Case No. S260789

IN THE SUPREME COURT OF CALIFORNIA

______________________________________

REPLY ON PETITION FOR REVIEW______________________________

COMMUNITY VENTURE PARTNERS,

Petitioner and Respondent

vs.

MARIN COUNTY OPEN SPACE DISTRICT,

Defendant and Appellant

_______________________________

After a Decision by the Court of Appeal,

First Appellate District, Division 4 (No. A154867)

Marin County Superior Court Case No. CIV 1701913

Judge: Honorable Paul M. Haakenson

_____________________________

Michael W. Graf (SB No. 136172)

Law Offices

227 Behrens Street

El Cerrito, California 94530

Tel: (510) 525-1208

mwgraf@aol.com

Counsel for Petitioner/Respondent Community Venture Partners

TABLE OF CONTENTS

Page

I. SUMMARY OF REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. THE DISTRICT’S ACTIONS ARE FALSELY PRESENTED AS COMMENDABLE

BY THE DISTRICT’S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. THE ISSUE OF HOW TO CONSIDER SOCIAL EFFECTS REMAINS

OBTUSE AND INCONSISTENT BETWEEN THE CEQA GUIDELINES

AND APPLICABLE CASE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. The District’s Cases on Social and Recreational Effects Illustrate the

Need for Supreme Court Review... . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. SUPREME COURT GUIDANCE IS NEEDED TO CLARIFY HOW AN

AGENCY DECIDES A SECOND TIER PROJECT FALLS WITHIN THE

SCOPE OF A PRIOR PROGRAM EIR.. . . . . . . . . . . . . . . . . . . . . . . . . . . 16

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATION OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2

TABLE OF AUTHORITIES Page

Cases

Baldwin v. City of Los Angeles

(1999) 70 Cal.App.4th 819. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 20

Center for Sierra Nevada Conservation v. County of El Dorado

(2012) 202 Cal.App.4th 1156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16

Chico Advocates for a Responsible Economy v. City of Chico

(2019) 40 Cal.App.5th 839. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Citizens for a Megaplex-Free Alameda v. City of Alameda

(2007) 149 Cal.App.4th 91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Cleveland National Forest Foundation v. San Diego Assn. of Governments

(2017) 17 Cal. App. 5th 413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Committee for Green Foothills v. Santa Clara County Bd. of Supervisors

(2010) 48 Cal.4th 32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Friends of College of San Mateo Gardens v. San Mateo County Community College Dist.

(2016) 1 Cal. 5th 937. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 17, 19

Latinos Unidos de Napa v. City of Napa (“Latinos Unidos”)

(2013) 221 Cal.App.4th 192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lighthouse Field Beach Rescue v. City of Santa Cruz

(2005) 131 Cal. App. 4th 1170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

National Parks & Conservation Assn v. County of Riverside

(1999) 71 Cal. App. 4th 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Preserve Poway v. City of Poway

(2016) 245 Cal. App. 4th 560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Save Our Heritage Organization v. City of San Diego

(2018) 28 Cal. App. 5th 656. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Sierra Club v. County of San Diego

(2014) 231 Cal.App.4th 1152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3

Sierra Club v. County of Sonoma

(1992) 6 Cal.App.4th 1307. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Statutes

Pub. Res. Code

§ 21002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

§ 21093. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,16,20

§ 21094 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,16,20

§ 21166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8, 16-18

Regulations

14 Cal. Code Regs. (“CEQA Guidelines”)

§ 15064(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

§ 15064(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

§ 15131(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

§ 15152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

§ 15162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16, 20

§ 15168(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

§ 15168(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

§ 15360. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

§ 15384(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

§ 15384(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Federal Cases

Bicycle Trails Council of Marin v. Babbitt

(N.D. Cal. 1994) affd. (9th Cir. 1996) 82 F.3d 1445. . . . . . . . . . . . . . . . . . . . . . . 15

4

I. SUMMARY OF REPLY

Marin County Open Space District’s Answering Brief ("DAB”) argues

the Court of Appeals applied a clear and well defined body of law on the two

issues for which Petitioner seeks review. This is a predictable argument,

which does not mean, however, the law on these issues is near settled or clear.

On the issue of considering social effects, the District claims the law is

clear because the social impacts to existing hikers and equestrians due to the

physical changes to the Middagh Trail (including introducing mountain bikes)

are not caused by physical changes to the environment. This is factually

incorrect, as presented in Petitioner’s Petition for Review (“PFR”) at pages 17-

18, 33-38. The Court of Appeals’ failure to consider the evidence that social

effects were caused by changes to the environment can be directly traced to the

confusing and unanalyzed law on this topic, including decisions that have

inconsistently applied the cryptic language of the CEQA Guidelines.

The issue of social effects in this case is central to both issues for which

Petitioner seeks review. Here, the Road and Trail Management Plan

(“RTMP”) program EIR states that “[b]ecause the safety of users of the road

and trail system is a social effect...it is not within the purview of CEQA.” See

AR 59 2241 (emphasis added.) Despite this, the District found that the

Middagh Trail project could tier to the RTMP EIR, even though the Middagh

5

project would cause both physical and social impacts to existing users. If

social effects are required to be considered as a consequence of physical

changes to the trail environment caused by a project, the District cannot tier

that project’s CEQA review to a program EIR that rejected the concept of even

considering such effects.

On this second issue involving tiering, no case, including Friends of

College of San Mateo Gardens v. San Mateo County Community College Dist.

(“San Mateo Gardens”) (2016) 1 Cal. 5th 937, has analyzed the proper

standard for reviewing an agency’s determination that a later project falls

“within the scope” of a prior program EIR and thus may utilize Public

Resources Code Section 21166 (“Section 21166") and 14 Cal. Code Regs.

(hereinafter “CEQA Guidelines”) § 15162 to evaluate whether a second tier

project requires more specific CEQA review than in the prior program EIR.

The District’s argues San Mateo Gardens clarifies the proper standard,

see DAB, p. 22, but this is untrue. San Mateo Gardens addresses a ‘changed’

project, not a tiered project. Here, the challenged action is a second-tier

project that implements policies of the RTMP literally at the ground level.

San Mateo Gardens also discusses what is required for a tiering

analysis, 1 Cal. 5th at 960, which did not occur here and will not occur in

future cases that will instead follow the District’s erroneous instincts to shove

6

future projects into the ‘scope’ – however that is defined - of the program EIR.

The Court of Appeals decision follows more closely cases such as

Latinos Unidos de Napa v. City of Napa (“Latinos Unidos”) (2013) 221

Cal.App.4th 192, 196, 201-202, which interprets the “within the scope”

language as dependent on whether Section 21166 criteria are met, i.e., whether

there are substantial changes, or new information, warranting CEQA review.

The Section 21166 / CEQA Guideline § 15162 criteria are designed for

use once the agency has decided that the second tier project is ‘within the

scope’ of the program EIR. See CEQA Guidelines § 15168(c)(2). However,

the Guidelines are not clear what it means for a project to be within the scope

of a prior program EIR. For example, CEQA Guidelines § 15168(c)(1)

requires an initial study for a second tier project that would “have effects that

were not examined in the program EIR.” No court decision has addressed if

this is the standard for ‘within the scope’ language as well. Meanwhile, the

‘within the scope’ standard has morphed toward the more restrictive criteria

for changed projects under Section 21166 and CEQA Guideline § 15162.

Case law does not adequately distinguish between decisions involving

changes to a project and those involving tiering a later project to a program

EIR. In the former, Section 21166 criteria are appropriate given the interest

in finality for CEQA project review, but in the latter such an interest in finality

7

is inappropriate as it conflicts with CEQA’s endorsement of tiering as a way

to focus environmental review at the proper level of scrutiny for each

successive tiered project implemented under the umbrella of the program EIR.

These second and third-tier projects may figuratively fall ‘within the scope’ of

the initial ‘program,’ but that does not mean that further CEQA review is not

required at the site-specific level based on CEQA’ tiering procedures.

The District’s brief falsely characterizes Petitioner as claiming that all

social effects must always be considered, or as failing to acknowledge the

difference between the Section 21166 and Section 21093-21094 criteria for

whether further environmental review is required. This is not true. This case

demonstrates how ambiguity in the law, and how appellate courts’

inconsistency in applying this law, led the Court in this instance to getting it

wrong, thereby condoning the District’s behavior in forcing a major change in

trail use onto decades-long existing users without considering the adverse

effects that may occur. Allowing this decision to stand would give an

unlimited green light to the District and other agencies throughout the state to

make highly impactful decisions without consideration of enforceable

mitigation and/or alternatives that would avoid significant impacts to

recreational users throughout California. At the least, the law should be clear

on how agencies can proceed in these situations to avoid future legal conflicts.

8

II. THE DISTRICT’S ACTIONS ARE FALSELY PRESENTED AS

COMMENDABLE BY THE DISTRICT’S BRIEF.

The District portrays its actions as consistent with CEQA and

accountable local government, the fulfillment of the wishes of the vast

majority of the District’s constituents. None of this is remotely true.

The history of the Middagh Trail project began shortly after the

District’s enactment of the RTMP, when the District invited proposals to be

identified and scored by the District as it considered future projects. Under the

RTMP, all qualifying projects were to be scored for eligibility. However, out

of a number of proposals, including several eligible projects from local groups

to do restoration and rehabilitation in the Alto Bowl Preserve without adding

bikes, the District only scored the proposal submitted by the Marin County

Bicycle Coalition (“MCBC”) to change the trail design and use in the Preserve

so as to accommodate mountain biking. The trial court and the Court of

Appeal found the District’s actions in predetermining which project would be

chosen to be contrary to the procedures required by the RTMP and thus an

abuse of discretion. See Slip. Op., pp. 30-32.

After having violated its own RTMP by pre-selecting the MCBC

proposal as the project to be implemented in the Alto Bowl Preserve, the

District then engineered a ‘process’ whereby the project to change the

Middagh Trail to mountain biking was presented to the public as a fait a

9

compli, with ready-made findings that the project would not cause any

significant environmental impacts. Even after receiving numerous objections

from local users – including a petition with over 1,000 signatures opposing the

proposal to allow mountain biking on the trail – the District announced on1

November 29, 2016 that the project had been ‘approved’ based on its

conclusions that significant impacts would be avoided. All of this was done

without any CEQA review whatsoever. See PFR, pp. 26-29. The trial court

held that the District had improperly approved the Project prior to completing

CEQA review, citing Save Tara v. City of West Hollywood (“Save Tara”)

(2008) 45 Cal. 4th 116, 130-131, 139. See 4 CT 725-730. The Court of Appeal

reversed by interpreting the District’s announcements that it had ‘approved’

the Project as simply initial endorsements for the Project. Slip Op., pp. 12-14. 2

The District from early on decided to open the Alto Bowl Preserve and

Middagh Trail to mountain biking without considering impacts on the existing

users of the Preserve. These citizens testified about the likelihood of

The District’s argument that the Project was supported by over 80% of the1

public is based on its own self-serving announcement that it had approved the

Project. The figure is contradicted by public comments and by the petition of

over 1,000 persons opposing the change of use, which was submitted to the

District in 2015 and 2016. AR 252 4729-4840.

Because the Court’s ruling is based on a misinterpretation of what the District2

actually did in this case i.e., approved the Project on November 29, 2016,

rather than a misstatement of the applicable law under Save Tara, Petitioner

has not chosen to seek review on this issue.

10

foreseeable accidents and eventual user displacement – testimony supported

by official incident reports submitted into the record (see PFR, pp. 33-38) – as

a result of the physical changes that were ignored by the District in an

unaccountable process contrary to CEQA principles that an agency consider

enforceable mitigation or feasible alternatives to avoid significant impacts.

Pub. Res. Code § 21002.

Against the backdrop of this breakdown in civic accountability, the

District’s legal positions that 1) social effects caused by the physical effects of

the change in trail use need not be evaluated; and 2) future trail projects on

District lands will be considered to be ‘within the scope’ of the RTMP EIR and

thus exempt from site-specific review, deserve review from this Court.

III. ARGUMENT

A. THE ISSUE OF HOW TO CONSIDER SOCIAL EFFECTS

REMAINS OBTUSE AND INCONSISTENT BETWEEN THE

CEQA GUIDELINES AND APPLICABLE CASE LAW.

On social effects, the District argues that “Petitioner’s wish that the law

said something different is not a basis for this Court’s review.” See DAB, p.

23. However, the law does say something different than what is stated in the

Court of Appeals’ opinion, namely that social impacts that are caused by

physical changes to the environment must be considered in CEQA review.

CEQA Guidelines § 15064(e), § 15131(b). In this case, the Court of Appeal

11

did not consider the social impacts to existing trail users based on the physical

changes to their environment, which includes natural and man-made

conditions. See CEQA Guidelines § 15360. Otherwise, there could never be

CEQA impacts to such resources as aesthetics or recreational use and values.

Here, trails constitute manmade conditions that are part of the environment.

The addition of bicycle traffic to this man-made environment is a physical

change. See CEQA Guidelines § 15064(d)(1).

In sum, it is the District who argues for law that is inconsistent with

CEQA and its Guidelines, a reason perhaps why the Court of Appeal did not

publish its opinion despite two requests and despite the opinion addressing

factual and legal issues without precedent in California law.

1. The District’s Cases on Social and Recreational Effects

Illustrate the Need for Supreme Court Review.

The District argues the case law is clear based on three decisions

finding that social effects need not be considered, and two recreational impact

case that the District claims are distinguishable. See DAB, pp. 23-27.

The first three cases each hold that the social effects of a project need

not be considered. None of the decisions address how adverse social effects

should be analyzed where they are the product of physical changes. Instead,

Preserve Poway v. City of Poway (2016) 245 Cal. App. 4th 560, 575

considered the social effects to the community due to the replacement of a

12

horse facility with housing as not related to physical changes, but rather as a

social effect, specifically the “loss of community character.” See id. at 565.

Similarly, Chico Advocates for a Responsible Economy v. City of Chico

(2019) 40 Cal.App.5th 839, 867-868 held that “the loss of close and

convenient shopping,” was not a physical component of ‘urban decay.’

Finally, Lighthouse Field Beach Rescue v. City of Santa Cruz (2005)

131 Cal. App. 4th 1170, 1206, held that recreational users disagreeing over the

propriety of the dogs on the beach was not an environmental effect.

Lighthouse Field Beach Rescue does not discuss any environmental effect, nor

is the case on point given the environmental setting in Lighthouse Field Beach

Rescue already included off-leash dogs in the park, an existing environmental

impact proposed to be improved through firm limits on where dogs could go.

In contrast, here, mountain bike riding has not been allowed. The apt

parallel would be a project to introduce off-leash dogs into a sensitive area

where dogs were not allowed. Lighthouse Field Beach Rescue does not

address this different situation regarding the environmental setting/baseline.

At best, these cases correctly state the law that social effects cannot

constitute CEQA significant impacts where they are not caused by changes to

the environment, yet fail to provide any analysis for how social effects should

be considered when they are caused by the environmental changes.

13

Meanwhile, the recreation cases are unsupportive of the argument that

social effects need not be considered and they support Petitioner’s argument.

The District tries to distinguish National Parks & Conservation Assn

v. County of Riverside (1999) 71 Cal. App. 4th 1341, by arguing that the

alleged recreational impact in that case “was directly caused by a physical

effect of the project—i.e., the physical construction of a landfill nearby.”

DAB, p. 26. Here, however, social effects are caused by the physical changes3

to the Middagh Trail, including introduction of bike traffic. Not a distinction.

Similarly, the District argues that Baldwin v. City of Los Angeles (1999)

70 Cal.App.4th 819 “concerned a proposal to completely eliminate two acres

historically used for public recreation to build a housing project” and thus “the

‘recreation impact’ on people” was “caused by a physical change; i.e., the

elimination of two acres of recreation space.” DAB, pp. 26-27.

This distinction is also untenable. Here, rather than eliminate the

recreational resource, the District has substantially modified it through the

physical introduction of bikes into a setting of horses and hikers.

The District’s arguments highlight the lack of clear case law direction

National Parks held impacts to the ‘wilderness experience’ from an adjacent3

landfill were “appropriately analyzed under CEQA,” which the County did in

an EIR and statement of overriding considerations justifying “impacts upon the

wilderness experience component.” Id. at 1359 (emphases added).

14

for how to assess social effects. Here, there is no question that the social

effects to Middagh Trail users are caused by the physical changes to the trail.

In this respect, the District does not even bother responding to Petitioner’s

points that the introduction of mountain bike traffic into an existing trail

environment represents a change to the man-made environmental conditions,

which must be considered in CEQA review. PFR, pp. 17-18. 4

The District concludes by raising its most egregious strawman

argument, that Petitioner is claiming “the sheer scale of the subjective

psychological opposition to the project” requires CEQA review, which the

District frames as “simply a disagreement with CEQA itself.” DAB, p. 28.

This is wrong. The sheer scale of the incident reports and citizen opposition

to the Project based on their own trail experiences, see PFR, pp. 26, 31-35,

The District defends the Court of Appeals’ reliance on Bicycle Trails Council4

of Marin v. Babbitt (N.D. Cal. 1994) affd. (9th Cir. 1996) 82 F.3d 1445, see

DAB, p. 27, n. 8, arguing that it cited by Petitioner in the appeal and is

persuasive authority based on the National Environmental Policy Act

(“NEPA”). These points fail. First, Petitioner did not cite the case as legal

authority but rather as evidence showing the potential for impacts to the non-

bike users caused by bikes on trails in Marin County. See Respondent’s

Opposition Brief on appeal, p. 32 (showing “‘[a]mple evidence...that bicycle

access to all trails increases incidents of user conflict and compromises visitor

safety.’ AR 547 5886.”) Second, NEPA does not recognize social effects as

does CEQA and so cannot be ‘persuasive authority.’ The relevance of the

decision to this Court’s review is as a point of concern highlighting the lack

of guidance the Court of Appeal experienced regarding the factual and legal

issues presented by this case.

15

Notes 4, 7-9, constitutes substantial evidence that must be addressed. CEQA

Guidelines §§ 15384 (a)-(b). That is what CEQA requires, but which the case

law has muddled in the absence of this Court’s guidance.

B. SUPREME COURT GUIDANCE IS NEEDED TO CLARIFY

HOW AN AGENCY DECIDES A SECOND TIER PROJECT

FALLS WITHIN THE SCOPE OF A PRIOR PROGRAM EIR.

No case decision has analyzed the proper standard for reviewing

whether an agency has proceeded lawfully in deciding whether a second tier

project is ‘within the scope’ of the prior program EIR and thus requires no

further CEQA review pursuant to CEQA Guidelines § 15168(c)(2). This

determination is critical, as it allows an agency to proceed under Section 21166

and CEQA Guidelines § 15162 instead of Sections 21093-21094 and CEQA

Guidelines § 15152 in deciding whether a second-tier project requires review.

The District argues this issue was settled by San Mateo Gardens. See

DAB, p. 17. However, San Mateo Gardens addressed changes to a project, not

a later project tiering to a program EIR. See 1 Cal. 5th at 944. Indeed, San

Mateo Gardens distinguished its facts from cases involving prior program

EIRs. Id. at 960 (standard for whether to engage in additional CEQA review

under a tiered EIR is “more relaxed than the prohibition against additional

review imposed by Public Resources Code section 21166 for project EIR's.”)

San Mateo Gardens leaves open the question of how a court should

16

review an agency’s decision not to utilize CEQA tiering for second tier

projects implemented under the authority of a prior program EIR. Here, when

it came to the agency’s ‘decision’ how to proceed, San Mateo Gardens did not

defer to the agency’s choice of CEQA review, but instead simply identified as

a matter of law that “the 2006 initial study and MND were not a tiered EIR.”

Id. at 960 (emphasis added.) Other cases have similarly not deferred to and

instead overruled agencies skipping a tiering analysis and instead relying on

the ‘changed project’ criteria. See e.g., Center for Sierra Nevada Conservation

v. County of El Dorado (2012) 202 Cal.App.4th 1156, 1173-1174 (court

rejects agency’s review of impacts under Section 21166 and instead evaluates

project as tiered); Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th

1307, 1320-1321 (court finds proposed mining not within the scope of the

prior program EIR without reference to Section 21166 criteria.)5

The District argues case law is clear on this issue but most of its cases

involve not tiering situations but rather ‘changes’ to existing projects. 6

In Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, the5

court declined to rule on the issue. Id. at 1174.

The following cases cited by the District each involve changed projects rather6

than tiered projects: San Mateo Gardens, supra, 1 Cal. 5th at 949; Committee

for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation

Agency (2016) 6 Cal.App.5th 1237, 1247; Citizens Against Airport Pollution

v. City of San Jose (2014) 227 Cal.App.4th 788, 801-802.

17

In contrast, two decisions cited by the District, Latinos Unidos, supra,

221 Cal.App.4th 192, 196, 201-202 and Cleveland National Forest

Foundation v. San Diego Assn. of Governments (2017) 17 Cal. App. 5th 413,

426 do involve program EIRs and tiering, yet apply the Section 21166 criteria7

as if discussing a ‘changed’ project. The reasoning of these decisions are what

was followed by the Court of Appeals in this case.8

The changed project situation is appropriate for the Section 21166

criteria of ‘new circumstances’ or ‘new information’ to see if further review

is required but not if the question is rather whether a second tier project is

within the scope of a prior program EIR and thus may forgo the tiering

process. The ‘within the scope’ determination is not the same as a ‘change’

to a prior project where CEQA review has already occurred and the public

policy interest in “finality” of CEQA review may take precedence over the

Petitioner inaccurately cited to the prior version of this decision issued before7

Supreme Court review in Cleveland National Forest Foundation v. San Diego

Assn. of Governments (2017) 3 Cal. 5th 497. However, the language of the

correctly cited decision is identical to the prior decision with respect to CEQA

tiering and thus presents the same problem in terms of precedent on this issue.

A third decision, Committee for Green Foothills v. Santa Clara County Bd.8

of Supervisors (2010) 48 Cal.4th 32, appears to apply the Section 21166

criteria to whether a project falls ‘within the scope’ of a prior program EIR,

but ultimately found it “need not decide whether the County's determination

was proper” due to the statute of limitations having run. Id. at 55. In support,

this Court cited Citizens for a Megaplex-Free Alameda v. City of Alameda

(2007) 149 Cal.App.4th 91, which, however, is not a tiering case, but rather

also one involving a changed project. Id. at 103.

18

potential for new environmental impacts to occur. See San Mateo Gardens,

supra, 1 Cal. 5th at 949 (describing CEQA’ interest “in finality and

efficiency.”); Save Our Heritage Organization v. City of San Diego (2018) 28

Cal. App. 5th 656, 668 (“Once an EIR has been certified, ‘the interests of

finality are favored...”)

In contrast, such considerations of ‘finality’ are inappropriate when

dealing with a CEQA tiering situation where a program EIR purposefully

defers CEQA review to later projects corresponding to site-specific impacts

that will inevitably arise as the RTMP is implemented. See AR 59 2734 (“No

individual road or trail actions are identified or programmed in the RTMP.”)

Here, there is no ‘interest in finality’ for tiered projects. “[T]iering is

appropriate when it helps a public agency to focus upon the issues ripe for

decision at each level of environmental review." Koster v. County of San

Joaquin (1996) 47 Cal. App. 4th 29, 38. An issue ‘ripe’ for review at the

programmatic stage will not be the same issue ripe for review at the project-

specific change. The RTMP has general guidelines as to trail protection and

use management but that does not mean the specific site-specific impacts in a

potentially sensitive area of changing or relocating a trail use would have been

adequately considered in the prior program EIR.

Review is warranted here because there is a lack of authority for how

19

an agency determines a second tier project falls ‘within the scope’ of a prior

program EIR. This CEQA context does not support finality of review, but

rather the different question of whether the subsequent second-tier review

requires a more site-specific CEQA analysis, not because of project changes

or new information, see CEQA Guidelines § 15162, but because these issues

are now ripe for review. Here, the words ‘within the scope’ must be

interpreted consistently with CEQA’s intent to promote tiering through the

completion of program EIRs for large scale planning matters, with the

assumption that subsequent specific projects will be addressed in later tiered

project EIRs. See Pub. Res. Code §§ 21093-21094; CEQA Guidelines§ 15152.

Under these provisions, where a later project raises site-specific issues not

directly addressed in the prior program EIR, further CEQA review is required.

In the absence of controlling authority on the topic, the Court of Appeal

tried to craft a standard from the Remy, et al., Guide to CEQA 11th Ed., see

Slip Op. p. 19, but, lacking clarifying law, failed to assess whether the program

EIR discussed the site-specific impacts of the later Middagh Trail project.

IV. CONCLUSION

The Court of Appeals decided that the social effects of a major use

change to the Middagh Trail need not be addressed under CEQA. This ruling

was critical to the Court’s finding the Middagh Trail project to be within the

20

scope of, and thus tierable without further CEQA review to, the RTMP EIR,

a programmatic review which also did not consider social effects, This result,

inevitably to be followed by the District and other agencies in California, is

contrary to CEQA and should be reviewed by this Court.

DATED: April 2, 2020

By: /s/ Michael W. Graf

Michael W. Graf

Attorney for Petitioner

21

CERTIFICATION OF WORD COUNT(Cal Rules of Court, Rule 14(c)(1))

The text of Petitioner’s Reply on Petition for Review consists of 4,042

words, as counted by the Corel Word Perfect word processing program used

to generate this brief.

DATED: April 2, 2020

By: /s/ Michael W. Graf

Michael W. Graf

Attorney for Petitioner

22

PROOF OF SERVICE

I am employed in the County of Contra Costa, State of California. I am overthe age of 18 and not a party to the within action; my business address is 227 BehrensStreet, El Cerrito California, 94530. I caused the attached:

PETITIONER’S REPLY ON PETITION FOR REVIEW

to be served as follows:

x By Regular Mail On this date written below, at El Cerrito, California, Iplaced a true copy of the above written document in a sealed envelope(s) andplaced it for collection and mailing, addressed as follows.

Marin County Superior CourtP.O. Box 4988San Rafael, California 94913

1st District Court of Appeal350 McAllister StreetSan Francisco, CA 94102

I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct, and that this declaration is executed this April 2, 2020,in Contra Costa County, California.

By: /s/ Michael W. Graf

Michael W. Graf

Attorney for Plaintiff /Respondent

SC05 - Reply on Petition for Review.wpd

23PROOF OF SERVICE; Case No. Civ. 170191323