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v. DEPARTMENT OF TRANSPORTATION et al., Defendants and Respondent; LAKES
ENTERTAINMENT, INC., Real Party in Interest and Respondent; SHINGLE SPRINGS
BAND OF MIWOK INDIANS, et al., Interveners and Respondents. VOICES FOR RURAL LIVING et al., laintiffs and Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant and Appellant; SHINGLE SPRINGS
BAND OF MIWOK INDIANS et al., Interveners and Appellants. COURT OF APPEAL, THIRD APPELLATE
DISTRICT, C046372, C048141 APPEAL from
a judgment of the COUNSEL Louis B.
Green, County Counsel, Edward L. Knapp, Assistant County Counsel; The
Diepenbrock Law Firm, Diepenbrock Harrison, Mark D. Harrison, Michael V. Brady,
Andrea A. Matarazzo and Michael E. Vinding for Plaintiff, Appellant and
Respondent County of El Dorado. Law Offices
of Stephan C. Volker, Stephan C. Volker and Joshua A.H. Harris for Plaintiff, Appellant
and Respondent Voices for Rural Living and Shingle Springs Neighbors for
Quality Living. Sonnenschein
Nath & Rosenthal, Nicholas C. Yost, Paula M. Yost and Kathleen Boergers;
Brigit S. Barnes & Associates, Brigit S. Barnes and Karin E. Schwab;
Clement, Fitzpatrick & Kenworthy and Anthony Cohen for Intervener and
Appellant Shingle Springs Band of Miwok Indians and Real Party in Interest and
Appellant Lakes Entertainment, Inc. Morrison
& Foerster, Michael H. Zischke, Donna R. Black, David C. Levy and R. Chad Hales
for Defendant and Appellant Department of Transportation. Morrison
& Foerster, Michael H. Zischke, Donna R. Black and David E. Levy;
Sonnenschein Nath & Rosenthal, Nicholas C. Yost and Paula M. Yost for
Defendant and Respondent Department of Transportation, Intervener and
Respondent Shingle Springs Band of Miwok Indians and Real Party in Interest and
Respondent Lakes Entertainment, Inc. Brigit S.
Barnes & Associates, Brigit S. Barnes and Karin E. Schwab for Intervener
and Respondent Shingle Springs Band of Miwok Indians and Real Party in Interest
and Respondent Lakes Entertainment, Inc. Clement,
Fitzpatrick & Kenworthy and Anthony Cohen for Intervener and Respondent
Shingle Springs Band of Miwok Indians. OPINION DAVIS, J. The Shingle Springs
Band of Miwok Indians (the Tribe) is a federally recognized tribe consisting of
334 individuals, 18 of whom reside on the Tribe’s 160-acre rancheria (the Rancheria) located in El Dorado County, a
short distance from Highway 50, but without a vehicle interchange nearby. In 2000, Seeking to fully realize the
benefits of its constitutional prerogative, the Tribe has proposed the
construction of a casino and hotel complex and adjacent parking structure on
its Rancheria, and a freeway interchange on nontribal property connecting the
Rancheria directly to Highway 50. The
size of the proposed development is vast in comparison to other development in
the county and region. The 381,500
square-foot casino and hotel alone exceeds the size of Our role here is not to address questions concerning the
wisdom, policy implications, or economics of allowing Nevada-style gaming on
Indian land in This action
under the California Environmental Quality Act involves two appeals, which we
have consolidated.[i]
In the first appeal, the appellants challenge an EIR that the Department
of Transportation (Caltrans) used to approve the freeway interchange project on
U.S. Highway 50. Appellants
Voices for Rural Living and Shingle Springs Neighbors for Quality Living
(Voices) challenge the EIR on numerous other grounds, including project
segmentation, environmental impacts, alternatives, and public input. We agree with Voices’ challenge regarding the
EIR’s failure to consider the alternative of a smaller casino and hotel. The EIR must consider and analyze the
alternative, or alternatives, of a smaller hotel and casino complex. In the
second appeal, Caltrans, the Tribe, and Lakes Entertainment appeal from an
order finding that Caltrans’ return to the peremptory writ of mandate was
inadequate on the issue of whether the transportation conformity approach met
the state air quality standard for ozone.
We agree with these parties that we are precluded from considering this issue
because County and Voices failed to exhaust their administrative remedies
regarding it. Background The Tribe
and its reservation, the Shingle Springs Rancheria, are federally recognized;
the reservation is held in trust by the Bureau of Indian Affairs (BIA) for the
Tribe’s benefit. (25 U.S.C. §
479a-1.) The U.S.
Highway 50 interchange project will provide the Tribe with direct access to its
property, which is close to Highway 50. The Tribe
is paying for the cost of the interchange.
The proposed interchange design, a “flyover” (fly over the highway)
design to provide access to the Rancheria while minimizing other development,
will be built entirely within Caltrans’ Highway 50 right-of-way and a five-acre
parcel leading up to the Rancheria; County has no jurisdiction within the
boundaries of the proposed interchange. According
to County, the hotel and casino complex will be one of the largest
commercial developments in the county, both in size and traffic
generation. The complex will occupy 44 acres
of the 160-acre Rancheria, employ around 1,500 persons, and include a
238,500 square-foot casino, a five-level, 250-room, 143,000 square-foot hotel,
and parking to accommodate 3,000 cars (including a five-level parking structure). Caltrans
approved the interchange project based on a final “Environmental Impact Report
[EIR]/Environmental Assessment [EA].”
This is a joint document prepared pursuant to CEQA and the National
Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.). (See Cal. Code Regs., tit. 14, §§ 15170,
15222, 15226 [requiring or encouraging preparation of joint CEQA/NEPA
documents]; the CEQA Guidelines (tit. 14, Cal. Code Regs., § 15000 et
seq.), binding on all state agencies, are regulatory guidelines that implement
CEQA--Citizens of Goleta Valley v. Board
of Supervisors (1990) 52 Cal.3d 553, 564, fn. 3 (Citizens of Goleta Valley).)
The
National Indian Gaming Commission (NIGC), working with the BIA, drafted the EA
portion of the final EIR/EA; this portion focused on the on-reservation and
related impacts of the proposed hotel and casino project. Caltrans and the BIA then prepared the final
EIR/EA for the interchange project, with Caltrans acting as the lead agency for
the CEQA analysis and the BIA acting as the lead agency for the NEPA
analysis. The EA
imposed mitigation measures on the hotel and casino project covering soil
erosion, water resources, air quality, biological resources, noise and visual
resources. In light of these measures,
the hotel and casino project was found to have no significant impact. This meant that an environmental impact
statement for the hotel and casino under NEPA was not required. Caltrans
and the BIA subsequently approved the final EIR/EA as to the interchange
project. In the final EIR, Caltrans used
a three-step approach. First, Caltrans
independently analyzed and incorporated the EA; using that information,
Caltrans generally analyzed the environmental impacts of the hotel and casino
as indirect impacts of the interchange project.
Then Caltrans took the analysis to a second level. Caltrans analyzed the interchange and
hotel/casino together as to the traffic-related noise, air quality and
transportation impacts; this is because Caltrans acknowledged that “the casino
development [would] comprise nearly all of the traffic volumes for the
interchange.” Finally, Caltrans prepared
its own analyses regarding growth-inducing impacts and cumulative impacts of
the interchange and hotel/casino. After
imposing various mitigation measures, Caltrans concluded the interchange would
not result in any significant and unavoidable adverse impacts to the
environment. County and
Voices filed petitions for writ of mandate challenging the adequacy of the
final EIR/EA under CEQA. (The appeals
here involve CEQA challenges to the EIR drafted by Caltrans; County also filed
a federal action against the NIGC and the BIA regarding the EA for the hotel
and casino project.)[ii]
The trial court consolidated the petitions and denied them in all
respects, save one. The petitions were
granted on the issue of whether the EIR’s regional transportation conformity
approach to analyzing traffic-based air quality impacts met the state air
quality standard for ozone. Discussion 1. Standard Of
Review In reviewing CEQA issues on appeal,
we determine, independently from the trial court, whether the relevant
agency prejudicially abused its discretion either by failing
to comply with legal procedures or by making a decision unsupported by
substantial evidence. (Citizens of Goleta Valley, supra, 52
Cal.3d at p. 564; Planning &
Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th
892, 911-912.) Here, we
review the adequacy of an EIR. An EIR
carries out CEQA’s purpose of protecting “‘[T]he EIR
is the heart of CEQA’ and the integrity of the process is dependent on [its]
adequacy . . . . ‘“An evaluation of the
environmental effects of a proposed project need not be exhaustive, but the
sufficiency of an EIR is to be reviewed in the light of what is reasonably
feasible. . .” [Citations.]
. . .’ . . . [¶] . . . [¶] . . . A prejudicial abuse of
discretion occurs ‘“if the failure to include relevant information
precludes informed decisionmaking and informed public participation, thereby
thwarting the statutory goals of the EIR process.”’” ( 2. Analysis Of
Air Quality Impacts The subject of air quality comprises
two basic issues in these consolidated appeals.
The first issue involves a challenge to the method that was used to
analyze the project’s traffic-based air quality impacts involving ozone--the
transportation conformity determination.
The second issue comprises the whole of the second appeal, and involves
the transportation conformity determination’s relationship to the attainment of
the state ozone standard. We discuss
these in turn. A. Transportation
Conformity Determination In determining that the interchange
and hotel/casino would not have a significant traffic-based air quality impact
regarding certain ozone precursors at issue, the EIR relied exclusively on a
regional transportation conformity determination. County contends that, through this exclusive
reliance, the EIR failed to disclose and analyze, as required by CEQA, the
traffic-based ozone precursor emissions (reactive organic gases-- A brief
background is in order. The federal
Clean Air Act requires the adoption of health-based federal air quality
standards for certain air pollutants (including, as relevant here, the two
ozone precursors at issue), and requires that states adopt regional-based state
implementation plans (SIPs) to attain those standards. (42 U.S.C. §§ 7409, 7410.) The relevant SIP here notes that the The federal
Clean Air Act requires that federally approved transportation projects located
in nonattainment regions, such as the interchange project, must conform to
“mobile source emissions budgets” (i.e., traffic-based emissions standards)
established in the SIP. (See 42 U.S.C. §
7506.) For the In the EIR,
Caltrans concluded that the interchange/hotel-casino project would not have a
significant impact on air quality regarding County
contends that this regional air quality analysis improperly fails to disclose
and analyze the specific traffic-based In the EIR,
Caltrans noted that the air quality analysis was done at a “project level,” stating, “[t]his project-level
transportation conformity determination compares forecasts of regional air
pollutants to thresholds, sometimes referred to as ‘emissions budgets.’” Caltrans later elaborated in the EIR: “The general approach used in conducting the
transportation air quality conformity analysis was to develop forecasts of
regional mobile source emission levels, including emissions associated with the
[interchange and hotel/casino] project, and compare these emission levels to
previously[]established thresholds.
The thresholds, referred to as ‘emissions budgets,’ were
established during development of the There is a
clear problem in relying exclusively
on this regional transportation conformity approach to analyze the interchange
and hotel/casino’s specific traffic-based impacts involving the ozone precursors
In this
way, the specific traffic-based Failure to
disclose and analyze the interchange/hotel-casino’s known (or estimated)
traffic-based The
situation here is similar to that in Berkeley
Jets. There the court found an EIR
deficient in addressing the nighttime noise impacts to residential
neighborhoods from an airport expansion project. The EIR established a 65-CNEL (Community
Noise Equivalent Level) as the sole threshold for significant noise exposure
and identified which houses would be significantly affected. (Berkeley
Jets, supra, 91 Cal.App.4th at pp. 1373-1374, 1378, 1381.) Any increase in noise under this 65-CNEL
threshold was excluded from analysis in the EIR. (Id. at
p. 1373.) The court rejected this
approach, explaining that the airport expansion project could increase a
community’s nighttime noise level to 64.9 CNEL, and under the sole criterion of
the 65-CNEL threshold, this increase would not create a significant impact for
purposes of CEQA. (Id. at p. 1381.) The flaw in
this approach was its failure to provide, in addition to the 65-threshold
analysis, the most fundamental information about the project’s noise impacts,
including the existing ambient noise levels, the number and frequency of
additional nighttime flights, and their effect on ambient noise levels and
sleep. (Berkeley Jets, supra, 91 Cal.App.4th at pp. 1381-1382.) Similarly, here, by establishing the regional
transportation conformity emissions budgets of the SIP as the sole threshold of
significance, the EIR failed to disclose and analyze the most fundamental
information about the interchange/hotel-casino’s traffic-based air quality impacts
involving Another way
to look at this is through the prism of impacts that an EIR must assess for a
given project. An EIR must evaluate a
project’s significant (1) direct impacts to the environment (those caused by
the project and occurring at the same time and place); (2) reasonably
foreseeable indirect impacts (those caused by the project but later in time or
farther removed in distance); and (3) cumulative impacts (the project’s
incremental impact when added to other related projects). (CEQA Guidelines, §§ 15358, 15355,
15126.2.) As we shall explain, here the
EIR in effect used only a cumulative impact air quality analysis to evaluate
project-specific impacts. A regional
transportation conformity approach based on an SIP may provide a sufficient
analysis of cumulative impacts. This is
because a cumulative impact analysis examines the incremental impact of a
project when added to other closely related existing and reasonably foreseeable
projects. (CEQA Guidelines, § 15355,
subd. (b); Pub. Resources Code, § 21083, subd. (b)(2).) And a lead agency may determine that a
project’s cumulative impact is insignificant if the project will comply with a
previously approved plan that is specifically designed to reduce the cumulative
problem within the geographic area in which the project is located (such as an
air quality plan; here, the SIP). (CEQA
Guidelines, § 15064, subd. (h)(3).)
(This dispenses with County’s contention that the transportation
conformity determination failed to analyze properly the cumulative impacts of
the interchange operation regarding the ozone precursors.) However, as
County points out, a cumulative or regional impact analysis cannot be used to
trivialize or mask project-specific impacts.
(See Communities for a Better
Environment, supra, 103 Cal.App.4th at p. 118; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d
692, 718.) That is what happened
here. The regional-based cumulative
impact analysis afforded by the transportation conformity determination was
deemed the complete traffic-based air
quality analysis for the Caltrans
argues that County’s challenge to the regional transportation conformity
approach is nothing more than an improper challenge to Caltrans’ discretion to
choose the methodology by which to evaluate air quality impacts. (See Greenebaum
v. City of Los Angeles (1984) 153
Cal.App.3d 391, 412.) In support of this
argument, Caltrans cites to Appendix G of the CEQA Guidelines. Section III of the Sample Questions contained
in Appendix G sets forth a framework by which EIRs can analyze air quality
impacts. As relevant under section III
of Appendix G, Caltrans argues, the regional conformity approach aligns with
applicable air quality plans and standards, and does not result in any
cumulatively considerable net increase of any criteria pollutant for which the
project region is in nonattainment (including ozone precursors). (CEQA Guidelines, Appen. G, § III, subds. a),
b), c).) Caltrans also argues that the
regional conformity approach is well-suited to the transient nature of
transportation emissions and the regional nature of the ozone problem. There is a
problem with Caltrans’ methodology argument.
While a lead agency has discretion to choose the method to evaluate
environmental impacts, the method chosen must provide an adequate
analysis. This is illustrated by Berkeley Jets, where the court rejected
the use of the 65-CNEL threshold “[m]ethodology” as the “[s]ole [i]ndicator” of
significant effects from noise. (Berkeley Jets, supra, 91 Cal.App.4th at
pp. 1377, 1381-1382.) Similarly, as we
have seen, the regional transportation conformity approach fails as the sole
indicator of significant effects from County
raises three methodology issues of its own.
First, it claims the emissions model used for the regional
transportation conformity approach, the EMFAC7F, was outdated in its car-fleet
mix (too few SUVs). Substantial evidence
shows, however, that this model was appropriate and current for use in that
approach when the EIR was drafted. The
appropriateness of using the EMFAC7F model to determine the project’s specific
traffic-based emissions and contributions of Second,
County claims that, instead of the regional transportation conformity approach,
the EIR should have used the thresholds of significance for project air quality
impacts set forth in the CEQA guide from the El Dorado County Air Pollution
Control District (the District CEQA Guide).
This matter can be considered on remand when the project’s specific
traffic-based emissions and contributions of And third,
County challenges Caltrans’ disavowal of the URBEMIS emissions results, which
County claims were the only project-specific air quality results noted in the
EIR. This matter can also be considered
on remand where the focus will be on a project-specific disclosure and analysis
of B. The Second Appeal (C048141)--Transportation Conformity
Determination and the State Ozone Standard In the second appeal in this matter,
which we have consolidated with the first, Caltrans, the Tribe and Lakes
Entertainment have appealed from an order rejecting Caltrans’ further return to
the writ of mandate. (See Barrett v. Stanislaus County Employees
Retirement Assn. (1987) 189 Cal.App.3d 1593, 1601, fn. 4 (Barrett) [such an order is
appealable].) The substantive issue in
this appeal is whether the regional transportation conformity determination,
which, as discussed above, relied on federal air quality standards regarding ozone,
accounted for the ozone precursors In its
ruling on the writ of mandate, the trial court stated: “In one important respect, the transportation
conformity determination for the . . . interchange[/hotel-casino project] may
not have provided an adequate method for determining the significance of the
[project’s operational] air quality impacts under CEQA. . . . [¶] . . . [¶] [T]his matter must be
remanded to Caltrans for clarification of whether the mobile source The federal
Clean Air Act’s ambient air quality standard for ozone is 0.12 parts per
million (ppm). Largely based
on this federal-quantitative/state-qualitative distinction as to attainment
specificity, Caltrans explained in returns to the writ that the transportation
conformity determination qualitatively demonstrated that the state standard was
being achieved; however, a quantitative demonstration for the state standard
was not feasible. The trial
court was skeptical of Caltrans’ explanation, reasoning that numerical data
existed that could be correlated with the state quantitative standard of 0.09
ppm. In an order, the court concluded
that Caltrans’ return did not satisfy the requirements of the writ. Caltrans (as well as the Tribe and Lakes
Entertainment; collectively for this section of the discussion, Caltrans) then
appealed this order. On appeal,
Caltrans contends that the issue here--whether the regional transportation
conformity determination discussed above (i.e., whether the project’s
conformity with the regional mobile source emissions budgets for To obtain
judicial review of an agency’s alleged violations of CEQA, an aggrieved party
must first exhaust its administrative remedies by presenting, orally or in
writing, its specific objections to the agency decisions in question. (Pub. Resources Code, § 21177, subd. (a); Resource Defense Fund v. Local Agency
Formation Com. (1987) 191 Cal.App.3d 886, 894 (Resource Defense Fund); Coalition
for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194,
1197-1198 (Coalition for Student Action);
Remy et al., Guide to the California Environmental Quality Act (10th ed. 1999)
pp. 578-579 (hereafter Remy, CEQA Guide).)
The purpose of the exhaustion doctrine is to ensure that public agencies
have a chance to respond to articulated factual issues and legal theories
before their actions are subjected to judicial review. (Remy, CEQA Guide, supra, at p. 579.) “If the doctrine did not exist, parties
disputing the wisdom of agency actions would often refrain, for purposes of
political or litigation strategy, from revealing their alleged grievances to
agency decisionmakers; and many disputes that could be resolved at the agency
level would needlessly burden the courts.”
(Ibid.) Although a
plaintiff need not have personally
raised the issue (so long as he or she objected to the project on some basis in
the administrative proceedings), “the exact issue raised in the lawsuit must
have been presented to the administrative agency so that [the agency] will have
had an opportunity to act and render the litigation unnecessary.” (Resource
Defense Fund, supra, 191 Cal.App.3d at p. 894; Pub. Resources Code,
§ 21177, subds. (a), (b).) If any
party seeks judicial relief without having first exhausted its administrative
remedies, the court must deny relief for lack of jurisdiction. (Abelleira
v. District Court of Appeal (1941) 17 Cal.2d 280, 292-293; Remy, CEQA
Guide, supra, at p. 579.) The exhaustion doctrine is jurisdictional at
least insofar as a court “does not have the discretion to refuse to apply the
doctrine in cases where it applies.” (Azusa Land Reclamation Co. v. Main San
Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1216; Sacramento County Deputy Sheriffs’ Assn. v.
County of Sacramento (1990) 220 Cal.App.3d 280, 285-286; see also Hood v. Hacienda La Puente Unified School
Dist. (1998) 65 Cal.App.4th 435, 440-441 (Hood).) The closest that anyone came in the EIR
administrative proceedings to raising the substantive issue that County and
Voices seek judicial review of--i.e., whether the regional transportation
conformity determination encompasses levels of “Because
the EIR/EA improperly uses federal conformity criteria for CEQA purposes, it
does not contain an actual CEQA-compliant air quality impact analysis. . .
. Instead, the EIR/EA should use the
thresholds of significance [for determining significant environmental impact]
adopted by the El Dorado County Air Pollution Control District . . . in its . .
. ‘District CEQA Guide’ . . . . The
Guide contains specific, user-friendly methodologies for examining
project-specific impacts of emissions of “ “CO State and Federal Ambient Air
Quality Standards “PM10 State and Federal Ambient Air
Quality Standards “The These
comments do not mention the state ozone standard of 0.09 ppm (although the
draft EIR, at which these comments were directed, did), or any state ozone
standard for that matter. More
importantly, the comments do not raise any issue regarding the transportation
conformity determination and the attainment of the state ozone standard. The comments are couched in the context of
the Air Pollution Control District’s standards (District CEQA Guide) and the
EIR’s general conformity analysis (an
analysis which must be distinguished from the EIR’s transportation conformity
analysis; the EIR’s general conformity analysis covered
nontransportation-related air quality impacts, for example,
construction-related exhaust emissions for the project’s construction). The two ozone elements listed in these
comments, We conclude
that the doctrine of administrative exhaustion precludes us from considering
the issue of whether the transportation conformity determination encompassed
levels of Not so
fast, argue County and Voices. They
raise three points they claim counter our conclusion. We take these in turn. First, County
points to comments it made in the administrative proceedings before the BIA and
NIGC involving the EA. These
comments are attached as an appendix to the EIR. In those comments, County (1) noted that it
(as a jurisdiction) “violates the state and federal ambient air quality
standard for the criteria pollutant ozone”; (2) stated that the air quality
discussion should indicate adoption and compliance “with standards no less
stringent than federal and state air quality standards”; and (3) noted that it “is
classified as nonattainment for ozone . . .; therefore, the impact of this
operation on long-term attainment status should be determined.” However, although the EIR incorporated the
EA, these comments were made in a different administrative proceeding to a
different lead agency on a different environmental document and concerned a
different air quality analytical method (County concedes these comments were
made in the context of a general conformity analysis rather than the
transportation conformity approach to traffic-based air quality impacts the EIR
employed). Second,
County contends that Caltrans untimely raised the exhaustion argument. Several courts have concluded (this one
apparently not among them) that the failure to exhaust an administrative remedy
is a jurisdictional issue that may be raised at any time. (See Hood,
supra, 65 Cal.App.4th at p. 441, and cases cited therein.) In any event, it was the trial court’s writ
ruling that first raised the issue of whether the transportation conformity
determination permitted attainment of the state ozone standard. Caltrans attempted to answer this issue in
returns to the writ, the trial court deemed these answers insufficient in an
order on the return, and Caltrans appealed from that order (raising the
exhaustion issue). This was timely. And it was proper. (Barrett,
supra, 189 Cal.App.3d at p. 1601, fn. 4 [as stated previously, an order
finding inadequate a respondent’s return to peremptory writ of mandate is
appealable].) This also dispenses with
County’s claim that Caltrans is improperly appealing from the trial court’s
original writ rulings rather than the subsequent order on the return. Nor did Caltrans invite any error. Caltrans did not invite the trial court to
find the transportation conformity determination insufficient. And last,
County quotes a response from Caltrans to an air quality comment made during
the EIR proceedings. Caltrans responded
that it “applies its own guidelines uniformly across the state in order to
ensure conformity with the SIP and with national and state air quality
standards,” and that “conformity with federal and state requirements is the
important analytical question, and thus . . . state guidelines should direct
this analysis.” Two quick points are in
order. One, these are comments from Caltrans, not from County or
Voices. Two, Caltrans made these
comments in explaining in part why it did not use the air quality standards set
forth in the local Air Pollution
District CEQA Guide. 3. Segmenting
Environmental Review Voices contends that Caltrans
improperly segmented its environmental review of the interchange from that of
the hotel and casino. This resulted
in separate reviews that insufficiently accounted for the environmental effects
of the whole project. We
disagree. First we discuss the legal
sufficiency of the EIR’s approach in reviewing the interchange and the
hotel/casino. Then we tackle Voice’s
contentions regarding the EIR’s alleged failure to address specific combined impacts of the interchange and
the hotel/casino. A. Segmentation--Legal
Sufficiency An EIR must
consider a project’s significant direct, indirect and cumulative impacts to the
environment. (Pub. Resources Code, §§
21061, 21100, 21065, 21083; see Communities
for a Better Environment, supra, 103 Cal.App.4th at p. 114; CEQA
Guidelines, §§ 15126.2, 15355, 15358.)
“Where an individual project is a necessary precedent for action on a
larger project, . . . with significant environmental effect, an EIR must address
itself to the scope of the larger project.”
(CEQA Guidelines, § 15165.)
And an EIR must include an analysis of the environmental effects of
other action if that action (1) is a reasonably foreseeable consequence of the
initial project, and (2) will likely change the scope or nature of the initial
project or its environmental effects. (Laurel Heights Improvement Assn. v. Regents
of University of California (1988) 47 Cal.3d 376, 396 (Laurel Heights).) The hotel
and casino development is an indirect, clearly foreseeable consequence of the
interchange that will change the scope and nature of the interchange’s
environmental effects. The interchange
is a necessary precedent for the hotel and casino development. As such, the EIR must address itself to the
scope of that development. The question
is whether the EIR has properly done so in a legal sense. In
answering this question, we must first briefly summarize Caltrans’ legal
authority over the hotel and casino development. Pursuant to the federal Indian Gaming
Regulatory Act of 1988, authority over tribal gaming is exclusively federal;
the only power the states have over this enterprise is a limited, delegated
power to enter into tribal-state gaming compacts. (18 U.S.C. §§ 1166-1168; 25 U.S.C. §
2701 et seq.) California and the Tribe
have entered into such a compact. (Gov.
Code, § 12012.25, subd. (a)(44).)
Here, the federal agency with authority to permit the proposed casino on
the Rancheria, the NIGC, prepared and adopted an EA for the hotel and casino
development, with mitigation measures, pursuant to the federal environmental
quality law, NEPA; furthermore, the Tribe, under its compact with California,
must make good faith efforts to mitigate any and all off-reservation
environmental impacts. And, “[i]n
deference to tribal sovereignty, neither the execution of a tribal-state gaming
compact nor the on-reservation impacts of compliance with the terms of a
tribal-state gaming compact shall be deemed to constitute a project for
purposes of [CEQA].” (Gov. Code, §
12012.25, subd. (g).) Pursuant to
these jurisdictional limitations, Caltrans was foreclosed from preparing its
own fully enforceable EIR concerning the hotel and casino. The on-reservation impacts of that
development were properly the subject of federal environmental review. As we shall explain, Caltrans struck an
acceptable balance in the EIR between these jurisdictional limitations and the
requirements of CEQA. The EIR did not
improperly segment review of the interchange and the hotel/casino complex so as
to shortchange environmental review of the whole development. Direct
environmental impacts are caused by the project and occur at the same time and
place. (CEQA Guidelines, § 15358, subd.
(a)(1).) Indirect environmental impacts
are caused by the project and are later in time or farther removed in distance,
but are still reasonably foreseeable. ( After
independently examining the NIGC’s EA for the casino and hotel, Caltrans
incorporated the EA into the EIR and eventually approved the environmental
document as a joint EIR/EA with the BIA; BIA acted as the lead agency for NEPA
review and Caltrans acted as the lead agency for CEQA review. Using the EA as a basis, Caltrans included a
chapter in the EIR analyzing the environmental effects of the hotel and casino
as indirect effects of the interchange.
This chapter covered topography, geology, soils, seismicity, surface
water and drainage, flooding, groundwater, water quality, air quality, biological
resources, cultural resources, socioeconomic conditions, transportation, land
use, public services, noise, hazardous materials, and visual resources. Caltrans
then took this analytical approach a step further for what it deemed the most
pronounced impacts (principally off-reservation) from the interchange and the hotel/casino together. These impacts were likened to direct
impacts. In the EIR, Caltrans analyzed
the traffic-related transportation, noise, and air quality impacts of the
interchange combined with the proposed hotel and casino as if they were a
single project. The EIR’s discussion of
these impacts spanned nearly 80 pages, or almost a quarter, of the EIR’s
text. Finally,
the EIR devoted a separate chapter to analyzing the growth-inducing impacts of
the interchange together with the hotel and casino, and another chapter to
analyzing the cumulative impacts of the interchange that accounted for the
casino and hotel. Thus, the
EIR evaluated generally the environmental impacts of the hotel and casino as
indirect effects of the interchange project.
The EIR analyzed specifically the most pronounced impacts (principally
off-reservation) resulting from the interchange and the hotel/casino together
(traffic-related transportation, noise and air quality impacts) as if those
impacts were direct effects of the interchange combined with the
hotel/casino. And the EIR examined the
growth-inducing and cumulative impacts of the interchange and the
hotel/casino. In this way, Caltrans’ EIR
properly considered the indirect, the direct, and the cumulative impacts of the
interchange and hotel/casino. As the
trial court noted, this “minimized the risk attendant upon project
segmentation: a full assessment of the
combined and cumulative environmental effects of the interchange and the hotel
and casino was prepared and made available to inform decisionmaking and public
participation in the project approval process.”
Finally,
the situation here is not like those presented in decisions that have found
improper segmentation, such as Citizens
Assn. for Sensible Development of Bishop Area v. County of Inyo (1985)
172 Cal.App.3d 151 and San Joaquin
Raptor/Wildlife Rescue Center v. County of Stanislaus (1994)
27 Cal.App.4th 713. In Citizens
Assn. for Sensible Development, the lead agency approved a proposed
shopping center by dividing two related portions of the project--a general plan
amendment and a tentative tract map approval--into two projects. The lead agency then environmentally reviewed
the “two projects” separately and adopted separate negative declarations (no
EIR required) for each. (Citizens Assn. for Sensible Development,
supra, 172 Cal.App.3d at pp. 165-166.)
In San Joaquin Raptor, the EIR
for a residential development that also required a sewer system expansion
contained no analysis of their combined environmental effects, either as two
severable projects or as one project.
For example, the EIR stated the development project would consume only
11 acres of prime farmland, never mentioning that the sewer expansion would
take another 12 acres of such farmland.
(San Joaquin Raptor, supra, 27
Cal.App.4th at p. 733.) We conclude
that Caltrans did not improperly segment the review of the interchange from
that of the hotel and casino under CEQA law.
We now turn to more factual-based segmentation issues. B. Segmentation--Specific
“Combined” Impacts i. Water quality Voices contends the EIR failed to
address the combined increase in drainage-related impervious surfaces from both
the casino/hotel and the interchange. We
disagree. The EIR, relying
on the EA, notes that the casino and hotel will create 29 acres of impervious
surfaces. The drainage and water quality
impacts from these surfaces, states the EIR, will be reduced to less than
significant effects from the following mitigation measures imposed in the
EA: an on-site detention basin;
100-year-storm surface drainage pipes; and a series of oil/grease/sediment
traps. The interchange itself, states
the EIR, will add only 2.27 acres of impervious surface and 1.75 acres of
other altered surfaces (slopes, fill areas, graded swales, etc.). The EIR concludes that the interchange will
present no cumulative drainage impacts in light of existing culverts and
specified drainage mitigation measures.
The EIR in this respect stands in contrast to the one described
just above in San Joaquin Raptor. Voices also
claims the EIR failed to address the impacts of a potential failure of the
wastewater treatment system. But
Caltrans, in its responses to EIR comments, explained why (too speculative). We conclude
the EIR adequately addresses these water quality contentions from the
perspective of the interchange and the hotel and casino. ii. Soil
erosion Voices
argues that the EIR never considered the grading impacts of the casino and
hotel. That is not true. The soils portion of the EIR was based on a
“Geology, Soils and Seismicity Technical Study” that analyzed casino and hotel
grading as an indirect effect of the interchange. The EIR itself stated, relying on this
technical study: “Appendix G of the
Final EA contains the geographic extent of grading proposed by the hotel and
casino project. . . . The [EA] concluded
that the hotel and casino would result in a less-than-significant effect
[regarding soils] given the fact that development will occur on relatively
non-expansive soils; will comply with [the applicable] Grading, Erosion and
Sediment Control Ordinance [and with the Uniform Building Code]; and will
follow the construction specifications found in Appendix G of the Final EA.” Voices also
claims the EIR failed to address the grading impacts of the casino and hotel
together with the interchange. The
grading impacts of the casino and hotel, as just noted, were set forth in the
EA, which was incorporated into and discussed in the EIR. As also noted, those impacts were deemed less
than significant given certain conditions and requirements. The EIR further noted that the grading and
soil erosion impacts from the much smaller interchange portion encompassed
essentially the construction of the interchange’s proposed on- and
off-ramps. And those impacts were
reduced to less than significant pursuant to certain required standards
(grading ordinances, building codes, Caltrans’ standards). This is sufficient analysis for EIR
informational purposes. iii. Hazardous
materials Voices
asserts that the EIR’s finding that the project site contains serpentine rock
which may release asbestos (if crushed) cannot be squared with the incorporated
EA’s finding (stated in the EIR) that the project site contains no hazardous
materials “contamination.” This
assertion fails for two reasons. First,
as a matter of semantics, “contamination” is the state of being contaminated, a
condition the project site is not in.
Second, and more importantly, the EIR and the incorporated EA both
recognize this asbestos potential from serpentine rock and impose measures to
reduce these potential effects to less than significant. iv. Noise Voices
raises three contentions as to noise. First,
Voices contends the EIR’s noise analysis did not include the casino and
hotel. The EIR states that the existing
noise environment is dominated by Highway 50 traffic, so the EIR analyzed the
traffic-related noise effects of the interchange and the hotel/casino without a
distinction being made between them (since the casino development will comprise
nearly all of the interchange’s traffic volume). The EIR concludes that the increases in
traffic noise levels will be 1 to 4 dBA higher than present peak hour
traffic noise levels, and these increases are less than the threshold for
a substantial noise increase, which is set at 12 dBA. The EIR also notes from the incorporated EA
that the hotel and casino will generate relatively minor nontraffic noise that
has been mitigated to insignificance through siting and shielding requirements,
design specifications, and construction standards. Second,
Voices challenges the EIR’s methodology for the noise analysis. Voices argues that the analysis ignores all
but four of the noise modeling site locations, as well as shifts in
traffic volumes and levels of service.
But Voices concedes in its brief that the EIR’s noise assessment
measured four locations near the interchange and predicted noise levels at
10 potential receivers nearby. This
methodology seems appropriate for analyzing the noise from the interchange and
the hotel/casino in a traffic-dominated noise environment. (See Greenebaum,
supra, 153 Cal.App.3d at pp. 412-413 [agency discretion to choose
methodology].) Finally,
Voices complains that the EIR failed to identify noise standards from County’s
General Plan. Only standards from
“applicable” general plans need be discussed in an EIR, and Voices does not
seriously dispute Caltrans’ claim that the general plan standards are
inapplicable here. (CEQA Guidelines, §
15125, subd. (d).) Moreover, Voices does
not challenge the threshold of significance used by the EIR--the 12 dBA
threshold. v. Aesthetics Voices
contends the EIR failed to address the visual impacts of the interchange and
the hotel/casino together, as well as the issue of light pollution. The EIR
addresses the visual impacts of the interchange and the hotel/casino. These two basic structures occupy distinct
visual settings that do not lend themselves to collective visual analysis; the
interchange is on a freeway and the casino development is located behind, and
nestled into, an existing wooded hillside away from the freeway. As for
light pollution, the Tribe, as a matter of comity, has obligated itself to have
the hotel and casino conform to the relevant County ordinances regarding
outdoor lighting, including County Ordinance No. 17.14.170. Through this conformance, the character of
the night sky should be minimally impacted, and even then for only a few
hundred feet with the range of the hotel/casino lighting. vi. Biological
resources Voices
claims that the EIR addresses the impacts of the interchange on biological
resources without considering such impacts from the much larger disturbance
(nearly 10-fold) of the hotel and casino.
We disagree. The EIR,
relying on the EA, discussed the impacts to biological resources from the hotel
and casino. The topics covered included
wetlands/jurisdictional waters, special status species, and nesting raptors. The EIR noted the mitigation measures for
these resources. The EIR also discussed
the impacts to biological resources from the interchange. As noted in the EA, a Natural Environment
Study covering biological resources was developed for Caltrans’ consideration
in reviewing the interchange project. In
the EIR, Caltrans adopted the mitigation measures recommended in this study;
these mitigation measures were consistent with those in the incorporated
EA. vii. Growth-inducing
impacts Voices
complains that the EIR ignored the combined development pressures of the
interchange and the hotel/casino. Voices
claims the EIR ignored the casino’s placement into a rural-residential setting,
downplayed the potential for additional nearby commercial development with its
attendant socioeconomic effects, failed to account for the impacts from 1,500
casino employees, and failed to consider the socioeconomic impacts on South
Lake Tahoe. We disagree. The EIR
devotes a chapter, albeit a small one, to growth-inducing impacts from the
interchange together with the hotel/casino.
In that chapter, the EIR acknowledges that the interchange site is
located in a rural, large-parcel residential area nine miles west of
Placerville. The chapter continues. The interchange is being constructed for a
single purpose: to provide unrestricted
access to the Rancheria, which in turn will allow development of a hotel and
casino complex. The interchange is
designed to provide access only to and from the Rancheria, without any
engineering way to “ramp off” to neighboring communities. Off-Rancheria development will not be
facilitated by the interchange.
Growth-inducing impacts from the hotel and casino comprise a growth in
jobs (1,500 employees) and possibly in housing demand. The EIR details the area’s sufficient
capacity to handle this demand. The EIR
also addresses the socioeconomic character of the surrounding area, including
South Lake Tahoe, concluding that the project will not affect or impede planned
economic growth (which County will still control), divide any neighborhoods,
disrupt community cohesion, or displace any people or housing. 4. Interchange-Specific
Impacts |