated with preparation of the record has been borne by the prevailing party,
the expense shall be recoverable as costs. (Code Civ. Proc., § 1094.5, subd. (a); The Otay
Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, 68-72 (The Otay Ranch,
L.P.).) Under section 21167.6 and Code of Civil Procedure sections 1032 and 1094.5,
appellants must pay any reasonable costs the County actually incurred associated with the
preparation of the administrative record.
Appellants also challenge the cost award on the ground that Yolo County
produced administrative record documents pursuant to a Public Records Act request and
there is no basis for the recovery of staff and consultant time associated with that
production. But the court in St. Vincent’s rejected a similar attempt to avoid payment of
costs. (St. Vincent’s, supra, 161 Cal.App.4th at p. 1019, fn. 9.)
B
Appellants further urge that the amount of the cost award is excessive and not
supported by documentation.
Labor costs incurred to prepare an administrative record is recoverable under
section 21167.6, subject to trial court review for necessity and reasonableness. (Code
15
Civ. Proc., § 1033.5, subd. (c); The Otay Ranch, L.P., supra, 230 Cal.App.4th at pp. 68-
70; Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1059; River Valley
Preservation Project v. Metropolitan Transit Dev. Bd. (1995) 37 Cal.App.4th 154, 182.)
A verified memorandum of costs is prima facie evidence of the necessity and
reasonableness of cost items that appear to be proper charges on their face. (Jones v.
Dumrichob (1998) 63 Cal.App.4th 1258, 1266-1267 (Jones).) A party need not provide
copies of bills or other documents with the memorandum of costs. (Id. at p. 1267.)
Where a statute expressly allows a cost item and the cost appears proper on its face, the
party seeking to tax costs must demonstrate that the challenged cost was unnecessary or
unreasonable. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131; County of Kern v.
Ginn (1983) 146 Cal.App.3d 1107, 1113-1114.)
The County sought an award of $3,813.45 in costs associated with preparation of
the administrative record. That amount consisted of the following staff time and other
charges: Natural Resources Manager Elisa Sabatini (3 hours at $130.90/hour); Lead
Consultant Heidi Tschudin (6.75 hours at $229/hour); Legal Secretary Stephanie
Richburg (6.5 hours at $100/hour); Legal Secretary Kendra Ledoux (7 hours at
$100/hour); and AmeriTechnology Group for e-mail conversion ($525). Appellants
did not show how the claimed costs were excessive, such as by showing that the number
of hours or the hourly rates were unreasonable. Appellant’s motion to tax costs was
insufficient to rebut the County’s prima facie showing. (Jones, supra, 63 Cal.App.4th
at p. 1266.)
As we have explained, appellants asked Yolo County to produce the documents
comprising the administrative record. The administrative record consists of 29,745
pages. The staff and consultant time and costs incurred to produce an administrative
record of that size (23.25 hours; 13 cents per page) is not unreasonable. Appellants did
not meet their initial burden on the motion, and Yolo County was not required to submit
16
supporting documents in that circumstance. (Jones, supra, 63 Cal.App.4th at p. 1267.)
Appellants have not shown that the awarded amount was unsupported or unreasonable.
DISPOSITION
The judgment, and the order denying appellants’ motion to tax costs, are affirmed.
The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/S/
MAURO, J.
We concur:
/S/
EARL, P. J.
/S/
MESIWALA, J.
17
Filed 10/3/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
YOLO LAND AND WATER DEFENSE et al.,
Plaintiffs and Appellants, C099086
v. (Super. Ct. No. CV2022-0277)
COUNTY OF YOLO et al., ORDER MODIFYING
OPINION AND GRANTING
Defendants and Respondents; REQUESTS FOR
PUBLICATION
TEICHERT INC.,
[NO CHANGE IN
Real Party in Interest and Respondent. JUDGMENT]
APPEAL from a judgment of the Superior Court of Yolo County, David
Rosenberg, Judge. Affirmed.
Law Office of Donald B. Mooney and Donald B. Mooney, for Plaintiffs and
Appellants.
Philip J. Pogledich and Eric May, County Counsel; Downey Brand, Andrew M.
Skanchy and Samuel D. Bacal-Graves, for Defendants and Respondents.
Taylor, Wiley & Keasling, John M. Taylor, Jesse J. Yang, Matthew S. Keasling,
and Marissa C. Fuentes, for Real Party in Interest and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of the Standard of Review section, and parts I through
III and IV.B of the Discussion.
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THE COURT:
It is ordered that the opinion filed in this case on September 13, 2024, be modified
as follows:
On page 2, delete the last paragraph beginning with “We conclude” and replace with the
following paragraphs:
In the unpublished portion of this opinion, we conclude (1) it was proper for the
EIR to use existing conditions as the baseline for environmental analysis, and substantial
evidence supports Yolo County’s determination of the existing conditions; (2) the EIR
adequately addressed the potentially significant impacts of the potential for an increase in
methylmercury in the reclaimed lake; (3) substantial evidence supports the goal in
mitigation measure 4.2-1 to reclaim mined land to a state equivalent in quality and
capacity to existing prime farmland; and (4) as to the second part of appellants’ fourth
contention, appellants have not shown that the awarded amount was unsupported or
unreasonable.
In the published portion of this opinion, we address the first part of appellants’
fourth contention and conclude it was proper to award the County costs for preparation of
the administrative record.
On page 14, part IV of the Discussion, first full paragraph, first sentence, remove the
word “further” so that the sentence now reads:
Appellants challenge the award to the County of record preparation costs.
This modification does not change the judgment.
The opinion in the above-entitled matter filed on September 13, 2024, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.
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FOR THE COURT:
/S/
MAURO, Acting P. J.
/S/ ,
MESIWALA, J.
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