Keep 70 Safe v. Dept. of Transportation CA3

Filed 1/30/23 Keep 70 Safe v. Dept. of Transportation 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
KEEP 70 SAFE, C095543
Plaintiff and Appellant, (Super. Ct. No. CV PT 20-
00779)
v.
DEPARTMENT OF TRANSPORTATION,
Defendant and Respondent.
California’s Department of Transportation (Caltrans) approved a project to
improve 9.6 miles of State Route 70 (SR 70) in Yuba County by adding, among other
things, continuous passing lanes in both directions. Keep 70 Safe, an unincorporated
association of area residents, challenged the project under the California Environmental
Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq. 1 ), first in federal court, and
1 Undesignated statutory references are to the Public Resources Code.
1
then in the Yuba County Superior Court. After overruling Caltrans’s demurrer, which
sought dismissal of the action for failure to file in the appropriate forum within the
applicable statute of limitations, the trial court ruled in Caltrans’s favor on the merits and
denied Keep 70 Safe’s petition for writ of mandate, concluding “that the environmental
review of the project was not improperly ‘piecemealed’; that the [environmental impact
report] properly determined, supported by substantial evidence, that the project would not
result in significant impacts; that the [environmental impact report] included a reasonable
range of alternatives; and that [Keep 70 Safe] failed to meet its burden to show that the
[environmental impact report] is inadequate.”
Keep 70 Safe challenges each of these conclusions on appeal. Caltrans defends
the trial court’s ruling and also renews its statute of limitations defense. 2 We affirm. As
we shall explain, while Keep 70 Safe’s CEQA action is not time-barred, the trial court
correctly denied the petition for writ of mandate on the merits. In reaching the latter
conclusion, we reject Keep 70 Safe’s specific arguments that unlawful piecemealing
occurred, that the EIR did not consider an adequate range of alternatives, that Caltrans
was procedurally required to make certain specific findings and commit to various
mitigation measures because the final environmental impact report (EIR) found
significant impacts to the environment, and that substantial evidence does not support the
EIR’s findings of no significant impact to the environment in seven specific respects.
2 Caltrans has also moved to strike portions of the appellant’s appendix,
specifically, a declaration from Keep 70 Safe’s attorney and exhibits attached thereto,
which was filed in the trial court along with Keep 70 Safe’s opposition to Caltrans’s
demurrer to the writ petition. We deny the motion. We also deny Caltrans’s application
to file a reply to Keep 70 Safe’s opposition to this motion. Finally, we further deny
Caltrans’s motion to strike portions of Keep 70 Safe’s reply brief. We note, however,
that new arguments raised in the reply brief are not properly before this court and shall
not be discussed in this opinion.
2
BACKGROUND
We begin with a general overview of Caltrans’s approval of the project and then
describe the present lawsuit, reserving the more technical details of the project for our
discussion of Keep 70 Safe’s substantive challenges under CEQA, and also reserving the
specific facts of Keep 70 Safe’s foray into federal court for our discussion of the statute
of limitations.
Approval of the Project
SR 70 is a north-south transportation corridor in the eastern Sacramento Valley
that begins roughly 14 miles north of the City of Sacramento, at its juncture with State
Route 99 (SR 99), continues north through the cities of Marysville and Oroville, then
continues northeast through the Lake Oroville State Recreation Area and Lassen National
Forest, then southeast through Plumas National Forest, and ultimately terminates at its
junction with U.S. Highway 395 on the eastern side of the Sierra Nevada mountains.
The segment of SR 70 comprising the project in this case is a 9.6-mile span of
rural highway north of Marysville, from Laurellen Road to Honcut Creek Bridge. Plans
to improve this segment of highway were included in a 2014 transportation concept
report (TCR), which proposed several projects for the purpose of “improving [SR 70] to
freeway and expressway standards along some segments, and maintaining conventional
highway standards along others.” With respect to the segment at issue in this case, the
report notes that “agricultural land predominates along the route” and is “interspersed
with rural, low-density residential development.”3 The road itself “is a two-lane
conventional highway” with driveway access for various farms and residences along the
3 The project roughly corresponds to segment 8 described in the TCR. Segment 8
begins at post mile (PM) 15.35 and ends at PM 25.822, whereas the project begins at PM
16.2 and ends at PM 25.8. Thus, segment 8 extends about a mile further south into
Marysville.
3
route. The TCR recommended improving this segment “by constructing passing lanes
and center two-way left turn lane” in order to improve operational conditions from level
of service (LOS) E, which “falls below the minimum acceptable LOS D for a rural area,”
to LOS A, “represent[ing] the best operating conditions wherein there is ample
maneuverability without speed restriction or delay.”
In February 2020, Caltrans gave notice that it would be preparing a draft EIR for
the project.4 The draft EIR, prepared the following month, explained that the project’s
purpose was “to achieve the ultimate facility as outlined in the 2014 [TCR].” The draft
EIR analyzes two build alternatives, alternative 1 and alternative 2, as well as a no project
alternative. The existing roadway consisted of two 12-foot lanes with shoulder widths of
no more than eight feet. A separate safety project was already scheduled for
construction, which would add a 14‑foot two-way left turn lane, designated turn pockets
at county roads, and several opportunities for slow moving vehicles to pull over in each
direction. Both build alternatives would “construct an additional 12-foot lane with an
8‑foot shoulder to achieve a continuous passing lane in each direction throughout the
project limits.” They would also include a clear recovery zone (CRZ) with “a minimum
width of 20 feet” and “side slopes of 4:1 or flatter,” requiring the removal of any trees,
utility poles, or other obstructions along the route. Roadside ditches would also be
constructed outside the CRZ. For alternative 1, however, the safety project’s two-way
left turn lane would be retained, “resulting in a five-lane facility.” For alternative 2, that
4 In the meantime, two project study reports were prepared (in 2015 and 2019,
respectively) for various proposed safety improvements on SR 70, including “two
standard 12-foot lanes, 8-foot shoulders[,] a [two-way left turn lane] where feasible, left-
turn pockets at all county-maintained roads, and a 20-[foot clear recovery zone],” as well
as a 2019 safety assessment report, “conclud[ing] that an additional reduction of
approximately 34 percent . . . for fatality and injury collisions could be expected with the
conversion from a 3-lane to a 5-lane cross section based on the comparison of similar
sites.”
4
left turn lane would not be retained, and would instead be a 14-foot median with a
concrete barrier dividing the two lanes of travel in each direction. Thus, under this
alternative, “[v]ehicles entering the highway from homes and businesses would only be
able to turn right onto SR 70,” with designated locations “to accommodate out of
direction travel.”
The draft EIR was circulated to the public on April 1, 2020. During the public
comment period, Keep 70 Safe submitted a comment letter arguing that the draft EIR
improperly separated the current project from several other SR 70 improvement projects
that “were intended to be carried out together” and therefore did not “take into account
the ‘whole of the action.’ ” The comment letter also argued, among other things, that the
draft EIR failed to analyze a reasonable range of alternatives, and failed to adequately
disclose, analyze, and mitigate various significant environmental impacts.
The final EIR, including a determination “that Alternative 1 will have no
significant impact on the human environment,” was issued on July 16, 2020. Five days
later, Caltrans filed a notice of determination stating, among other things, that the project
would have no significant impact on the environment, an EIR was prepared, mitigation
measures were not made a condition of project approval, and findings were not made
pursuant to CEQA.
The Present Lawsuit
On October 23, 2020, Keep 70 Safe filed the present lawsuit, seeking a writ of
mandate compelling Caltrans to vacate its certification of the final EIR and approval of
the project. Keep 70 Safe renewed its claims of improper piecemealing and failure to
analyze a reasonable range of alternatives. Keep 70 Safe also argued Caltrans failed to
make required findings or incorporate mitigation measures into the project when the final
EIR “relied upon mitigation of potential impacts to aesthetics, cultural resources,
geology, hazardous materials, hydrology and water quality, transportation, and
emergency response to determine that the Project could have a less than significant
5
impact.” Finally, Keep 70 Safe argued the final EIR inadequately analyzed potential
impacts to hydrology, water quality, and transportation, resulting in insufficient evidence
to support Caltrans’s determinations that the project would not significantly impact the
environment in these areas.
In response, Caltrans argued it did not improperly piecemeal its environmental
review of the project, substantial evidence supports its determinations of no significant
impact in the areas of cultural resources, aesthetics, transportation and emergency
services, hazardous materials, geology, hydrology and water quality, and biological
resources, and the EIR included a reasonable range of alternatives.
The trial court denied the petition, concluding “that the environmental review of
the project was not improperly ‘piecemealed’; that the EIR properly determined,
supported by substantial evidence, that the project would not result in significant impacts;
that the EIR included a reasonable range of alternatives; and that [Keep 70 Safe] failed to
meet its burden to show that the EIR is inadequate.”
Judgment was entered in Caltrans’s favor on October 22, 2021. This appeal
followed.
DISCUSSION
I
CEQA Overview and Standard of Review
“With narrow exceptions, CEQA requires an EIR whenever a public agency
proposes to approve or to carry out a project that may have a significant effect on the
environment. [Citations.] ‘Project’ means, among other things, ‘[a]ctivities directly
undertaken by any public agency.’ [Citation.] ‘ “Significant effect on the environment”
means a substantial, or potentially substantial, adverse change in the environment.’
[Citations.] The Legislature has made clear that an EIR is ‘an informational document’
and that ‘[t]he purpose of an environmental impact report is to provide public agencies
and the public in general with detailed information about the effect which a proposed
6
project is likely to have on the environment; to list ways in which the significant effects
of such a project might be minimized; and to indicate alternatives to such a project.’
[Citations.]” (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 390-391, fns. omitted (Laurel Heights).)
“The EIR is the primary means of achieving the Legislature’s considered
declaration that it is the policy of this state to ‘take all action necessary to protect,
rehabilitate, and enhance the environmental quality of the state.’ [Citation.] The EIR is
therefore ‘the heart of CEQA.’ [Citations.] An EIR is an ‘environmental “alarm bell”
whose purpose it is to alert the public and its responsible officials to environmental
changes before they have reached ecological points of no return.’ [Citations.] The EIR is
also intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact,
analyzed and considered the ecological implications of its action.’ [Citations.] Because
the EIR must be certified or rejected by public officials, it is a document of
accountability. If CEQA is scrupulously followed, the public will know the basis on
which its responsible officials either approve or reject environmentally significant action,
and the public, being duly informed, can respond accordingly to action with which it
disagrees. [Citations.] The EIR process protects not only the environment but also
informed self-government.” (Laurel Heights, supra, 47 Cal.3d at p. 392.)
Our review of Caltrans’s compliance with CEQA in this case “ ‘extend[s] only to
whether there was a prejudicial abuse of discretion.’ [Citation.] Such an abuse is
established ‘if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.’ [Citations.]”
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 426-427, fn. omitted (Vineyard).) “Judicial review of these two types of
error differs significantly: While we determine de novo whether the agency has
employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated
CEQA requirements’ [citation], we accord greater deference to the agency’s substantive
7
factual conclusions. In reviewing for substantial evidence, the reviewing 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,’ for, on factual questions, our task ‘is not to
weigh conflicting evidence and determine who has the better argument.’ [Citation.]” (Id.
at p. 435.)
“Whether an EIR has omitted essential information is a procedural question
subject to de novo review.” (Banning Ranch Conservancy v. City of Newport Beach
(2017) 2 Cal.5th 918, 935.) However, we do not “ ‘pass upon the correctness of the
EIR’s environmental conclusions, but only upon its sufficiency as an informative
document.’ [Citation.] [¶] This standard of review is consistent with the requirement
that the agency’s approval of an EIR ‘shall be supported by substantial evidence in the
record.’ [Citation.] In applying the substantial evidence standard, ‘the reviewing court
must resolve reasonable doubts in favor of the administrative finding and decision.’
[Citation.] The Guidelines[5] define ‘substantial evidence’ as ‘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.’
[Citation.]” (Laurel Heights, supra, 47 Cal.3d at pp. 392-393.)
Finally, we review “the agency’s action, not the trial court’s decision; in that sense
appellate judicial review under CEQA is de novo. [Citations.] We therefore resolve the
substantive CEQA issues . . . by independently determining whether the administrative
record demonstrates any legal error by [Caltrans] and whether it contains substantial
evidence to support [Caltrans’s] factual determinations.” (Vineyard, supra, 40 Cal.4th at
p. 427.)
5 References to “Guidelines” are to the State CEQA Guidelines, which implement
the provisions of CEQA. (Cal. Code Regs., tit. 14, § 15000 et seq.)
8
II
Statute of Limitations
We first address Caltrans’s assertion that this action is time-barred. As a
preliminary matter, this issue is properly before us notwithstanding the fact that Caltrans
did not file a cross-appeal. “ ‘As a general rule, respondents who fail to file a cross-
appeal cannot claim error in connection with the opposing party’s appeal. [Citation.] A
limited exception to this rule is provided by [Code of Civil Procedure] section 906, which
states in pertinent part: “The respondent . . . may, without appealing from [the]
judgment, request the reviewing court to and it may review any of the foregoing
[described orders or rulings] for the purpose of determining whether or not the appellant
was prejudiced by the error or errors upon which [the appellant] relies for reversal or
modification of the judgment from which the appeal is taken.” ’ ” (Khorsand v. Liberty
Mutual Fire Ins. Co. (2018) 20 Cal.App.5th 1028, 1034.) If, as Caltrans argued below,
Keep 70 Safe’s action is barred by the statute of limitations, it necessarily suffered no
prejudice from the trial court’s denial of the writ petition on the merits. (See, e.g.,
Westinghouse Electric Corp. v. County of Los Angeles (1982) 129 Cal.App.3d 771, 781
[respondent county allowed to complain of trial court’s ruling on issue of standing].)
A.
Additional Background
The notice of determination in this case was filed on July 21, 2020. On August
20, 2020, Keep 70 Safe filed an action in federal court challenging Caltrans’s approval of
the project under CEQA and the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. § 4321 et seq.).
On September 30, 2020, attorneys for Caltrans met with Keep 70 Safe’s attorney
and informed him of Caltrans’s intent to move to dismiss the lawsuit. With respect to the
CEQA claims, Caltrans attorneys cited Raygor v. Regents of the Univ. of Minn. (2002)
534 U.S. 533 (Raygor), and explained that “supplemental jurisdiction . . . does not extend
9
against the state, state agencies, and state officials, when the state has not clearly
consented to federal courts adjudicating the state law claim against the state . . . .” The
promised motion to dismiss was filed on October 9, 2020. Rather than file an opposition
to the motion, Keep 70 Safe amended the federal pleading to omit the CEQA claims and
filed the present lawsuit in state court on October 23, 2020.
Caltrans’s demurrer on statute of limitations grounds was overruled. Although the
30-day period of limitations, extended by a “Covid emergency rule,” expired on
September 2, 2020, the trial court applied the doctrine of equitable tolling. The trial court
concluded Keep 70 Safe’s “filing of the federal case was not unreasonable or in bad
faith,” even though the Eleventh Amendment entitled Caltrans to dismissal of the CEQA
claims, because Caltrans had consented to supplemental federal court jurisdiction over
CEQA claims in the past. It was also reasonable, the trial court concluded, for Keep 70
Safe to wait until October 23 to dismiss the CEQA claims from the federal lawsuit and
file the present lawsuit because Caltrans “may have decided to change its mind” and
Keep 70 Safe “was entitled to use the time allowed by the federal rules to file an
opposition to thoroughly research the question.” Finally, the trial court concluded
Caltrans suffered no prejudice from the delay in filing the lawsuit in state court.
B.
Analysis
“Statutes of limitations are designed ‘to prevent stale claims, give stability to
transactions, protect settled expectations, promote diligence, encourage the prompt
enforcement of substantive law, and reduce the volume of litigation.’ [Citation.]”
(Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47
Cal.App.5th 368, 378.)
“CEQA ‘provides “unusually short” limitations periods [citation] after which
persons may no longer mount legal challenges, however meritorious, to actions taken
under the Act’s auspices.’ [Citation.]” (Committee for Sound Water & Land
10
Development v. City of Seaside (2022) 79 Cal.App.5th 389, 400 (City of Seaside).) The
limitations period for an action “alleging that a public agency has improperly determined
whether a project may have a significant effect on the environment,” or “alleging that an
[EIR] does not comply with [CEQA],” is 30 days from the date of the filing of the notice
of determination. (§ 21167, subds. (b), (c).) “A bright-line rule that the filing of [a]
[notice of determination] triggers a 30-day statute of limitations promotes certainty,
allowing local governments and developers to proceed with projects without the threat of
potential future litigation.” (Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 50 (Committee for Green Foothills).)
Here, however, while the 30-day limitations period would have commenced on the
date of the filing of the notice of determination, July 21, 2020, an emergency rule adopted
by the Judicial Council in response to the coronavirus disease 2019 (COVID-19)
pandemic effectively tolled the statute of limitations until August 3, 2020. 6 (City of
6 “On March 4, 2020, Governor Gavin Newsom declared a state of emergency as a
result of the threat of COVID-19, and on March 19, 2020, issued an executive order
directing all Californians not providing essential services to stay home. [Citation.] The
order did not close the courts, which provide an essential service. [Citation.] [¶] On
March 23, 2020, Chief Justice Tani G. Cantil-Sakauye, pursuant to her authority under
the California Constitution, article VI, section 6, and Government Code section 68115,
issued an order authorizing superior courts to adopt proposed local rules or local rule
amendments to address the impact of the COVID-19 pandemic to take effect
immediately, without advance circulation for 45 days of public comment. [Citation.] [¶]
On March 27, 2020, the Governor issued Executive Order No. N-38-20, which
‘suspended any limitations in Government Code section 68115 or any other provision of
law that limited the Judicial Council’s ability to issue emergency orders or rules, and
suspended statutes that may be inconsistent with rules the Judicial Council may adopt.’
[Citation.] [¶] Acting on that authority, on April 6, 2020, the Judicial Council adopted 11
emergency rules.” (E.P. v. Superior Court (2020) 59 Cal.App.5th 52, 54-55, fn. omitted.)
“As originally adopted on April 6, 2020, Emergency rule 9 tolled all statutes of limitation
for civil causes of action until 90 days after the Governor declared that the state of
emergency related to the COVID-19 pandemic is lifted. [Citation.] The Judicial Council
subsequently received comments regarding the impact of Emergency rule 9 on CEQA
11
Seaside, supra, 79 Cal.App.5th at pp. 401-402.) Thus, the 30-day limitations period
started on that date, and as the trial court correctly calculated, the last day to timely file a
lawsuit within the limitations period was September 2, 2020.
Keep 70 Safe’s action in federal court was filed on August 20, 2020, within the
limitations period, but its action in state court was filed on October 23, 2020, well outside
it, unless the doctrine of equitable tolling applies to toll the limitations period while the
case was pending in federal court.
Caltrans argues the trial court erred in applying this doctrine because (1) “the
legislative intent and public policy reasons for the short statute of limitations in CEQA
prohibit the application of equitable tolling,” and (2) “filing the CEQA claims in federal
court was unreasonable” and Keep 70 Safe “delayed initiating this action after any
possible equitably tolled period.” We are not persuaded.
1.
Applicability of Equitable Tolling to CEQA Generally
“Equitable tolling is a ‘judicially created, nonstatutory doctrine’ that ‘ “suspend[s]
or extend[s] a statute of limitations as necessary to ensure fundamental practicality and
fairness.” ’ [Citation.] The doctrine applies ‘occasionally and in special situations’ to
‘soften the harsh impact of technical rules which might otherwise prevent a good faith
litigant from having a day in court.’ [Citation.] Courts draw authority to toll a filing
actions, as stated in the Circulating Order: ‘Shortly after adoption of the rule, the Judicial
Council began receiving comments that raised issues concerning the application of the
amended rule to actions brought under [CEQA], which has particularly short deadlines,
generally 30 or 35 days.’ [Citation.] [¶] Thereafter, the Judicial Council amended
Emergency rule 9 by adopting, among other things, subdivision (b), effective May 29,
2020, as follows: ‘Tolling statutes of limitations for civil causes of action [¶] . . . [¶]
(b) Tolling statutes of limitations of 180 days or less [¶] Notwithstanding any other law,
the statutes of limitations and repose for civil causes of action that are 180 days or less
are tolled from April 6, 2020, until August 3, 2020.’ [Citation.]” (City of Seaside, supra,
79 Cal.App.5th at pp. 401-402, fn. omitted.)
12
deadline from their inherent equitable powers—not from what the Legislature has
declared in any particular statute. [Citation.] For that reason, we presume that statutory
deadlines are subject to equitable tolling.” (Saint Francis Memorial Hospital v. State
Dept. of Public Health (2020) 9 Cal.5th 710, 719-720 (Saint Francis).)
For example, in Addison v. State of California (1978) 21 Cal.3d 313 (Addison), the
plaintiffs filed an action in federal court against the State of California and Santa Clara
County, alleging both a federal civil rights violation and three state law tort causes of
action, within the six-month limitations period for bringing such actions. (Id. at pp. 315-
317.) When the defendants moved to dismiss the federal court action for lack of
jurisdiction, the plaintiffs, “anticipating an adverse ruling on the motion, filed their
complaint in the present [state court] action,” outside that six-month time period. (Id. at
p. 317.) Our Supreme Court applied the doctrine of equitable tolling and concluded the
limitations period was suspended while the federal court action was pending. (Id. at
pp. 315, 321.) The court explained that “the doctrine of equitable tolling requires timely
notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on
the part of the plaintiff.” (Id. at p. 319.) With respect to the latter requirement, the court
explained: “As noted, the federal court, without prejudice, declined to assert jurisdiction
over a timely filed state law cause of action and plaintiffs thereafter promptly asserted
that cause in the proper state court. Unquestionably, the same set of facts may be the
basis for claims under both federal and state law. We discern no reason of policy which
would require plaintiffs to file simultaneously two separate actions based upon the same
facts in both state and federal courts since ‘duplicative proceedings are surely inefficient,
awkward and laborious.’ [Citations.]” (Ibid.) With respect to notice, the court explained
that the timely federal court action provided the defendants with notice and an
opportunity to gather evidence and prepare a defense. Finally, defendants suffered no
prejudice because the state court action “was filed within one week of the dismissal of the
federal suit.” (Ibid.)
13
However, our Supreme Court has also explained that the doctrine of equitable
tolling “ ‘is not immune’ from the operation of statutes,” and courts “may conclude that
explicit statutory language or a manifest policy underlying a statute simply cannot be
reconciled with permitting equitable tolling, ‘even in the absence of an explicit
prohibition.’ ” (Saint Francis, supra, 9 Cal.5th at p. 720.) In Saint Francis, the court
applied the doctrine to Government Code section 11523’s 30-day statute of limitations
for seeking writs of administrative mandate. (Saint Francis, at p. 717.) The court found
no indication in either the operative language of the statute (“the petition shall be filed
within 30 days after the last day on which reconsideration can be ordered” (Gov. Code,
§ 11523)), or in the short length of the limitations period, that the Legislature intended
“to forbid the availability of equitable tolling.” (Saint Francis, at p. 720.) With respect
to the latter point, the court stated: “A 10-year statute of limitations, we’ve reasoned, is
‘so “exceptionally long” ’ that it ‘indicates the Legislature’s effort to provide, within the
strict statutory period itself, a reasonable time to’ file suit. [Citation.] But [Government
Code] section 11523’s 30-day limitations period is relatively brief, so it carries with it no
such inference.” (Ibid.) After rejecting two specific arguments raised by the respondent,
the court concluded: “A requirement that parties seek judicial review within 30 days . . .
doesn’t prohibit courts’ exercise of their equitable powers to toll that limitations period
when justice so requires.” (Id. at p. 721.) The court also found no “ ‘clear intent’ ” in the
legislative history “that equitable tolling ought not be available under [Government
Code] section 11523.” (Id. at p. 722.)
Here, as in Saint Francis, Caltrans has not pointed to any specific statutory
language or manifest policy underlying CEQA that would preclude operation of the
doctrine of equitable tolling. To be sure, as our colleagues at the First Appellate District
acknowledged in Salmon Protection & Watershed Network v. County of Marin (2012)
205 Cal.App.4th 195 (Salmon Protection), “there is a strong public policy, recognized in
numerous decisions, favoring the prompt disposition of CEQA challenges.” (Id. at
14
p. 201; see also Alliance for Protection of Auburn Community Environment v. County of
Placer (2013) 215 Cal.App.4th 25, 32-33 (Alliance for Protection) [“CEQA . . . aims to
ensure extremely prompt resolution of lawsuits claiming noncompliance with the act”].)
However, the same can be said with respect to any claims subject to a short statute of
limitations. That alone is not enough. What is required in order to conclude equitable
tolling does not apply is a clear expression of such an intent. (Saint Francis, supra, 9
Cal.5th at p. 722.)
Moreover, in Salmon Protection, while acknowledging that CEQA’s short statute
of limitations indicated an obvious “ ‘ “legislative concern that CEQA challenges . . .
must not be permitted to drag on to the potential serious injury of the real party in
interest” ’ ” (Salmon Protection, supra, 205 Cal.App.4th at p. 201, quoting Committee for
Green Foothills, supra, 48 Cal.4th at p. 50), the court nevertheless concluded tolling
agreements are permissible under CEQA because of the “equally strong public policy, . . .
recognized in just as many cases, to encourage the settlement of controversies in
preference to litigation.” (Salmon Protection, at p. 201.) If the parties to a CEQA action
may agree to toll the statute of limitations, we see no reason a trial court may not exercise
its equitable powers to do so “when justice so requires.” (Saint Francis, supra, 9 Cal.5th
at p. 721.)
Nor are we persuaded by Caltrans’s reliance on certain language in this court’s
Alliance for Protection decision. There, the trial court sustained the defendant’s
demurrer without leave to amend because the plaintiff’s writ petition under CEQA was
filed three days after the 30-day limitations period expired. (Alliance for Protection,
supra, 215 Cal.App.4th at p. 29.) On appeal, the plaintiff argued the trial court erred
because Code of Civil Procedure “section 473 provides relief from its excusable mistake
that resulted in the late filing of the CEQA petition.” (Id. at p. 30.) We disagreed and
affirmed the judgment. As we explained, the plaintiff’s primary difficulty in making this
argument was our Supreme Court’s decision in Maynard v. Brandon (2005) 36 Cal.4th
15364, in which the court concluded “that [Code of Civil Procedure] section 473 could not
relieve a party from the consequences of running afoul of the 30-day deadline for seeking
a trial following an arbitration.” (Alliance for Protection, at p. 31; see id. at p. 30.) We
also noted that a prior Court of Appeal decision, Kupka v. Board of Administration
(1981) 122 Cal.App.3d 791, relied upon in Maynard, concluded that “a plaintiff’s
innocent mistake, not caused by the defendant, will not excuse a late filing.” (Alliance
for Protection, at p. 32.) Then, in describing the CEQA statute of limitations, we stated,
“section 21167 makes no provision for extending the limitations period on a showing of
good cause.” (Ibid., italics added.)
It is the foregoing italicized language that Caltrans cites, out of context, in an
apparent attempt to suggest that the CEQA statute of limitations cannot be equitably
tolled. But this statement was made in the context of our conclusion that Code of Civil
Procedure section 473 cannot relieve a party from CEQA’s statute of limitations. It says
nothing about the doctrine of equitable tolling, the applicability of which was not at issue
in the case. “It is axiomatic that cases are not authority for propositions not considered.”
(People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10; Howard Jarvis Taxpayers Assn. v.
Newsom (2019) 39 Cal.App.5th 158, 169.)
2.
Application of Equitable Tolling in This Case
We first note that Caltrans does not argue either that it lacked sufficient notice of
Keep 70 Safe’s claims or that it suffered any prejudice from the filing in federal court.
Nor could it successfully make either argument in light of the Addison decision,
discussed above. (See Addison, supra, 21 Cal.3d at p. 319.) Caltrans does argue that
filing these CEQA causes of action in federal court was unreasonable following the
United States Supreme Court’s decision in Raygor, supra, 534 U.S. 533. We disagree.
In Raygor, state law claims asserted by the plaintiffs in federal court against the
state university defendant were dismissed on Eleventh Amendment grounds and then
16
refiled in state court past the limitations period. (Raygor, supra, 534 U.S. at pp. 535-
536.) The trial court dismissed the lawsuit, agreeing with the university’s argument that
“the tolling provision of the federal supplemental jurisdiction statute, 28 [United States
Code, section] 1367, did not apply to toll the limitations period on the state law claims
while they were pending in federal court.” (Id. at p. 538.) The Minnesota Supreme Court
concluded that while the federal tolling provision facially applied to the plaintiffs’ claims,
it was unconstitutional as applied “to state law claims against an unconsenting state
defendant first filed in federal court but then dismissed and brought in state court.” (Id. at
p. 539.) The United States Supreme Court affirmed the judgment dismissing the lawsuit,
but concluded the federal supplemental jurisdiction statute, including its tolling provision,
did not apply to such claims in the first place. The court first noted that prior to the
enactment of that statute, it had already “held that the Eleventh Amendment bars the
adjudication of pendent state law claims against nonconsenting state defendants in federal
court.” (Id. at pp. 540-541, citing Pennhurst State School & Hosp. v. Halderman (1984)
465 U.S. 89, 120.) Thus, if Congress wanted the federal supplemental jurisdiction statute
to apply to state law claims against nonconsenting state defendants, the intent to abrogate
“the sovereign immunity guaranteed by the Eleventh Amendment” must be
“ ‘ “unmistakably clear in the language of the statute.” ’ [Citation.]” (Raygor, at p. 541.)
There was no clear expression of any such intent. (Id. at pp. 541-542.) Nor was there
any clear expression of intent for that statute’s tolling provision to nevertheless apply to
state law claims filed against nonconsenting state defendants in federal court that are
subsequently dismissed on Eleventh Amendment grounds. (Raygor, at pp. 542-545.)
Thus, under the Eleventh Amendment, Caltrans was entitled to dismissal of the
CEQA claims filed in federal court unless it consented to federal supplemental
jurisdiction. And under Raygor, the tolling provision of the federal supplemental
jurisdiction statute did not apply to suspend the statute of limitations applicable to those
claims. However, as the trial court explained in its ruling on the demurrer, Caltrans could
17
have consented to federal court jurisdiction. It has apparently done so in the past. (See
City of Carmel-By-The-Sea v. U.S. Dept. of Transp. (9th Cir. 1997) 123 F.3d 1142, 1163-
1165 [adjudicating CEQA claims brought against Caltrans].)7 In these circumstances, we
cannot conclude filing the lawsuit in federal court was unreasonable.
Nor are we persuaded by Caltrans’s argument that “published and unpublished
decisions indicate Caltrans does not regularly forfeit the State’s sovereign immunity,”
other “litigants filed state and federal environmental claims against Caltrans separately
and in the appropriate courts,” and “no cases since Raygor suggest Caltrans forfeits its
sovereign immunity to allow state law claims to proceed against it in federal court.” This
may well be true, but it does not necessarily render Keep 70 Safe’s federal filing
unreasonable, particularly in light of the fact that our Supreme Court in Addison did not
find it unreasonable to file that lawsuit in federal court even though that case also had to
be dismissed for lack of jurisdiction.
For the foregoing reasons, we conclude the 30-day statute of limitations, which
commenced on August 3, 2020, was tolled 17 days later, on August 20, 2020, when the
federal lawsuit was filed, leaving 13 days on the clock. The more difficult question is
whether it became unreasonable for Keep 70 Safe to delay dismissing the CEQA causes
7 Caltrans complains that Carmel-By-The-Sea does not discuss how the federal court
obtained jurisdiction over the CEQA claims in that case and also notes that the decision
predates Raygor, arguing “what may have been reasonable reliance on an unsettled area
of law in 1997 cannot be deemed reasonable after 2002.” We acknowledge that the
Carmel-By-The-Sea decision does not discuss federal supplemental jurisdiction and was
decided before Raygor. However, the law in this respect was not unsettled prior to 2002.
As noted above, the United States Supreme Court held “that the Eleventh Amendment
bars the adjudication of pendent state law claims against nonconsenting state defendants
in federal court” in 1984. (Raygor, supra, 534 U.S. at pp. 540-541, citing Pennhurst
State School and Hospital v. Halderman, supra, 465 U.S. at p. 120.) Thus, well before
1997, the only way to obtain such jurisdiction over a state defendant was through
consent. Moreover, the fact that jurisdiction was not discussed in Carmel-By-The-Sea
strongly suggests that Caltrans did not object to federal court jurisdiction in that case.
18
of action from the federal lawsuit after being notified that Caltrans did not consent to
federal court jurisdiction. Keep 70 Safe was notified of Caltrans’s intent to move to
dismiss the federal lawsuit on September 30, 2020. Raygor was cited. Dismissal was
inevitable. The promised motion to dismiss was filed on October 9, 2020. We have no
difficulty concluding it was reasonable for Keep 70 Safe’s attorney to research the matter
for himself, rather than take Caltrans’s attorneys’ word for it. We also agree with the trial
court that Caltrans might have changed its mind, so we further conclude that it was
reasonable for Keep 70 Safe to wait at least until the motion to dismiss was filed to take
any action.
We need not determine, however, whether the trial court correctly concluded that
Keep 70 Safe reasonably waited until October 23, 2020, to dismiss the CEQA claims
from the federal lawsuit and file them in state court. This is because, as mentioned, 13
days remained on the clock when Keep 70 Safe filed the federal lawsuit, thereby tolling
the statute of limitations. Counting back 13 days from when the present lawsuit was filed
in state court, October 23, 2020, the dispositive question becomes whether the clock
began to run on October 10, 2020, the day after the motion to dismiss was filed, in which
case this lawsuit is time-barred by one day.
While the issue of whether the CEQA claims could proceed in federal court
against Caltrans notwithstanding its lack of consent was not a complicated one, and while
Keep 70 Safe’s attorney was put on notice of Caltrans’s intent to move to dismiss the
CEQA claims from the federal lawsuit on September 30, 2020, we conclude it was not
unreasonable for Keep 70 Safe’s attorney to have continued to research the matter for at
least one day after the motion to dismiss was filed. (See Addison, supra, 21 Cal.3d at
p. 317 [not unreasonable for plaintiffs to file the state court action in February when
defendants moved to dismiss the previous November].)
The trial court did not err in applying the doctrine of equitable tolling in this case.
We now turn to Keep 70 Safe’s appellate contentions.
19
III
Unlawful Piecemealing
Keep 70 Safe contends the project in this case received unlawful piecemeal review
because it is one component of Caltrans’s “larger plan ‘to achieve the ultimate facility’ ”
described in the 2014 TCR. This is a question of law subject to de novo review on
appeal. (Vineyard, supra, 40 Cal.4th at p. 435.) We conclude no unlawful piecemealing
occurred.
“It is well established that ‘ “CEQA forbids ‘piecemeal’ review of the significant
environmental impacts of a project.” ’ [Citation.] Rather, CEQA mandates ‘that
environmental considerations do not become submerged by chopping a large project into
many little ones—each with a minimal potential impact on the environment—which
cumulatively may have disastrous consequences.’ [Citation.] Thus, the term ‘project’ as
used for CEQA purposes is defined broadly as ‘the whole of an action, which has a
potential for resulting in either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the environment . . . .’ [Citation.]”
(Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35, 45.)
In Laurel Heights, supra, 47 Cal.3d 376, our Supreme Court articulated the
following test for unlawful piecemealing: “[A]n EIR must include an analysis of the
environmental effects of future expansion or other action if: (1) it is a reasonably
foreseeable consequence of the initial project; and (2) the future expansion or action will
be significant in that it will likely change the scope or nature of the initial project or its
environmental effects. Absent these two circumstances, the future expansion need not be
considered in the EIR for the proposed project. Of course, if the future action is not
considered at that time, it will have to be discussed in a subsequent EIR before the future
action can be approved under CEQA.” (Id. at p. 396.) Applying this test, the court
concluded the University of California unlawfully piecemealed environmental review of
a project involving the university moving certain research facilities into part of a newly-
20
acquired building (100,000 square feet). That review failed to “discuss the additional
environmental effects, if any, that will result from [the university’s] use of the remaining
254,000 square feet when it becomes available” even though university officials planned
to use the whole building as soon as the current tenant’s lease expired. (Id. at p. 393; see
id. at pp. 396-397.) The court concluded “the future expansion and the general types of
future activity at the facility are reasonably foreseeable.” (Id. at p. 397.)
Here, Keep 70 Safe does not assert any failure to consider reasonably foreseeable
future action to be taken as a consequence of the highway project in this case. Instead,
Keep 70 Safe argues the piecemealing analysis also operates into the past. According to
Keep 70 Safe, because the 2014 TCR recommended many highway improvement
projects, environmental review of the current project must include either “TCR’s ‘whole
of an action’ ” or “the cumulative impact of TCR’s phases or parts.” To the extent Keep
70 Safe argues the entire 2014 TCR must be analyzed, we note the statute of limitations
for challenging that document under CEQA has long passed.8 Nor does it make sense to
require an analysis of every proposed highway project along SR 70 in Caltrans’s district 3
regardless of how far removed the other proposed projects are from the current project.
But even if we read Keep 70 Safe’s argument more narrowly to mean the current
project’s impacts should have been analyzed together with closely-connected projects,
such as the Simmerly Slough Bridge Replacement Project at the current project’s
southern terminus and the Butte 70 Safety and Capacity Project at its northern terminus,
both of these projects have already been approved following CEQA review, and the
8 We also agree with Caltrans that “[a] TCR does not bind Caltrans to any specific
project but presents an ultimate facility concept for the route to address the [LOS]
standards for the route, if fully implemented.” It is “an informational resource” that,
among other things, “conceptualizes how the corridor should operate, [and] helps inform
the regional transportation planning process,” but it does not commit Caltrans to any
particular action and “does not result in a direct or reasonably foreseeable indirect change
in the environment.”
21
statute of limitations for challenging the approval of those projects has also expired.
Keep 70 Safe does not argue otherwise. Instead, while acknowledging that “a
piecemealing challenge to the TCR and its other projects is mooted [(barred)] by [the
statute of limitations],” Keep 70 Safe nevertheless asserts the current project must
analyze not only reasonably foreseeable future action, as required by Laurel Heights, but
also the environmental impacts of these other already-reviewed projects.
In making this argument, Keep 70 Safe relies primarily on Arviv Enterprises, Inc.
v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333. There, a developer
secured permits to build five hillside houses downslope from Mulholland Drive, a
categorical environmental exemption to build two more across the street, and a mitigated
negative declaration to build 14 additional houses on an adjacent street. (Id. at p. 1336.)
When the City of Los Angeles realized this was “in reality a development project for 21
hillside houses,” it required an EIR for the entire project. (Ibid.) The developer
challenged that determination by filing a writ petition in the trial court, relief was denied,
and our colleagues at the Second Appellate District affirmed. (Ibid.) The court stated:
“This entire case is the direct result of inadequate, or misleading, project descriptions.”
(Id. at p. 1346.) Acknowledging that “it is entirely possible a two-house project . . . may
in fact have a de minimus, or mitigatable, effect on the local environment,” the court
explained that the developer “never intended a two or three house project” and instead
“always envisioned a 21-house development,” as he admitted at the hearing before the
planning commission. (Ibid.) The court continued: “Apparently[,] the City’s planning
department staff was never able to link the various projects together until the July 2000
hearing when members of the public complained, not only about the two additional
homes . . . but also the 14 on [the adjacent street] then under review, as well as the five
existing homes for which [the developer] never sought . . . approval [from the design
review board]. [¶] The significance of an accurate project description is manifest, where,
as here, cumulative environmental impacts may be disguised or minimized by filing
22
numerous, serial applications. . . . [¶] By the November 2000 hearing[,] the City’s
planning department agreed it had failed to consider the cumulative effects from the
various construction projects under consideration in the sensitive hillside area. It thus
recommended the [planning commission] order an EIR to consider the overall effects
from the project as a whole.” (Id. at pp. 1346-1347, fn. omitted.) The court concluded “a
review of the entire record demonstrates substantial evidence to support a fair argument
the overall project may have substantial environmental effects.” (Id. at p. 1347.)
Keep 70 Safe’s reliance on Arviv is misplaced. While, as Keep 70 Safe notes, the
Arviv court affirmed the trial court’s conclusion that an EIR was required for the entire
21-house development even though five of the houses were already built and others were
already approved with CEQA exemptions, we cannot agree with Keep 70 Safe’s assertion
that “[t]here is no difference” between what the developer did in Arviv and what Caltrans
did in this case. Unlike Arviv, there is no evidence in this record that Caltrans sought to
evade CEQA review of an intended larger project by misleadingly submitting
applications for individual pieces of that project. Instead, each time Caltrans approved a
project from the 2014 TCR, that project received CEQA review. Whether that review
was adequate with respect to the Simmerly Slough Bridge Replacement Project or the
Butte 70 Safety and Capacity Project is not before us. We are concerned here only with
the current project, widening the 9.6-mile stretch of SR 70 between these two other
projects. As we explain immediately below, unlike the separate pieces of the 21-house
development in Arviv, the current project has “significant independent or local utility”
(Planning and Conservation League v. Castaic Lake Water Agency (2010) 180
Cal.App.4th 210, 237 (Castaic Lake)) and “can be implemented independently” (Banning
Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1223
(Banning Ranch) from the other highway improvement projects recommended in the
2014 TCR. These are the dispositive considerations.
23
In this regard, we find Del Mar Terrace Conservancy, Inc. v. City Council (1992)
10 Cal.App.4th 712 (Del Mar Terrace) to be particularly instructive.9 There, our
colleagues at the Fourth Appellate District rejected an unlawful piecemealing challenge
to the adequacy of an EIR prepared for a highway project (the State Route 56 West
project) that converted 1.8 miles of Carmel Valley Road to a four-lane freeway. (Id. at
pp. 719-721.) After discussing Laurel Heights, the court noted there were also
contemporaneous plans for an State Route 56 East project, as well as two end segments to
connect State Route 56 to Interstate 5 and Interstate 15/State Route 67, but concluded it
was uncertain whether or not these potential future projects would be approved by the
electorate, distinguishing the case from Laurel Heights, where it was clear that the
university’s plan was to move into the remainder of the new building. (Id. at pp. 731-
732.) The court then approved of the trial court’s use of a federal test, stated in Daly v.
Volpe (9th Cir. 1975) 514 F.2d 1106, for determining whether unlawful piecemealing of a
highway project had occurred under NEPA. 10 (Del Mar Terrace, at pp. 732-733.) This
test requires: (1) the segment of highway under review must be “(a) of substantial length
and (b) between logical terminal points (termini) (defined as major crossroads, population
centers, major traffic generators, or similar major highway control elements)”; (2) the
segment must “have ‘independent utility’ ”; (3) the segment must provide “ ‘ “adequate
opportunity for the consideration of alternatives” ’ ”; and (4) “it must be addressed
whether the segment under consideration seems to fulfill important state and local needs,
9 Del Mar Terrace was overruled on another point in Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 569-571 and footnote 2.
10 As the court explained, “the trial court acted consistently with the direction of our
Supreme Court in Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 201, that since
CEQA was modeled on [NEPA], California courts have consistently treated judicial and
administrative interpretation of the latter enactment as persuasive authority in interpreting
CEQA.” (Del Mar Terrace, supra, 10 Cal.App.4th at p. 732.)
24
such as relieving particular traffic congestion.” (Id. at p. 733.) Applying this test, the
court concluded all of the criteria “find support in the record.” (Ibid.)
Under this test, we conclude the project in this case meets the foregoing criteria.
First, the project is of far greater length than the segment at issue in Del Mar Terrace. It
also has logical termini. As stated previously, this project connects two other highway
projects that have previously undergone CEQA review, the Simmerly Slough Bridge
Replacement Project at the southern terminus and the Butte 70 Safety and Capacity
Project at the northern terminus. Thus, there is no need for the project to extend further
north or south.
Second, the project has independent utility. As stated in the final EIR, the project
addresses “operational concerns along the corridor” by improving both travel times and
the reliable movement of goods “within the regional and local supply chain,” and also by
“improv[ing] the overall safety of travelers within the corridor.” This utility is
independent from the other projects because “the projects operate independently of one
another and can be implemented separately . . . .” For example, the Simmerly Slough
Bridge Replacement Project, replacing a bridge immediately to the south, “fulfills its
purpose and need and functions properly without requiring additional improvements
elsewhere.” Similarly, the Butte 70 Safety and Capacity Project “will construct a five-
lane facility” north of the Yuba/Butte County line at Honcut Creek and serves its purpose
by improving that Butte County stretch of SR 70 without requiring additional
improvements south of the county line. Between these projects is the project at issue in
this case. It fulfills its purpose of improving the safety and capacity of SR 70 on the
Yuba County side regardless of whether the highway is improved in Butte County to the
north and regardless of whether the Simmerly Slough Bridge is replaced to the south.
Third, as we discuss in the next section of this opinion, the segment of SR 70
comprising the project provided an adequate opportunity for the consideration of
alternatives. And finally, the current project to improve SR 70 between the Simmerly
25
Slough Bridge and the Butte County line appears to fulfill important local needs within
Yuba County north of Marysville, particularly improving safety and relieving traffic
congestion along this segment of the highway. Again, this is so regardless of the other
projects to the north and south. (See Castaic Lake, supra, 180 Cal.App.4th at p. 237
[discussing Del Mar Terrace and concluding a water transfer project had “significant
independent or local utility, in view of its benefits to Castaic’s service area and relative
autonomy from” a broader water delivery agreement]; Banning Ranch, supra, 211
Cal.App.4th at p. 1226 [park project and residential development project “serve different
purposes” and “the City can and will build the park regardless of” the residential
development].)
Having reviewed the matter independently, we conclude no unlawful piecemealing
occurred.
IV
Adequacy of Alternatives Considered
Keep 70 Safe also claims the final EIR did not consider an adequate range of
alternatives. We disagree.
Our Supreme Court set forth the standard for analyzing such a claim in Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 (Goleta Valley):
“The core of an EIR is the mitigation and alternatives sections. The Legislature
has declared it the policy of the State to ‘consider alternatives to proposed actions
affecting the environment.’ [Citations.] Section 21002.1, subdivision (a) . . . provides:
‘The purpose of an environmental impact report is to identify the significant effects of a
project on the environment, to identify alternatives to the project, and to indicate the
manner in which those significant effects can be mitigated or avoided.’ [Citations.]
“In determining the nature and scope of alternatives to be examined in an EIR, the
Legislature has decreed that local agencies shall be guided by the doctrine of ‘feasibility.’
‘[I]t is the policy of the state that public agencies should not approve projects as proposed
26
if there are feasible alternatives or feasible mitigation measures available which would
substantially lessen the significant environmental effects of such projects . . . . [I]n the
event specific economic, social, or other conditions make infeasible such project
alternatives or such mitigation measures, individual projects may be approved in spite of
one or more significant effects thereof.’ [Citation.]
“The Legislature has defined ‘feasible,’ for purposes of CEQA review, as ‘capable
of being accomplished in a successful manner within a reasonable period of time, taking
into account economic, environmental, social, and technological factors.’ [Citations.]
Both the California and the federal courts have further declared that ‘[t]he statutory
requirements for consideration of alternatives must be judged against a rule of reason.’
[Citations.] As we have explained, ‘One of [an EIR’s] major functions . . . is to ensure
that all reasonable alternatives to proposed projects are thoroughly assessed by the
responsible official.’ [Citations.]
“These statutory and judicial concepts are carried forward in the Guidelines, which
state that an EIR must ‘[d]escribe a range of reasonable alternatives to the project, or to
the location of the project, which could feasibly attain the basic objectives of the project,
and evaluate the comparative merits of the alternatives.’ [Citation.] As the underscored
language suggests, project alternatives typically fall into one of two categories: on-site
alternatives, which generally consist of different uses of the land under consideration; and
off-site alternatives, which usually involve similar uses at different locations. [Citations.]
“CEQA establishes no categorical legal imperative as to the scope of alternatives
to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be
reviewed in light of the statutory purpose. Informed by that purpose, we here reaffirm
the principle that an EIR for any project subject to CEQA review must consider a
reasonable range of alternatives to the project, or to the location of the project, which:
(1) offer substantial environmental advantages over the project proposal [citation]; and
(2) may be ‘feasibly accomplished in a successful manner’ considering the economic,
27
environmental, social and technological factors involved. [Citations.]” (Goleta Valley,
supra, 52 Cal.3d at pp. 564-566, fn. omitted.)
Returning to Del Mar Terrace, the court concluded the EIR in that case satisfied
the rule of reason set forth above and rejected the plaintiff’s argument that “the narrowly
defined project description and an allegedly predetermined alignment of the project along
Carmel Valley Road” made the feasible alternatives analysis “cursory and incomplete.”
(Del Mar Terrace, supra, 10 Cal.App.4th at p. 739.) There, in addition to the no project
alternative, the EIR discussed three other potential alignments and rejected each with
reasons. (Id. at p. 740.) The court also noted planning commission records indicated
“alternative route alignments for SR 56 West were studied by Caltrans beginning in
1962” and “the studies made had pretty well exhausted all of the possible alternatives and
any other variables that might take place.” (Ibid.)
Here, the final EIR specifically analyzed a no project alternative and two project
alternatives. Keep 70 Safe complains that the two build alternatives are “nearly
identical,” but cites no decisional authority for the proposition that similarity is fatal to an
EIR’s assessment of alternatives. In any event, as explained more fully previously,
although both alternatives include an additional 12-foot lane with an 8-foot shoulder to
achieve a continuous passing lane in each direction, and also include a CRZ with a
minimum width of 20 feet, side slopes, and roadside ditches outside the CRZ,
alternative 1 retains the safety project’s 14-foot two-way left turn lane, “resulting in a
five-lane facility,” while alternative 2 does not retain that turn lane and instead installs a
14-foot median with a concrete barrier dividing the two lanes of travel in each direction.
We conclude the two alternatives are different enough to satisfy the rule of reason set
forth above.
Keep 70 Safe also objects that the EIR does not analyze the safety project as a
separate alternative. However, all alternatives assumed the existence of the safety
project’s improvements, as that project was approved separately and would be completed
28
regardless of whether the project under review was approved or not. Moreover, these
safety improvements, would not achieve one of the primary objectives of the project,
alleviating the operational deficiencies of SR 70.
Keep 70 Safe further asserts that other alternatives should have been analyzed.
However, as in Del Mar Terrace, other alternatives were considered at the concept level.
As the final EIR explained, an alternative alignment was originally envisioned , “a four-
lane ‘Marysville By-Pass to Oroville Freeway’ beginning at the SR 65/SR 70 split and
extending to the southern limits of Oroville.” However, this alternative alignment was
abandoned as an option “[d]ue to lack of funding and significant environmental impacts”
identified in a 2001 study. Nor does Keep 70 Safe adequately explain why “[a]n
alternative with less lanes” should have been analyzed, particularly in light of the fact
that both alternatives with two lanes in each direction were found to have a less than
significant impact on the environment.
Finally, we also reject Keep 70 Safe’s objections to the no project alternative as
“but another feasible ‘build’ alternative.” This objection is based on the fact that the EIR
assumed the existence of the safety project’s safety improvements. However, as stated
previously, that project was approved separately and would be completed regardless of
whether the project under review was approved or not. It would make no sense for the no
project alternative to assume the safety project would somehow be undone.
For the foregoing reasons, we conclude the rule of reason has been satisfied.
V
Findings and Mitigation Measures
Keep 70 Safe further asserts Caltrans was required, as a procedural matter, to
make certain findings and commit to various mitigation measures because the final EIR
identified significant environmental impacts. Not so.
Section 21081 provides: “[N]o public agency shall approve or carry out a project
for which an environmental impact report has been certified which identifies one or more
29
significant effects on the environment that would occur if the project is approved or
carried out unless both of the following occur: [¶] (a) The public agency makes one or
more of the following findings with respect to each significant effect: [¶] (1) Changes or
alterations have been required in, or incorporated into, the project which mitigate or
avoid the significant effects on the environment. [¶] (2) Those changes or alterations are
within the responsibility and jurisdiction of another public agency and have been, or can
and should be, adopted by that other agency. [¶] (3) Specific economic, legal, social,
technological, or other considerations, including considerations for the provision of
employment opportunities for highly trained workers, make infeasible the mitigation
measures or alternatives identified in the environmental impact report. [¶] (b) With
respect to significant effects which were subject to a finding under paragraph (3) of
subdivision (a), the public agency finds that specific overriding economic, legal, social,
technological, or other benefits of the project outweigh the significant effects on the
environment.”
Thus, in order for Keep 70 Safe’s argument to succeed, the final EIR must have
identified one or more significant effects to the environment. Keep 70 Safe asserts this is
the case with respect to biological impacts.11 However, after explaining that the project
would impact various environmental resources, including biological resources, the final
EIR states: “The project would not contribute to cumulatively considerable effects to the
resources analyzed.” The final EIR then indicates that a summary of “the significance of
impacts under CEQA” is contained in table S-4. The portion of that table relating to
11 Keep 70 Safe also argues findings and mitigation measures were required for
hydrological impacts, aesthetic impacts, cultural impacts, geological impacts, release of
hazardous material, traffic impacts, and impacts to emergency services, while
simultaneously acknowledging that the final EIR concluded no significant impacts would
occur. These arguments are more appropriately addressed as challenges to the
sufficiency of the evidence supporting the conclusion of less than significant impact. We
do so later in this opinion.
30
biological resources is divided into six categories. With respect to the first category
(effects on candidate, sensitive, or special-status species), the table indicates both project
alternatives would have no impact. With respect to the next two categories (effects on
riparian habitat or other sensitive natural communities, and effects on wetlands), the table
indicates a less than significant impact for both project alternatives without mitigation.
And with respect to the final three categories (effects on the movement of migratory fish
or other wildlife, whether the project conflicts with local policies or ordinances protecting
biological resources, and whether the project conflicts with various conservation plans),
the table indicates both project alternatives would have no impact.
Nevertheless, Keep 70 Safe asserts the final EIR does find significant effects to the
environment, noting the document identifies various mitigation measures for biological
resources, such as compensation for loss of riparian habitat and wetlands, and also states
later in the document that the second and third categories of potential impact noted above
(impacts to riparian habitat and wetlands) are less than significant with mitigation
incorporated.
In response, Caltrans admits these portions of the final EIR exist, but “stands by its
determination that the impact is less than significant without mitigation,” as stated
elsewhere in the final EIR. With respect to the identified mitigation measures, Caltrans
argues: “As discussed in the EIR, ‘compensation for loss of riparian habitat is generally
required by [the resource] agencies’ as a permit condition, regardless of whether or not
the impact is considered significant under CEQA. [Citations.] Thus, the compensation
identified is not a mitigation measure required as a condition of approval by Caltrans or
because a significant effect was identified, but it is expected to be incorporated into a
permit by the appropriate resource agency.” With respect to the claimed finding of less
than significant impact with mitigation, Caltrans argues: “The statements that the
impacts are less than significant with mitigation are inadvertent misstatements. They
capture the concept that the impact is less than significant and is consistent with Caltrans’
31
belief that compensation will be required by permitting agencies. However, it misstates
the finding that the impact is determined to be less than significant without mitigation,
which is the finding identified elsewhere in the EIR, reaffirmed in the [notice of
determination], and admitted to in [Keep 70 Safe’s writ petition].”
Viewing the totality of the final EIR, we conclude the finding of no significant
impact without mitigation is clear. Whether that finding is supported by substantial
evidence is another matter. We turn to that question now.
VI
Sufficiency of the Evidence
Finally, Keep 70 Safe challenges the sufficiency of the evidence supporting the
final EIR’s findings of no significant impact in seven areas of potential environmental
harm: (1) biological; (2) cultural; (3) aesthetic; (4) geological; (5) hydrological/water
quality; (6) transportation and emergency response/evacuation plans; (7) hazardous
materials. We conclude the findings are supported by substantial evidence.
As stated previously, “[i]n reviewing for substantial evidence, the reviewing 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,’ for, on factual questions, our
task ‘is not to weigh conflicting evidence and determine who has the better argument.’
[Citation.]” (Vineyard, supra, 40 Cal.4th at p. 435.) “In applying the substantial
evidence standard, ‘the reviewing court must resolve reasonable doubts in favor of the
administrative finding and decision.’ [Citation.] The Guidelines define ‘substantial
evidence’ as ‘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.’ [Citation.]” (Laurel Heights, supra, 47 Cal.3d at
pp. 392-393.)
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A.
Biological Impacts
Keep 70 Safe claims the project’s “biological impacts are undisputed” and
suggests the project will impact 44 threatened, endangered, or nonlisted special status
plant and wildlife species. However, as the final EIR makes clear, of the seven special
status animal species initially identified as potentially occurring in the vicinity of the
project, a field study concluded that only four such species have suitable foraging habitat
in the project area, and only one was actually “considered to potentially occur in the
vicinity.” Similarly, of the 10 special status plant species initially identified as
potentially occurring in the project area, the field study determined none are actually
“anticipated to occur in the project area.” With respect to the 16 threatened or
endangered wildlife species initially identified as potentially occurring in the project area,
the field study “determined that 14 of the 16 species would not occur in the study area
because it lacks suitable habitat for the species or is outside the species’ known range,”
leaving one threatened insect that “may occur in the study area” and one threatened bird
that “has limited potential foraging and nesting habitat in the study area.” Finally, with
respect to the 11 threatened or endangered plant species initially identified as potentially
occurring in the project area, the field study concluded none are actually “anticipated to
occur in the project area.”
Thus, far from Keep 70 Safe’s suggestion of impact to 44 threatened, endangered,
or special status plants and animals, the final EIR indicates potential impact to three: one
special status bird, one threatened insect, and one threatened bird. The final EIR
discusses the potential impact to these birds due to tree removal and trimming along the
highway and clearing of ruderal vegetation. The final EIR also specifically discusses the
potential impact to the two threatened species. Keep 70 Safe does not provide this
discussion in its opening brief, and has therefore not carried its burden of laying out the
33
evidence favorable to the other side and showing why it is lacking. 12 (See King &
Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 850-851 (King &
Gardiner); Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1572
(Pfeiffer).)
Keep 70 Safe also argues the project will significantly impact riparian habitat and
wetlands without mitigation. The final EIR does state, as Keep 70 Safe notes, that the
project “would encroach on the upland valley foothill riparian habitat” and “the riparian
wetland” in the biological study area, resulting in permanent impacts to 0.24 acres of
riparian habitat and 0.58 acres of wetland. Permanent impacts to the foothill riparian
habitat would come from “the removal of woody riparian vegetation” and such impacts to
the wetland would come from “the placement of permanent fill in the riparian wetland.”
Keep 70 Safe asserts the final EIR overlooks these impacts and cites a CEQA
Guideline setting out the requirements for an EIR’s discussion of the project’s
environmental setting. That Guideline states: “Special emphasis should be placed on
environmental resources that are rare or unique to that region and would be affected by
the project. The EIR must demonstrate that the significant environmental impacts of the
proposed project were adequately investigated and discussed and it must permit the
significant effects of the project to be considered in the full environmental context.”
(Guidelines, § 15125, subd. (c).) What Keep 70 Safe does not do is adequately explain
how the final EIR in this case runs afoul of this Guideline. The impacts to the riparian
habitat and wetlands are thoroughly discussed in the final EIR. Disagreement with
Caltrans’s conclusion that these impacts are less than significant without mitigation does
12 This failure will be a persistent theme from here on out. It stems from Keep 70
Safe’s erroneous assertion that Caltrans found significant impact to the environment, and
therefore “failed CEQA’s procedural mandates” to make certain required findings and
commit to mitigation measures. However, as we have already explained, the substantial
evidence test applies to these claims.
34
not render the EIR inadequate. And again, Keep 70 Safe’s failure to provide this
discussion in its opening brief prevents it from successfully challenging the sufficiency of
the evidence on this point. (King & Gardiner, supra, 45 Cal.App.5th at pp. 850-851;
Pfeiffer, supra, 200 Cal.App.4th at p. 1572.)
Nor are we persuaded by Keep 70 Safe’s argument that Caltrans is “disclaim[ing]”
its duty to mitigate by noting that “other agencies” will require mitigation as part of their
permitting process. The final EIR does state with respect to loss of riparian habitat that
the Department of Fish and Wildlife regulates activities involving the “disturbance of
riparian vegetation” and may include in a permit for such activities “conditions that
include avoiding or minimizing vegetation removal, . . . and restoring degraded sites or
compensating for permanent habitat losses.” The final EIR also states with respect to the
wetland impact: “State and federal agencies will require avoidance, minimization, and
compensatory mitigation for the loss of riparian wetland habitat. Implementation of the
avoidance and minimization efforts described below would minimize the impacts on
riparian wetlands. Additional mitigation is proposed to compensate for the permanent
loss of riparian wetlands.”
First, these portions of the final EIR confirm our previous conclusion that the
manifest intention of the document was to conclude no significant impact without
mitigation required as a condition of project approval under CEQA. Instead, Caltrans
expected any required mitigation “to be incorporated into a permit by the appropriate
resource agency,” not in order to comply with CEQA, but as required by other areas of
environmental law. Second, and more importantly for present purposes, even without
such mitigation, Caltrans determined the impact would be less than significant under
CEQA. Keep 70 Safe has failed to carry its burden of showing the evidence is
insufficient to support that conclusion.
35
B.
Cultural Impacts
Keep 70 Safe takes issue with Caltrans’s determination that the project would not
significantly impact archaeological/paleontological resources “despite acknowledging the
potential of discovering those during construction” and proposing various mitigation
measures, including a requirement that work on the roadway stop in the event cultural
materials or human remains are discovered. However, Caltrans performed a record
search for any recorded cultural resources within a half-mile radius of the relevant area,
consulted with potentially interested parties, and conducted a survey. No “known
[National Register of Historic Places]-eligible, [National Register of Historic Places]-
listed, or previously unevaluated archaeological resources” were identified. The area in
question also has “a low potential for buried archaeological sites overall.” Again, Keep
70 Safe does not set forth the final EIR’s analysis regarding the significance of cultural
impacts and therefore cannot successfully challenge the sufficiency of the evidence
supporting the determination of less than significant impact. (King & Gardiner, supra,
45 Cal.App.5th at pp. 850-851; Pfeiffer, supra, 200 Cal.App.4th at p. 1572.)
Nor does the fact that the EIR identified various measures designed to ensure that
no significant impacts occur mean that without these measures the impact would be
significant. As Caltrans points out: “The measure . . . for the discovery of unknown
cultural resources is a standard practice. [Citations.] And the process described for the
discovery of human remains is the process required by Health and Safety Code [section]
7050.5 and Public Resources Code [section] 5097.98. Both of these measures apply to
every Caltrans project regardless of whether the impact is significant or less than
significant.” And as Caltrans also points out, citing our decision in Tracy First v. City of
Tracy (2009) 177 Cal.App.4th 912 (Tracy First), an EIR may rely on compliance with
legal requirements or standards in determining whether there are significant impacts. (Id.
at p. 934 & fn. 7.) Again, Keep 70 Safe has not carried its burden.
36
C.
Aesthetic Impacts
Keep 70 Safe also takes issue with Caltrans’s determination that the project would
not significantly impact the visual character or quality of the site and its surroundings
“despite acknowledging that ‘[t]he loss of vegetation and orchard planting would have a
moderate effect on the spatial character adjacent to the roadsides.’ ” Keep 70 Safe argues
this acknowledged moderate effect must be significant and notes the final EIR proposed
mitigation measures for replacing vegetation affected by the project.13 We disagree with
the suggestion that the word “moderate” in the final EIR’s discussion of impacts
necessarily requires a finding of significant impact. As Keep 70 Safe does not set forth
the remainder of that discussion, which explains the reasoning behind the ultimate
finding of less than significant impact, it cannot succeed in this claim. (King & Gardiner,
supra, 45 Cal.App.5th at pp. 850-851; Pfeiffer, supra, 200 Cal.App.4th at p. 1572.) And
again, the fact that the EIR identified various measures designed to ensure that no
significant impacts occur does not mean that without these measures the impact would be
significant.
D.
Geological Impacts
Keep 70 Safe further asserts the final EIR “inconsistently concluded” that the
project would have less than significant geological impacts because it finds a low risk of
potential soil expansion while also finding “ ‘[t]he project area is located on soils known
to be expansive . . . and have low strength[.]’ ” Keep 70 Safe also notes the final EIR
13 Keep 70 Safe also mentions the final EIR’s conclusion that “[n]o new sources of
light or glare are anticipated,” and suggests this is inconsistent with another proposed
mitigation measure for shielding nighttime construction lighting. However, Keep 70 Safe
does not actually argue this particular alleged inconsistency renders the finding of less
than significant impact unsupported by substantial evidence.
37
identifies a measure to be used to “minimize the potential for soil instability” during the
construction process.
However, setting this claimed inconsistency aside, Keep 70 Safe is not contending
that the project is impacting the soil quality at all, or that it will exacerbate an existing
condition of soil expansiveness. As Caltrans notes, expansive soils are an existing
condition. An agency is “not required to analyze the impact of existing environmental
conditions” on a project, but rather, “the project’s impact on the environment.”
(California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62
Cal.4th 369, 377.) Nor does the soil instability minimization measure noted above
support Keep 70 Safe’s argument that without this measure the project would
significantly impact the environment. Keep 70 Safe has not demonstrated a lack of
substantial evidence to support the finding of less than significant impact.
E.
Hydrology/Water Quality
Keep 70 Safe also claims that the finding of less than significant impact to
hydrology and water quality is unsupported because the final EIR “acknowledged the
[p]roject would result in an increase in new impervious surfaces, increasing the discharge
of sediments and other pollutants in stormwater runoff,” as well as “increas[ing] erosion
and soil deposition into surface waters during the construction phase.” Keep 70 Safe also
notes a reduced ability for groundwater recharge, resulting in longitudinal floodplain
encroachment.
Once again, Keep 70 Safe does not lay out the final EIR’s analysis with respect to
the impact the increase in impervious surfaces would have on hydrology. The EIR
explains why no significant impact will occur. Without setting forth that reasoning in the
opening brief, Keep 70 Safe cannot successfully challenge the sufficiency of the evidence
supporting the conclusion reached. (King & Gardiner, supra, 45 Cal.App.5th at pp. 850-
851; Pfeiffer, supra, 200 Cal.App.4th at p. 1572.)
38
With respect to water quality and storm water runoff, the final EIR sets forth the
strict regulatory scheme applicable to the project, describes the affected watershed in
detail, and then provides five paragraphs of analysis, ultimately concluding a less than
significant impact would result. And again, Keep 70 Safe does not lay out this analysis.
Instead, Keep 70 Safe notes that the EIR “proposed three [mitigation measures], requiring
the use of [best management practices], operational protocols, and permanent treatment
measures.” (Italics omitted.) More precisely, these measures explain that Caltrans would
be complying with a National Pollutant Discharge Elimination System (NPDES) permit,
implementing a Storm Water Pollution Prevention Plan (SWPPP), complying with
existing best management practices, and evaluating those practices to determine whether
or not increased volumes meet approved thresholds contained in Caltrans’s Municipal
Separate Storm Sewer Systems (MS4) permit. As stated previously, an EIR may rely on
compliance with legal requirements or standards in determining whether there are
significant impacts. (Tracy First, supra, 177 Cal.App.4th at p. 934 & fn. 7.) Keep 70
Safe has not carried its burden of demonstrating insufficient evidence.
F.
Transportation and Emergency Response/Evacuation Plans
Keep 70 Safe additionally complains that the final EIR found the project would
have less than significant impacts to transportation and emergency response/evacuation
plans “despite conceding there would be ‘temporary disruptions to the existing highway
during the construction period.’ ” However, the final EIR also makes clear that two-way
operation of SR 70 would be maintained for most of the construction period, any one-
way traffic control would be limited to off-peak times, and Caltrans would coordinate any
period of one-way traffic control with emergency services. Keep 70 Safe claims that
these measures are mitigation measures, so Caltrans could not conclude the project’s
impact is less than significant without mitigation. Not so. As Caltrans explains,
implementation of a traffic management plan is a standard practice for all highway
39
projects and not a mitigation measure. (See Berkeley Hillside Preservation v. City of
Berkeley (2015) 241 Cal.App.4th 943, 960.) Moreover, notwithstanding the assertion
that Caltrans has simply “presumed” that these traffic management procedures will work,
this assertion does not satisfy Keep 70 Safe’s burden of demonstrating a lack of
substantial evidence, particularly in light of the fact that it, once again, has not provided
the EIR’s full analysis on this point. (King & Gardiner, supra, 45 Cal.App.5th at pp.
850-851; Pfeiffer, supra, 200 Cal.App.4th at p. 1572.)
Keep 70 Safe also takes issue with the conclusion that the project’s “induced -
travel” impacts would be less than significant, and further asserts that the final EIR failed
to disclose or analyze the project’s cumulative transportation impacts. We again
conclude Keep 70 Safe has not carried its burden of setting forth all of the evidence
favorable to Caltrans and showing why it is lacking. (King & Gardiner, supra, 45
Cal.App.5th at pp. 850-851; Pfeiffer, supra, 200 Cal.App.4th at p. 1572.)
G.
Hazardous Materials
Finally, Keep 70 Safe’s argument with respect to the conclusion that the project
would not significantly impact the release of hazardous materials is another attempt to
cast standard practices, the following of which would result in a less than significant
impact, as mitigation measures designed to mitigate a significant impact. For the reasons
stated above with respect to the traffic management plan, such standard practices are not
mitigation measures.
As Keep 70 Safe has not described these standard practices in the opening brief, it
has not carried its burden to demonstrate the conclusion of a less than significant impact
is unsupported by substantial evidence.
40
DISPOSITION
The judgment is affirmed. Caltrans is entitled to costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1), (2).)
/s/
HOCH, J.*
We concur:
/s/
HULL, Acting P. J.
/s/
MAURO, J.
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
41