Merced County

Report of a meeting in Hillmar on transportation politics

Submitted: Jun 03, 2007

Summary of Meeting at Hilmar Grange Hall, 5/29/07, 6:00PM
by Stevinson Citizen's Group

People in attendance: Table in front of everyone - Jesse Brown, MCAG Executive Director; Senator Jeff Dunham; Kome Ajise, Cal Trans rep for Merced County. Others in attendance: Robin Adams, rep for Kathleen Galgiani; Supervisor Deidre Kelsey (arrived at very end); Merced County Planner, Bob King; about five guys from Livingston, including their mayor and city councilmen; Dan Bohan, Developer for Stevinson Ranch; Diana Westmoreland Padrozo, Merced Co. Farm Bureau, ED; Reporter from Modesto Bee; probably about 75 citizens or more. MAC members: Robb Mitchell, Pat Sparks, Karen Wolchek and Connie Lourenco. Didn't see Dave Anderson or any of the others and I continually looked around for them. Even George and Patty were not there. By the way, I sat right by Dan Bohan.

First Speaker was Robin Adams representing Kathleen Galgiani. He said she would do anything that she can to move road projects forward.

Second Speaker was Kome Ajise, Cal Trans. One sure bet of funding is Hwy 99 projects. 1 billion is going to be spent from Bakersfield to Redding. 1/4 billion for Merced County with the projects being the Mission Project to Madera County line widening to six lanes. Other projects next in line are Los Banos bypass and widening of 99 by Livingston.

Jeff Dunham asked Kome what are ways for counties to be self help. His response was 1. Sales Tax measures (19 counties now have it)
2. Traffic impact fees (mentioned El Dorado County has one.
He said Merced County has one too but it is different from
El Dorado County one. He did not elaborate on how it is
different)
3. Toll roads (Area not right for those. Need more pop and
roads that people have no choice but to take)
4. Developer fees (he called it "straight levee on rooftops")
Kome stressed that state is reluctant to take on any more projects than those already in process. Hwy 165 is not considered in process at this time.

Second Speaker was Jesse Brown, MCAG. Said that MCAG is responsible for
creating a regional transportation plan for Merced County. Merced County receives federal dollars every year from our tax dollars, but it is all spent on road maintenance. 1.9 million was available and it was all used for maintenance. 2.6 million came from congestion funds but has to be used for transportation issues like mass transportation.
Jesse Brown stated MCAG's reasons for allocating funds:
1. safety
2. congestion
3. leveraging more money from other sources.
4. efficiency
He spoke about Hwy 165 Bypass:
1. Has to be placed in regional transportation plan, which it is.
2. MCAG only has money for project study report (being done now)
3. Next step is the EIR (8 years)
4. Engineering (1 1/2 years)
5. Right of way (2 1/2 years)
6. Build road (3 years)
He said that MCAG has many priorities before Hwy 165 bypass is in top tier. Top tier projects are proposed to be built within the next 20 years. It was in top tier, but because Measure G failed it no longer is. He said that he can guarantee that the soonest it could be built would be at least 20 years and not before that time. Remember Deidre was always saying 10 to 15 years.
Of course, he stressed that we need to become self help. He thanked Hilmar for overwhelmingly voting to pass Measure G. He said the Measure failed in Atwater and Merced so that is where they will put most of their effort this time around.

Then the floor was open to questions. One of the most interesting was a man from Livingston who is on the city council. He brought a map. He said that he and others are proposing to put the highway interchange in Livingston and route 165 bypass people over there to it. Never gonna happen. He had a very fancy aerial map with the plan on it. He thanked Senator Dunham several times for inviting him to come. So it looks like Livingston is gunning for the interchange. There must be a lot of money to be made by putting fast food restaurants and such by those. Look at what Livingston has done at the interchange at the Winton Rest Stop. They are licking their chops for this one too.

I was the last person to go to the microphone to ask a question. None of the previous questions dealt with developments so I had to think how I could tie it in to the issues discussed. I told Denham and the Cal Trans man about all of the master planned developments proposed that would be serviced by Hwy 165. When I mentioned 3,700 homes in Stevinson the Cal Trans man straightened his back, shook his head and frowned. Denham turned his head and looked at the Cal Trans man when this happened. I said that within a 13 mile stretch 11,000 homes are being proposed (Stevinson, Turlock Golf Course, Turlock's platinum triangle) and that traffic would be serviced by a two lane bypass. I said that it is not going to work. There will be too much traffic for a two lane bypass. Then I said how people have told me that you cannot even speak of four lanes because of costs. So, I just said that the numbers do not add up and the two lane bypass is too costly for the service it will provide.

One man said that it takes too long for EIR's. He said they need to shorten the process. He said that once they are done Mrs. Miller does a lawsuit and it takes another two or three years. He said that she did it on the UC Merced and now she is doing it on the racetrack. Kome said that it cannot be shortened because it is the law. The man said they need to change the laws.

Rob Mitchell got up and gave a very good speech about the idiotic idea of self help. He was pretty mad and said that we have already put in our money and that the self help concept is holding money we have already paid hostage until we put more money into the system. He got a large applause with that comment.

After the meeting I stayed around and talked to people. A woman came up and said that she is sure they are not going to use Griffith. She said they will take property off of the backside of people's land between Griffith and Golf.

| »

Case study of hypocrisy

Submitted: May 27, 2007

The level of hypocrisy around here has reached its gentle level of sufficiency for me. We know why Rep. Dennis Cardoza, Merced, of no known political affiliation, is in office. We know who pays to keep him there: a cabal of special interests, including but not limited to finance, insurance and real estate and the University of California.

Cardoza offends in ways that sound like wounded children's cries in a Baghdad hospital.

First, this is a politician who refuses to acknowledge his ordinary constituents in public except at carefully staged political events. His staff says it is because he cherishes his privacy at home away from Washington. One could almost believe it but for what he does. He passed a measure for national foster children awareness. Who could vote against that? Then he makes sure that through the media his entire district knows he and his wife adopted two foster children. Cardoza is exploiting his own adopted children to demonstrate his alleged compassion. I don't want to know about his family. His family genuinely is his private business. After the Condit disaster, we don't want to know about our congressman's family life. It offends me as a parent and as a voter. I want the newspaper to tell me how he voted on the issues, which it very rarely does.

However, this creep called a reporter at the Stockton Record after his vote for the Iraq supplemental appropriations bill last week. The reporter put the conversation out on his blog. Cardoza is shown nearly crying on the guy's shoulder. And the reporter buys it. And the blogosphere goes wild over the posting, So now we have another source of gigalo media, a Stockton blog--what else? Another reporter pimping his access to a politician so full of it we haven't seen the whites of his eyes since the levee break in his state Assembly District in early 1997.

Granted there is a lot of agricultural pork in the bill along with preponderant military pork, which gets to the jackasses who own this man and his little chunk of the US Congress.

Between 1990 and 2005, Iraq has had a 150-percent increase is child mortality. Iraq has the worst mortality rate for children 5 and under in the world. How many US soldiers' children will be missing a parent by the end of this? How dare this wretched, corrupt little no-account rub his children in the public's face. This is a man who is missing an essential part of human personality. I am tired of this political rotting sound.

In other events in the fabulous career of our political celebrity, Cardoza recently introduced a bill to increase the sentence of public officials caught in scandals of a financial kind. The congressman intoned in a press release that corruption lowers the people's faith in government.

What crap! This bum was 100-percent in the corrupt orbit of former Rep. Richard Pombo, Buffalo Slayer-Tracy, until a year ago. And Jack "The Singing Lobbyist" Abramoff keeps staying out of jail on sheer musical ability. First Cunningham, then Pombo, now Doolittle. What's to say about Cardoza's junket to the Marianas? Perhaps, he's covered his ass with more junkets to Israel and Jack's turning cantor before the Almighty and federal judges. Cardoza and Pombo were so tight, local dairymen began calling them the Pomboza several years ago. It's not a nice word on some Azorean islands but how nice do you have to speak about a guy who ran lady mud-wrestling contests in his bowling alley?

Hypocrisy is the only vice that truly negates integrity. The lifelong psychological trauma of the killer - in war or in a knife fight in a hobo jungle by the railroad tracks- is that witness called conscience.

The hypocrite is so into his role it silences conscience. Cardoza is a man who is totally into being a political big shot. Anyone who has ever seen him operate in one of his staged events for the constituents knows this. Fine. Let him represent his special interests, take their money, drive wildlife species extinct, and just shut up about it. But Cardoza is too ambitious. He wants to appear virtuous at the same time. Whatever his true intentions are we doubt he, clever little Blue Dog Macchiavellian he thinks he is, has a clue about them. But his political deeds and speech smell like decayed fish bait.

We have a man representing us in Congress who is constantly lying to himself, which is to say a person who is rotten to the core, a defunct soul, nothing but another member of the empty suit mob. What the special interests of his district didn't take, Majority Leader and Pombo substitute, Steny Hoyer, got, because Cardoza always operates with a front guy more powerful than he is since Assembly Speaker Bob Hertzberg. He's only got one political tune. It's not that Cardoza politically disagrees with the Speaker, Nancy Pelosi, D-SF. He probably doesn't understand her speech.

The Democratic Party has a history. No hypocrite Democrat can bear to grasp that history, mainly full of painful compromise and betrayal as well as better moments. Failing the integrity to confront the history of the Democratic Party, the hypocrite must betray the party over and over and over again, as if each betrayal were a baseball bat to the head of that history. The hypocrite must break the skull of conscience, which turns out to be his own skull. Incidently, he breaks the faces of the poor workers in his district. And how about them foreclosures on mortgages made while Cardoza was trying to gut the Endangered Species Act? In his ambitious quest for office and all that office implies, Cardoza has reduced himself to nothing at all -- suitable only for the handful of people who own him. The game is to keep the gigolo press and now its blog accessories from connecting the dots to make Zero.

For while probably no living man, in his capacity as an agent, can claim not only to be uncorrupted but to be incorruptible, the same may not be true with respect to this other watchful and testifying self before whose eyes not our motives and the darkness of our hearts but, at least, what we do and say must appear. -- Hannah Arendt, On Revolution, p. 103

Bill Hatch
---------------

5-7-07
Reuters
Egypt lauded, Iraq faulted in child deaths report
By Will Dunham
http://www.boston.com/news/world/africa/articles/2007/05/08/egypt_lauded_iraq_faulted_in_child_deaths_report/

WASHINGTON (Reuters) - Egypt made the most progress among developing countries in cutting deaths of children under age 5 from 1990 to 2005 while Iraq deteriorated the most, a U.S.-based charity said in a report on Tuesday.
The humanitarian group Save the Children tracked child mortality trends in 60 developing countries during this period. Twenty either made no progress in reducing these deaths or had higher death rates.
These 60 countries accounted for 94 percent of child deaths worldwide, the report said. About 10.2 million children under age 5 die annually around the world -- 99 percent in developing nations amid poverty, disease and malnutrition -- with 28,000 deaths a day.
Nearly three-quarters of all such deaths were due to pneumonia, diarrhea and newborn disorders like premature birth, birth asphyxia and birth defects, the report said.
Deaths of children under 5 declined 68 percent in Egypt from 1990 to 2005, the report said. Iraq, gripped by war since a U.S.-led invasion in March 2003 and subjected to years of economic sanctions before that, had a 150 percent increase in child mortality, it added ...
----------------

5-25-07
Stockton Record
Cardoza: 'Why I voted yes'...Hank Shaw's Blog
http://blogs.recordnet.com/n/blogs/blog.aspx?webtag=sr-hshaw&redirCnt=1

Today's vote on funding for the War in Iraq highlighted the range of political thought on the issue right here in our own region: For Rep. Jerry McNerney, D-Pleasanton, it was an easy "no" vote because there was no timetable for withdrawa... That leaves Rep. Dennis Cardoza, D-Merced. Cardoza was one of 82 Democrats to buck House Speaker Nancy Pelosi and push the green button. Cardoza says it wasn't easy. He called me after the vote to talk about it and sounded pretty down. "I've had better days,"...when I asked him how he was. Cardoza said he voted "aye" because he couldn't bear to leave the troops hanging, but said he felt like Congress had no other choice because it can't override a Bush veto and force a timetable on him. Yet. "We didn't have the votes in the Senate,"... I pointed out that the House (and the Senate) will often cast a vote knowing full well the other chamber won't play ball, so why not vote against the timetable-less bill? "Yeah, I know we've done that in the past,"..."But this is war. It's people's lives. It's a different deal. We could have cut off funding, but it would be chaos -- and I could not vote for chaos." Cardoza said he looks forward to another funding vote in September, another chance to judge for himself whether Bush's handling of the war is any different than chaos. "We're getting very close,"...Cardoza added that many of his Republican friends wanted to vote against the bill today but did not: Some out of loyalty to their president, others for similar reasons to Cardoza. He said that could change.
------

5-24-07
Cardoza to talk about foster care on 'The View'
http://www.mercedsunstar.com/local/story/13617276p-14214224c.html

Rep. Dennis Cardoza, D-Merced, will appear on the ABC television program "The View" at 8 a.m. today to observe National Foster Care Month and discuss the foster care system.
Cardoza, recognized as a congressional leader on foster care issues, adopted two foster children seven years ago, and has advocated on behalf of adoption and foster children in the California Assembly and in Congress...
-------

5-24-07
http://www.house.gov/list/press/ca18_cardoza/Sentencing_Amend.html
News From…
Congressman Dennis Cardoza
18th Congressional District of California
Rep. Cardoza Hails Passage of his Amendment to Strengthen Penalties for Ethics Violations by Public Officials
Amendment Passed with Unanimous Consent as part of Lobbying Reform Bill
FOR IMMEDIATE RELEASE
May 24, 2007 CONTACT: Jamie McInerney
(202) 225-6131

WASHINGTON – Today Congressman Dennis Cardoza introduced and passed an amendment that would double prison sentences, up to a two year increase, for elected and appointed public officials who violate the public trust. The amendment allows judges to increase the sentences when public officials are convicted of bribery, fraud, extortion, or theft in the course of their official duties.
“With public faith in government officials weakened by scandals from the Jack Abramhoff affair to the Duke Cunningham conviction, we need to ensure that those who break these laws are punished appropriately,” said Cardoza. “Beyond breaking the law, the perpetrators of these crimes violate the “public trust” by defying their fiduciary responsibility to the Constitution and to the people of America. I hope that this amendment will act as a deterrent to illegal behavior in the future and help rebuild public trust in government officials.”
The amendment passed unanimously as part of HR 2316, the Honest Leadership and Open Government of 2007, which contains landmark lobbying reforms that will cleanup the way business is done in Washington. Strengthening ethics rules and accountability of public officials is a longstanding interest of Congressman Cardoza. Cardoza introduced stand alone legislation similar to this amendment in the 109th and 110th sessions of Congress.

5-28-07
Merced Sun Star
Pork barrel spending...Maria Mendoza, Modesto...Letters to the editor
http://www.mercedsunstar.com/opinion/story/13630182p-14225940c.html

I thought Congressman Dennis Cardoza, D-Merced, was a fiscal conservative?...seriously disheartened to see how he is using his new position on the powerful House Rules Committee and as a chairman of an Agriculture Committee...disappointed to learn that the Iraq Accountability Act was stuffed with pork barrel spending -- mostly from agriculture...this was the Iraq spending bill to support our soldiers. Ironically, most of the members of the "Blue Dog" Democrats who are supposed to be fiscal conservatives voted for the "Iraq" spending bill. Most Democrats campaigned on fiscal responsibility and to cut the pork. Yet only seven of the 43 Blue Dogs that support a strong national security and fiscal responsibility voted against the bill. Some members of Congress have referred to this most recent use of pork barrel spending as political bribery; others call them "sweeteners." It appears that Congressman Cardoza, the communications director of the Blue Dog Coalition, representing the second largest dairy district in the nation, has reaped the benefits of delivering the votes of the Blue Dogs to House Speaker Nancy Pelosi. It truly appalls me that Cardoza has used his new position to be hypocritical to his fiscal conservative stand in exchange for power. I thought he was different. Welcome to Washington.

| »

Sonny Star: full of bull and applepie

Submitted: May 20, 2007
About 80 percent of our smog-causing pollutants come from mobile sources over which the air district has no jurisdiction. More than ever, we will need the state and federal government to do their fair share for the Valley by providing funding and regulatory assistance to reduce emissions from cars, trucks and locomotives. -- Merced Sun-Star, May 19, 2007

This ration of the well-known substance was dished out via Sonny Star, McClatchy's local rent-a-rag, by Seyed Sadredin, executive director/air pollution control officer of the San Joaquin Valley Air Pollution Control District, who began his flak during a breezy week by saying:

Air quality in the San Joaquin Valley is better than it has ever been in recorded history. With tough regulations, innovative measures and investment by businesses and residents, air pollution has been reduced significantly throughout the Valley. Despite this tremendous progress, the Valley's pollution-retaining geography and meteorology make meeting new, federal ozone and particulate standards a challenge that is unmatched by any other region in the nation.

Having already reduced Valley smog by 80 percent since the 1980s, virtually eliminating the remainder will not be cheap and cannot happen overnight. On April 30, the Air District's governing board adopted the first eight-hour ozone plan in California. This overarching and comprehensive plan is designed to help the Valley attain cleaner air, as measured by the federal smog standard, as expeditiously as practicable. The regulatory cost to businesses will be about $20 billion. The board members should be commended for their courage, resoluteness and commitment to clean air.

Sadredin is willfully confusing the public on behalf of the state regional air board, made up entirely of pro-growth Valley politicians. The board is asking the federal Environmental Protection Agency for the worst air pollution designation it has to offer, "extreme non-attainment," so that federal highway funds will not be pulled back until developers have all the roads they need for more growth, which will equal more pollution, not however the responsibility of the state board. Presumably, in 2023, Sadredin's two-bit flak successor will be saying our air is even cleaner, but that we must apply for the federal "catastrophic non-attainment" designation so that federal highway funds will not be withdrawn.

As long as the Valley keeps growing, it doesn't matter how many restrictions are placed on stationary-source emissions (mainly farm equipment). It is the cars of the new residents that do the damage. It is the destruction of natural resources to build subdivisions that does the damage.

Until a public coalition actually commits to suing both the federal and state governments simultaneously and is willing to endure the long haul such a suit would entail, nothing will improve and Sonny Star will be printing authoritative "expert" flak about how much cleaner our air is getting every breeze May.

Moving from bull to a related topic, apple pie, we note that righteous members of the local Applepiocracy are suggesting that the CEO of Riverside Motorsparts Pork is really not the proper sort of person we should include in our community. Therefore, the Applepiocrats suggest, the board of supervisors somehow renege on their approval of the RMP permits and zone changes. Because, you see, he is not a nice man. Sonny Star, with his unerring instinct for snobbery and with its contemptuous ignorance of law, is also slinging apple pies at John Condren.

The present public commentary in Merced is filled with bull and apple pie. If this keeps up too much longer, the whole county will be buried by flaky crusted compost (which might be a smoother driving surface than our present streets and roads). And that's just dandy, as long as no one imagines it will stop the increase in air pollution coming to the Valley through "planning" promoted by the University of California, the Merced Association of Governments, the Merced Board of Supervisors, the Merced City Council, the finance, insurance and real estate special interests, the air board and the San Joaquin Valley Blueprint. And, of course, by Sonny Star, who knows which side he's buttered on.

The only black box on the horizon is $5 fuel.

Badlands editorial staff
------------

5-19-07
Merced Sun-Star
Breathe easier knowing air is cleaner...Seyed Sadredin, executive director/air pollution control officer of the San Joaquin Valley Air Pollution Control District.
http://www.mercedsunstar.com/opinion/story/13602031p-14199952c.html

Air quality in the San Joaquin Valley is better than it has ever been in recorded history. With tough regulations, innovative measures and investment by businesses and residents, air pollution has been reduced significantly throughout the Valley. Despite this tremendous progress, the Valley's pollution-retaining geography and meteorology make meeting new, federal ozone and particulate standards a challenge that is unmatched by any other region in the nation. Having already reduced Valley smog by 80 percent since the 1980s, virtually eliminating the remainder will not be cheap and cannot happen overnight. The board members should be commended for their courage, resoluteness and commitment to clean air. About 80 percent of our smog-causing pollutants come from mobile sources over which the air district has no jurisdiction...we will need the state and federal government to do their fair share for the Valley by providing funding and regulatory assistance to reduce emissions from cars, trucks and locomotives. By any objective measure, the plan adopted by the air district is a comprehensive effort that leaves no stone unturned...
-------------

5-19-07
Merced Sun-Star
RMP an embarrassment...Marc Medefind, Merced...Letters to the editor
http://www.mercedsunstar.com/opinion/story/13602033p-14199862c.html

Five months ago, the Merced County Board of Supervisors made a decision that rocked the world of citizens who think that clean air, noise restrictions, ag preservation, and traffic concerns should be pre-eminent in the hearts and minds of those they elected to serve. Since then, the "house of cards" known as Riverside Motorsports Park has taken quite a tumble...Sun-Star has published exposés about the background and character of CEO John Condren...documents the seemingly nefarious ways in which he treated both employees and directors. Other articles have exposed the way the RMP Corp. deceived those who were once strong supporters and flouted the laws in Alameda County...paint a picture of an arrogant, egomaniac who apparently did anything to get what he wanted, regardless of statute or ethics. Sun-Star Sports Editor Steve Cameron...Where's the money coming from to build this gargantuan track? We still have no answers. Kenny Shepherd ("Advocate to Adversary") once again raised huge questions about character and trust where RMP is concerned...far from rolling in the bucks -- RMP can hardly pay its electric bills. After bamboozling most of Merced County's Supervisors into supporting this farce...milked dry and its directors sent packing...filling local racing fans with dreams of grandeur...overturning common sense ordinances... it doesn't seem too unrealistic that the rezoned land will be sold to investors...Mr. Condren will sail off into the sunset... But maybe that was the plan from day one. Still, it's not too late. Our Supervisors have only to revisit and rescind their unfortunate December decision to prevent this embarrassment from staining our county any further.

| »

Real nice

Submitted: May 08, 2007

The cities and counties of the San Joaquin Valley have been promoting rampant growth at the expense of the common air quality and asthma for children and elders for 30 years. Part of the reason they get away with it is because their officials control the regional air pollution control district. Within a week of his virtual sponsorship of a proposed 1,200-acre auto-racing facility, including eight tracks designed to draw visitors from a 100-mile radius of central Merced County, former Chairman of the Merced County Board of Supervisors Mike Nelson was appointed to the regional air board.

Last night, before a city council that will shortly decide on a WalMart distribution center that will draw at least 1,000 diesel truck trips a day, the air district executive director had the gall to describe Merced air as "virtually clean." While even the council members would have had trouble choking that down, his real argument was that he estimated that $2 billion in federal highway funds were at stake if the air district did not accept the worst air quality standard the Environmental Protection Agency until 2023 bestows rather than rush to clean up the air quality by 2013.

When it was suggested that, via the politicians on the board, Valley air quality policy was really controlled by business interests (finance, insurance and real estate [FIRE]), the executive director righteously defended business, saying it stood to lose $20 billion under new air pollution laws.

We just love to hear those rhetorical billions thrown all around City Hall.

A representative for Moms Clean Air Network led the attack against FIRE propaganda, quoting the American Lung Association's 2007 report, ranking Merced the sixth highest city in the nation for ozone. By chance, this is about the ranking Merced has for mortgage foreclosures and sub-prime loans in jeopardy.

This fight is going to take more than testimony before bought-and-sold local politicians, or even apple-pie tossing parents of asthmatic children. The Moms are going to have to learn that if you can't break bread with the politicians and sue them the next morning, asthma rates for their children and for their parents will just keep rising. The Mother's Milk in this game is the same-old, same-old cash, courtesy of finance, insurance and real estate interests.

We can understand the desire nice people have to believe nice visions. We want to believe that our Valley towns and cities still hold out some care for the common good and that we can still bury our differences and speak with One Voice to the real enemies (according to our leaders) in state and federal government, enemies who plot 24/7 to steal from the Valley, impoverish our people, lower our quality of life, deny our children opportunity, etc. Of course, THEY have always been after our water.

The problem is that nice is not always the same thing as true.

Top finger pointer of the City Hall event was Councilman Bill Spriggs, chairman of the unsuccessful Measure G campaign to hike sales taxes to develop funds to match federal highway funds to build more highways and expressways in Merced, to encourage more growth as well as service the growth Merced city and county permitted on the come, hoping for those highway funds despite air quality that is a national scandal. Spriggs blamed our dangerous air quality on the Bay Area's failure to build affordable housing, thus causing massive commuter traffic, for our air pollution problem. Last year the National Association of Homebuilders and Wells Fargo Bank ranked Merced and Modesto the fourth and fifth least affordable housing markets in the nation. There were no Bay Area cities in the top 10 least affordable US housing markets. Salinas ranked third. This pathetic apologist for local development interests with national and international ties is peddling a line of the well known substance. This line is intended to make the local citizen feel better -- maybe even nice -- about our poor, overwhelmed but nice city council that so valiantly looks out for our interests. Neither city council members more county supervisors can be held responsible for permitting all the growth. It is a nice belief. It is nice to believe that we can come together and reason with our elected officials and their staff about issues that threaten our common health and safety.

It's not true, but it's real nice.

But, lest the ordinary citizen become dismayed, that nice new UC Merced campus is planning a nice medical school to do some real nice research on respiratory disease. And that's why so many people want to move to Merced to live. And, if that isn't nice enough, UC/Lawrence Livermore National Laboratory wants to put a real nice biosafety-4 biowarfare lab in the hills behind Tracy to do nice studies on the most deadly disease known to man and beast. Real nice.

Badlands editorial staff
-------------------

5-8-07
Merced Sun-Star
Some want polluted Valley air cleaned up sooner...Leslie Albrecht
http://www.mercedsunstar.com/local/story/13562018p-14163799c.html

Valley's polluted air drew sharp criticism at Monday night's City Council meeting...Air District Executive Director Seyed Sadredin presented the new cleanup timeline to the council as part of a 58-city tour he's making to promote the plan...told the council that Merced's air is "virtually clean," and that a child born today breathes air that is 50 percent cleaner than 15 years ago. But the region is still plagued by dirty air...conditions that we have no control over," such as the Valley's bowl-like geography. Lisa Kayser Grant, a member of the Moms Clean Air Network, noted that the American Lung Association's 2007 State of the Air Report ranked Merced as the sixth most ozone-polluted city in the nation.

| »

Riverside Sparts Pork update: April 27, 2007

Submitted: Apr 27, 2007
(Alameda County Supervisor Scott) Haggerty to (Mark) Melville and (John) Condren: "From the beginning, I told you that you needed to bring the community along on this. But for some reason, you decided it's better to give everyone the finger and do whatever the hell you want. Well, that ends today." -- Merced Sun-Star, April 27, 2007

Supervisor Haggerty was reflecting on how Riverside Motorsparts Pork chief Condren and the new manager of RMP Altamont Speedway Melville and old RMP Altamont manager Kenny Shepherd, have been improving the speedway without building permits, harassing local residents who oppose the speedway, and conducting races not permitted by the county.

Supervisor Haggerty listens to his constituents and represents them, however belatedly. Merced County supervisors do not listen to their constituents, with the exception of Diedre Kelsey on this one project. The result of this arrogance is that Condren -- who is beginning to look more and more like a competent professional confidence man -- may have run a successful con game on them. And constituents are suing the county, again.

The hatred of these arrogant and corrupt men and women on the Merced County Board of Supervisors for their own constituents has destroyed their judgment.

Unfortunately for these haughty personalities, developers are fleeing as the speculative housing boom busts and there may be no more developer deep pockets in which the supervisors can hide and from which they can sneer. We would not suggest Condren, whose pockets are probably like those of a new sparts-pork jacket, sewn shut. Supervisors Nelson, Crookham, Pedrozo and O'Banion don't have anywhere to hide, actually.

We wonder if Condren has the money to make good on the legal indemnification of the county after he sets aside what he needs for his lifestyle, his front and the stake for his next operation in whatever state and industry he chooses. He played these saps perfectly. Somewhere, out there in this great nation, there is another county whose supervisors are controlled by speculative finance, insurance and real estate special interests and will do anything to defeat their constituents' reasonable defense of their own environment. Condren will find that county.

Badlands Journal editorial staff
--------------------------

4-27-07
Merced Sun-Star
Condren's Altamont biz in major trouble...Steve Cameron
http://www.mercedsunstar.com/sports/columnists/story/13526580p-14131393c.html

Who is Scott Haggerty and how could he effect the future of motorsports in Merced County?...bottom line is...Condren's business could become a fatality. Despite all the grandiose plans thrown around in our neighborhood, Condren's only real connection to racing is that he runs Altamont Motorsports Park near Tracy. Altamont has been a loser under several previous owners...two years ago, Condren turned up with his limited partnership - the same group he eventually dumped from his board on the Riverside project - and threw some money into the Altamont property. Condren needed to establish some credentials as a serious racing operator. Who would have listened to his plans in Merced County unless he was actually running a track someplace?...had the foresight to install shareholder Kenny Shepherd as general manager at Altamont. ...people living near Altamont...hauled their complaints to Alameda County officials. Scott Haggerty entered the picture... right from the start he became a champion of Altamont and thus Condren's greatest ally...helped the track dodge some zoning issues...made sure the use permit was extended another year...not an exaggeration to say that Haggerty also helped keep the
Riverside dream alive in Merced… What's fact, however, is that Condren needs the Altamont and now, he and new general manager Mark Melville have contrived to make an enemy of Haggerty... Shepherd has long since seen the vultures circling and bolted to run his own track in Madera. ...Altamont does not have permission to run "drifting" races, yet they've done it anyway - in violation of several county agreements. Haggerty now feels he's been conned, and he's livid. In case you missed this quote from Wednesday's Sun-Star...it's worth repeating… Haggerty to Melville and Condren: "From the beginning, I told you that you needed to bring the community along on this. But for some
reason, you decided it's better to give everyone the finger and do whatever the hell you want. Well, that ends today." Haggerty also berated Melville for what he considered a blatant lie about how the track advertised its "drifting" races and made it clear that Altamont's very shaky conditional use permit - which he'd almost personally kept alive - might have a very short remaining life span. Suddenly this head-on wreck between Altamont management and Alameda County puts everything in a completely different perspective. Condren's true believers surely must be wondering if the whole house of cards is about to collapse...various legal battles...finding a quarter-million bucks to build a racing complex in an almond orchard now seems like an impossibly tall order. But with Altamont's lone warrior on the Alameda County board now so angry that he wants to shut down the place… Well, you've got a better chance of winning the lottery than seeing a $250 million racing megaplex in Atwater. Condren and his gang may have made one foe too many.

4-26-07
Merced Sun-Star
Alameda upset with RMP's Condren over 'drifting' races...Corinne Reilly
http://www.mercedsunstar.com/local/story/13522453p-14127859c.html

An Alameda County supervisor berated Riverside Motorsports Park officials at a public meeting this week, calling business practices at their Alameda racetrack dishonest and in clear violation of county law. "From the beginning I told you that you needed to bring the community along on this," Alameda County Supervisor Scott Haggerty told track officials during a board meeting on Tuesday. "But for some reason you decided it's better to give everyone the finger and do whatever the hell you want. Well, it ends today." Haggerty's comments came after county officials learned that the Altamont Motorsports Park...operated by RMP CEO John Condren, has continued to hold popular
"drifting" events, despite a county order against drifting competitions. Alameda county planning staff say the events produce noise similar to that of a drag race, which is specifically banned under Altamont's current permit. "Would you admit that your autocross was in fact drifting?" Haggerty asked Mark Melville, a former Gustine city councilman and RMP's current vice president. "No, sir. I wouldn't," said Melville. "So we're going to start off that way?" asked Haggerty, raising his voice. Haggerty said one racetrack official had admitted to him that the track defied the ban and apologized. "You guys can't even keep your story straight within your own business,"..."You can't even give me an honest answer and say 'yeah, we drifted' ... You guys have a problem with the truth." Board of Supervisors voted unanimously during the meeting to uphold the temporary ban on drifting events. Condren is also behind the $250 million, multivenue Riverside Motorsports Park, which planned to cover 1,200 acres in northern Merced County near Castle Airport. The Merced County Board of Supervisors approved plans for the project in December. Multiple lawsuits are currently pending against RMP's Merced track.
The Alameda track is also facing a number of challenges. Besides this week's ban on drifting events, park officials are also sorting through troubles with the county's building inspections department...officials say several renovations at the track were made without proper building permits...track also has an application pending with the county to change its site from agriculturally zoned land to a planned development....park is currently operating under a special conditional permit that expired last year. In February, Alameda's environmental health department approved a temporary permit that allows events at the track to exceed the county's noise ordinance standards. Community for a Better Altamont, the neighborhood group opposed to the track, sued the county over that decision. The lawsuit is still pending.

| »

"The court felt that this decision has precedential value," she said.

Submitted: Apr 21, 2007

There are 58 counties in California. Each is the land-use authority for all the unincorporated land within its boundaries. Some do not share the development pressure the UC Merced campus brought to Merced County. Others are richer and more clever than Merced County. If the California Environmental Quality Act is conceived as a well marked public path through a pasture, Merced local government can be seen to frequently stray from that path and step in something. Its tracks have "precedential value."
--------------

4-21-07
Merced Sun-Star
Court blocks mine expansion...Corinne Reilly
http://www.mercedsunstar.com/local/story/13508891p-14115210c.html

A California appeals court has blocked the expansion of a Le Grand mining company, reversing a Merced judge's decision that environmental reviews of the expansion were adequate...judgment is a victory for neighbors and environmentalists who filed suit against the Jaxon Enterprises mine and Merced County, arguing that the county violated the California Environmental Quality Act when it approved the expansion. The ruling says the county failed to fully evaluate how the mine's expansion will affect the environment...decision, handed down earlier this month by the 5th District Court of Appeals, reverses a 2006 ruling by Merced County Superior Court Judge Ronald Hansen. In 2004 the county Board of Supervisors voted to approve environmental studies on the mine's proposal and OK the expansion. Under the latest ruling, that approval is thrown out...Jaxon Enterprises must redo the environmental reviews and reapply for a county permit. Raptor Rescue Center attorney Marsha Burch said the main problem with the original study was that it failed to recognize that the mine wasn't just expanding its acreage, but also its output. "It was never made clear to the public or to the decision makers that the mine would actually be increasing their production," said Burch. "They were using incorrect information to conduct their entire analysis." Burch said the ruling carries extra weight because the appellate court decided to publish their judgment. That means future cases related to the California Environmental Quality Act can cite the ruling as case law. "The court felt that this decision has precedential value," she said. This is the third case brought by the Raptor Rescue Center against Merced County that has produced published case law. The other petitioners in the recent case were Protect Our Water and the Le Grand Community Association.

| »

Appellate Court overturns Merced Superior Court CEQA decision: Jaxon Mine must do new EIR

Submitted: Apr 11, 2007

MERCED (April 11, 2007) – The Court of Appeal for the State of California, Fifth District, ruled Tuesday in favor of a petition brought by San Joaquin Raptor Rescue Center, Protect Our Water and Le Grand Community Association against the Merced County Board of Supervisors and Jaxon Enterprises. In 2004, the County supervisors approved a badly flawed environmental impact report and conditional use permit for Jaxon Enterprises Mine near Le Grand to expand its mining operations. The appellate court ruling overturns the decision of the Merced County Superior Court in favor of Jaxon and Merced County.

The ruling means that Jaxon must complete a new EIR and conditional use permit for its expansion project on White Rock Road.

The appellate court ruled that Jaxon’s EIR, the board of supervisor’s approval of it, and the trial court’s decision violated the California Environmental Quality Act, which governs the preparation of EIRs, in four parts of the Act. The higher court published its rulings on the four parts, making them available for citation as case-law precedents for future litigation under CEQA.

The four published rulings under CEQA in which the appellate court agreed with the Raptor Center et al and disagreed with Jaxon and Merced County are:

· CEQA standard of review
· Project description and environmental setting
· Specific environmental impacts and mitigation measures
· Prejudice (abuse of discretion by the Merced County Board of Supervisors).

Jaxon Enterprises indemnified Merced County for legal expenses incurred in defending its approval of the EIR. Therefore, the County suffers no economic consequences for producing a published decision providing statewide case-law precedents for challenging land-use authorities’ abuse of discretion. This is the third case brought by the Raptor Center, Protect Our Water, and others in recent years that has produced published case law arising from decisions made by the Merced County Board of Supervisors that the appellate court has ruled violate CEQA.

“CEQA attorneys throughout California are using the precedents from this appellate court’s decisions against Merced County,” Lydia Miller, president of San Joaquin Raptor Rescue Center said. “The Merced system, where special interests pay for the legal costs of defending fatally flawed EIRs, is getting a statewide reputation for producing good case law from the Merced County supervisors’ habit of approving bad projects.

“Marsha Burch, of the law offices of Don Mooney, wrote and argued brilliantly in this case for the natural resources and public health and safety in Merced County,” Miller added.

Below find the portions of the appellate court opinion that have been published -- editors)

For further information contact:

Lydia Miller
San Joaquin Raptor Rescue Center
(209) 723-9283

DONALD B. MOONEY
MARSHA BURCH
Law Offices of Donald B. Mooney
Davis CA 95616
(530) 758-2377

San Joaquin Raptor Rescue Center
Protect Our Water
----------------

From: Opinion, Certified for Partial Publication, Court of Appeal of the State of California, Fifth Appellate District: San Joaquin Raptor Rescue Center et al v. County of Merced et al, FO 50232 (Super. Ct. No. 148238), filed 4/10/07:

I. CEQA Standard of Review
“In reviewing challenges to the certification of an EIR or approval of a CUP, the court must determine whether the lead agency abused its discretion by failing to proceed in a manner required by law or by making a determination or decision that is not supported by substantial evidence.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390 (Irritated Residents); § 21168.5.) “Courts are ‘not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.’ [Citations.]” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197 (Bakersfield Citizens).) “Provided the EIR complies with CEQA, the [b]oard may approve the project even if it would create significant and unmitigable impacts on the environment.”

(Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) The appellate court reviews the administrative record independently; the trial court’s conclusions are not binding on it. (Ibid.)

“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: the appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review is de novo. [Citations.] We therefore resolve the substantive CEQA issues on which we granted review by independently determining whether the administrative record demonstrates any legal error by the County and whether it contains substantial evidence to support the County’s factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.)

“An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405.) “When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and good faith effort at full disclosure.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) Although CEQA “requires an EIR to reflect a good faith effort at full disclosure; it does not mandate
perfection, nor does it require an analysis to be exhaustive.” (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26.) Therefore, noncompliance with CEQA’s information disclosure requirements is not necessarily reversible; prejudice must be shown. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1197-1198; § 21005, subd. (b).) “[A] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the goals of the EIR process.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.) In such event, the error is deemed prejudicial
“regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirements.” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198.)

“The substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198.) Substantial evidence is defined in the CEQA Guidelines 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.” (Guidelines, §
15384, subd. (a).) Substantial evidence includes facts, reasonable assumptions
predicated upon facts, and expert opinion supported by facts. (§ 21082.2, subd. (c); Guidelines, § 15384, subd. (b).) It does not include argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment. (§ 21082.2, subd. (c).)

II. Project Description and Environmental Setting

A. Project Description

Petitioners challenge the adequacy of the Project description. Under CEQA, a “project” means “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....” (Guidelines, § 15378, subd. (a) [emphasis added]; see also § 21065.) It refers to the underlying “activity” for which approval is being sought. (Guidelines, § 15378, subd. (c).) The entirety of the project must be described, and not some smaller portion of it. (Santiago County Water District v. County of Orange (1981) 118 Cal.App.3d 818, 829-831 [EIR for mining operation failed to include extension of water facilities, obscuring from view an important aspect of the project].) The Guidelines specify that every EIR must set forth a project description
that is sufficient to allow an adequate evaluation and review of the environmental impact. (Guidelines, § 15124.) Among other things, a project description must include a clear statement of “the objectives sought by the proposed project,” which will help the Lead Agency “develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary.” (Guidelines, § 15124, subd. (b).) The description must also include “[a] general description of the project’s technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.” (Guidelines, § 15124, subd. (c).)

“[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 199.) However, “[a] curtailed, enigmatic or unstable project description draws a red herring across the path of public input.” (Id. at p. 197-198.) “[O]nly through an accurate view of the project may the public and interested parties and public agencies balance the proposed project’s benefits against its environmental cost, consider appropriate mitigation measures, assess the advantages of terminating the proposal and properly weigh other alternatives.” (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454.)

The Petitioners primarily argue that the Project description set forth in the DEIR is unstable and misleading because it indicates, on the one hand, that no increases in mine production are being sought, while on the other hand, it provides for substantial increases in mine production if the Project is approved. We agree.

As noted, the DEIR represents that the Project will expand the available acreage and allow for nighttime operations, but will not significantly increase annual production. It states: “The expansion includes the mining of additional acreage, but is not proposed to substantially increase daily or annual production.” (Emphasis added.) To highlight its “no increase” position, the DEIR reports that average production over the past four years was 240,000 tons per year, and indicates the Project will provide for an additional 30 years of mining at an estimated average production of about 260,000 tons per year. In contrast to these numbers, however, the proposed CUP would allow for annual mine production of 550,000 tons per year , which is more than double the production average over the prior four years. In other words, despite assurances to the contrary, the Project includes a substantial increase in mine production.

Although the DEIR does also indicate that Jaxon’s mine would have a peak capacity of 550,000 tons per year (as mined) or 500,000 tons per year (as marketed), such statements were entirely inconsistent with the assurances elsewhere that there would be no increase in production. By giving such conflicting signals to decisionmakers and the public about the nature and scope of the activity being proposed, the Project description was fundamentally inadequate and misleading.

Moreover, it is clear that this curtailed or shifting project description
affected the EIR process. That is, much of the analysis assumes there will be
production levels of only 260,000 tons per year. For example, in the traffic impact section of the DEIR, the discussion of long-term structural road impacts addressed only the effect of 260,000 tons per year, with no discussion of the impact of higher production levels. In the FEIR, one of the responses to comments indicates a comparison was being made between 260,000 tons per year and 240,000 tons per year, suggesting that only a slight increase in production was being considered. (See FEIR, section 4.2, response to 6-13). Additionally, both the DEIR and FEIR state there will be no increase in groundwater pumping or consumptive water usage between the current operations and the proposed Project. However, it is not explained how there could be a major production increase to 550,000 tons per year without any increase in consumptive water usage. (See FEIR, section 4.1, responses to 2-8; and DEIR, section 3.3.) It appears that the underlying assumption in the water analysis, and throughout much of the EIR, is that the Project does not provide for substantial increases in annual mine production from prior levels.

These curtailed and inadequate characterizations of the Project were enough to mislead the public and thwart the EIR process. As noted in County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d 185, when an EIR contains unstable or shifting descriptions of the project, meaningful public participation is stultified. “A curtailed, enigmatic or unstable project description draws a red herring across the path of public input.” (Id. at p. 197-198 [holding that although the “ill-conceived, initial project description” did not carry over into impacts section of EIR, the shifting description did “vitiate the city’s EIR process as a vehicle for intelligent public participation”].)

The public hearings reflect similar confusion about the level of production allowed under the Project. Before the Board of Supervisors, the Project applicant made the following assurances: “We’re not talking about producing more material than we’re producing now. … Our quantity that we’re asking to be permitted to mine is the same as we’ve been permitted to mine in the past.” Similarly, Mr. Steubing of Resource Design Technology, Inc., the consulting firm assisting in the EIR preparation, testified that “there’s no additional operations. It’s just existing baseline.” Mr. Steubing had previously informed the planning commission that “there’s nothing new from existing
conditions.” He even indicated regarding Jaxon’s mine that “[t]hey are permitted to mine up to 550,000 tons a year.” This later statement conflicts with the FEIR’s response to comments, in which the County reported the existing permit would allow 240,000 tons per year.

In City of Santee v. County of San Diego, supra, 214 Cal.App.3d 1438, the Court of Appeal rejected an EIR for inconsistencies in the project description. In that case, the EIR evaluated a prison project using variable figures to determine the duration of the temporary facility -- i.e., from three years to seven years to an indefinite length. Concluding that the EIR did not contain an accurate, stable and finite project description, the court held that the EIR could not “adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences.” (Id. at pp. 1454-1455.) The same is true in the present case. The inconsistent description, which portrayed the Project as having “no increase” in mine
production while at the same time allowing for substantial increases above recent historical averages, failed to adequately apprise all interested parties of the true scope and magnitude of the Project. For this reason, we conclude that the EIR in this case was insufficient as an informational document for purposes of CEQA, amounting to a prejudicial abuse of discretion.

Because the failure to provide a stable and consistent project description amounted to a prejudicial abuse of discretion, we conclude that the Board’s approval of CUP 99009 and its certification of the EIR were invalid and must be set aside. In the event that CUP 99009 is pursued further, we hold that a new EIR will have to be prepared and circulated, in order to clearly specify in the project description that the project includes and allows significantly increased production (over recent annual averages) up to a peak level of 550,000 tons per year.

B. Baseline Environmental Setting

Petitioners also contend that the EIR failed to adequately describe the existing environmental setting. “Before the impacts of a project can be assessed and mitigation measures considered, an EIR must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined.” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952.) The Guidelines state that an EIR must include a description of “the physical environmental conditions in the vicinity of the project,” which constitute the “baseline physical conditions” for measuring environmental impacts. (Guidelines, § 15125, subd. (a).)

Although the baseline environmental setting must be premised on realized physical conditions on the ground, as opposed to merely hypothetical conditions allowable under existing plans (see Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 186-187 [general plan amendment]; City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 246-247 [rezoning]), established levels of a particular use have been considered to be part of an existing environmental setting. (See Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1274, 1278 [existing airport operations]; Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 242 [established traffic levels from mine operations]; Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170 1196.) “Environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods.” (Save Our Peninsula Committee v. Monterey Bay County Board of Supervisors (2001) 87 Cal.App.4th 99, 125).

In Fairview Neighbors v. County of Ventura, the court allowed traffic numbers occurring when the mine operated at peak capacity pursuant to the prior CUP to be the “baseline,” since mine operations were widely variable depending on market factors. The peak capacity (over 810 truck trips) was actually achieved in years prior, so it was not a mere hypothetical situation. The court rejected the appellant’s claim that actual existing traffic numbers (at the time of the EIR) had to be used. (Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th at pp. 242-243.) Thus, in the situation of an existing mine operation, a description of baseline environmental setting may reasonably include the mine’s established levels of permitted use.

In the instant case, the respondents claim to have used a four-year average of mine operations (i.e., 240,000 tons per year) as the baseline of the existing mine operations at the 90-acre site. Conversely, the Petitioners contend that a more accurate baseline would be 100,000 tons per year, because (according to petitioners) only 100,000 tons per year was permitted to be mined under the prior CUP (No. 3603). We agree with respondents that there is nothing in the administrative record to support the Petitioner’s contention that there was a 100,000 tons per year restriction under the
prior permit. In fact, CUP 3603 was not part of the administrative record below, and when respondents attempted to introduce CUP 3603 into the record in order to remove any doubt, the Petitioners objected.

Since established usage of the property may be considered to be part of the environmental setting (Fairview Neighbors, supra, 70 Cal.App.4th 238), and such usage was adequately shown by the annual production averages, we believe there is substantial evidence in the record to support the County’s use of 240,000 tons per year as a baseline for existing conditions on the 90-acre site.

The real problem, however, is that the EIR does not clearly identify the baseline assumptions regarding mine operations in its description of the existing environmental setting. In the introductory section of the DEIR a generalized statement is made that “existing conditions” include “the currently permitted extraction of aggregate materials” and processing activities, but the existing conditions are not defined or quantified. And although the four-year production average of 240,000 was apparently used in the impacts section(s) of the EIR, nowhere is that fact plainly stated. Such an omission clearly falls short of the requirement of a good faith effort at full disclosure. (Guidelines, § 15151.) The decisionmakers and general public should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis. “An EIR must include detail sufficient to enable those who did
not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405.) “The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442.)

This failure to clearly and conspicuously identify the baseline assumptions for purposes of describing the existing environmental setting further degraded the usefulness of the EIR and contributed to its inadequacy as an informational document. Accordingly, we hold that in any new EIR prepared in connection with this proposed Project, the baseline must not be obscured, but must be plainly identified in the EIR.

III. Specific Environmental Impacts and Mitigation Measures

Next, Petitioners have argued that the EIR failed to adequately analyze impacts on water, traffic, air quality and biological resources.

“The fundamental purpose of an EIR is ‘to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment.’ (§ 21061.)” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th 412, 428.) Thus, an EIR must adequately identify and analyze the significant environmental effects of the proposed project. (§ 21100, subd. (b); Guidelines, § 15126.2, subd. (a).) In assessing the impact of a proposed project on the environment, the lead agency normally examines the “changes” in existing environmental conditions in the affected area that would occur if
the proposed activity is implemented. (Guidelines, § 15126.2, subd. (a); and see, Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 289.) “Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects.” (Guidelines, § 15126.2, subd. (a).) The degree of detailed analysis necessary in an EIR is summarized in the Guidelines as follows: “An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. 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. ... The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.)

As a preliminary matter, we agree with Petitioners that it was necessary in this case for the EIR to include some analysis of the impacts that would result from peak levels of production. Peak mine operations of 550,000 tons per year was an aspect of the Project itself, as well as a reasonably foreseeable use, and thus the environmental effects thereof clearly had to be analyzed in the EIR. (See Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at p. 194 [EIR must analyze entire development that is allowed by project’s approval]; Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 396-399 [reasonably foreseeable future activity must be described and analyzed in EIR].) Consequently, one aspect of the analysis of environmental impacts that had to be considered in the EIR was the effect on the existing environmental conditions of substantial increases in annual mine production above baseline levels, including consideration of the reasonable potential of mine
operations at peak levels of operation.

We now turn to the adequacy of the EIR’s analysis of particular impacts.

A. Impact of the Project on Water

It is claimed by Petitioners that the EIR fails to adequately analyze impacts of the Project to groundwater supplies and surface water quality. We will begin with the discussion of groundwater impacts.

1. Groundwater

The EIR outlines that water used during mining and processing is “currently (and will continue to be) a combination of accumulated rainwater in the bottom of the excavation areas, flows from the perched groundwater table in the near-surface alluvium, and an on-site well.” Overall water used for the Project is estimated as follows: “Although total Project water usage is about 500 gallons per minute (gpm), 10 hours per day (on average) most of this water is continuously recycled through the ponds and processing system. Make-up water comes from the on-site well .… In the summer months, the groundwater inflows to the excavation cease and the well becomes the principle source of make-up water. The maximum consumptive use of pumped water occurs from July through September.” Annual consumptive water use is estimated as follows:

“Based on information provided by the Applicant, current consumptive water use involves groundwater pumping at the rate of about 100 gpm for 10 hours per day, two days per week from July through September. Spread over a five-day work week, this consumptive water usage amounts to about 24,000 gallons per day, or approximately 2.2 acre-feet per month. There are no records of consumptive use or data on well production at other times of the year from which to derive the annual consumptive use in acre-feet
per year; however, it can be estimated assuming consumptive use is proportional to the monthly climatic deficit (evaportranspiration [Eto] minus precipitation). By this method, the annual consumptive use is estimated to be 13.1 acre-feet per year (see calculation sheet in Appendix G-2, Estimated Consumptive Use by Month.)”

The EIR then concludes that “[n]o increase in consumptive water use is anticipated as a result of the mine expansion.” The rationale provided for this conclusion is that when nighttime operations occur, rates of water usage would not increase because “nighttime operations would simply replace the usual daytime operations.” Also, in the case of 24-hour operations for specific road or emergency projects, “the only processing equipment to operate longer-than-normal hours would be the asphaltic batch plant, which uses no water.” Process water usage “is associated entirely with crushing operations.”

The EIR then addresses, under Impact 3.3-2, the concern that the Project may have a potential impact to deep groundwater supplies and could result in an increase in groundwater pumping during summer months, a time when existing groundwater is also under high demand from neighboring wells. The EIR notes that known deep groundwater occurs in a five-foot thick zone of sand layered between impermeable clay sediments at a depth of over 200 feet below ground surface. Although this aquifer is said to be “poorly characterized,” its “storage capacity and interconnections to aquifer(s) tapped by neighboring wells are unknown although it is apparent that the existing operation and neighboring uses have coexisted in a sustainable fashion for some time.” Thus, EIR concludes, “it can be assumed that pumping demand is less than or equal to recharge.” For purposes of this conclusion, “the existing operation, including its current groundwater use, is considered part of the baseline condition for this analysis.” The EIR acknowledges that well pumping is not metered, so the existing water extraction rate is based on estimates provided by the applicant.

The EIR notes than an increase in overall pumping rates and quantities could cause groundwater levels in neighboring wells to be adversely affected. However, the EIR reasons that because crushing activities would not occur at night, any increase in the hours of operation would not increase water usage. Thus, “water consumption is anticipated to remain at the current level.”

Finally, the EIR concedes there is potential for stress on the deep aquifer during the summer months when agricultural pumping is also at a maximum. Allegedly, this would not be a “project-related change, but rather an ongoing condition.” Further, the EIR notes that the aquifer has not been depleted so far, and has apparently recharged from year to year. “In general, a thin aquifer that is temporarily depressurized from short periods of high rates of pumping will typically recover when pumping ceases, so long as overall withdrawals balance with aquifer recharge.” The EIR assumes that will continue to be the case here “given the historical sustainability of
the deep groundwater supply.”

However, the EIR recognizes that any increase in consumptive Project water usage “could affect the ability of the deep groundwater aquifer to sustain other existing consumptive uses,” which is a potentially significant impact. Therefore, as a mitigation measure, it was required that the applicant “[m]aintain the current Project consumptive use (estimated by the Applicant as pumping 20 hours/week at 100 gpm or less from July through September.)” (Emphasis omitted.)

Petitioners contend that the analysis of groundwater impact is inadequate because it fails to take into account and analyze the impact of substantially increased levels of production at the mine. We fully agree. The conclusion in the EIR that water consumption will remain at current baseline levels, even after production is dramatically increased to 550,000 tons per year, is not supported by substantial evidence or reasoned analysis. Moreover, the EIR’s analysis fails to show any correlation between the amount of water used and the level of production, and fails to identify how much groundwater would be used during baseline operations (i.e., 240,000
tons per year) in comparison to how much groundwater would be used during peak operations (i.e., 550,000 tons per year). Without such information, the impact of the project on groundwater supplies cannot be fully or accurately evaluated.

A figure is put forward in the EIR as an estimate of consumptive use of groundwater--i.e., 2.2 acre-feet per month in July-September or approximately 13.1 acre?feet per year. The estimate is apparently based on rates of groundwater pumping observed in July through September. We conclude this information, without more, was inadequate to inform the public and decisionmakers regarding groundwater impacts. It is entirely unclear what these numbers actually represent for purposes of meaningfully evaluating the impact of the Project. As already noted, it is not shown whether the
estimate of groundwater use per year is based on peak production, baseline production, or something else. If it represents baseline production levels, what additional consumptive water use would likely occur during peak production, and in particular, how much additional groundwater would be needed to support the Project at that higher level of production? And what would be the impact of such increased groundwater pumping (when operating at peak production) on other water users who rely on the aquifer, including in
dry rainfall years? Without such information, the true impact of the project on
groundwater supplies cannot be adequately evaluated. The EIR must include “facts to ‘evaluate the pros and cons of supplying the amount of water that the [project] will need.’” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 431; Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d at p. 829 [EIR inadequate where impact of supplying water to mine not adequately analyzed].) Such facts have not been provided here.

Finally, although the EIR included as a mitigation measure that the Project must “maintain the current Project consumptive use (estimated by the Applicant as pumping 20 hours/week at 100 gpm or less from July through September)” (emphasis omitted), a mitigation measure cannot be used as a device to avoid disclosing project impacts. (Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 195-197.) An EIR must analyze the impacts of providing water to the entire proposed project (id. at p. 206), which in this case includes peak production of 550,000 tons per
year. Since maximum production levels (approximately double the baseline) are specifically authorized by the proposed CUP, the EIR should disclose how much groundwater pumping would be needed to support such operations and analyze the impacts thereof. Under the circumstances, CEQA does not allow the EIR to simply assume, without substantial evidence or reasoned analysis, that the same amount of consumptive water will be used at maximum production as is currently being used.

For all the reasons stated above, we conclude that the EIR failed to adequately analyze the impact of the Project on groundwater supplies.

2. Surface Water

Petitioners contend that the EIR fails to adequately analyze impacts to surface water as a result of the Project’s wastewater discharges. We agree. The EIR describes the mine operation as a “zero-discharge facility.” It provides that the Project’s conformance with the California Water Resource Control Board’s Storm Water program will “result in the settlement of all accumulated runoff from operations in the on-site retention ponds,” from which ponds the waste water will be continuously reused in mine operations. The EIR details the surface water hydrology, including the ponding system which will protect against run-off of waste water. Impacts and mitigation measures regarding waste discharge are described. However, it appears that only baseline
production levels were considered. There is no analysis of the impact on surface water quality, including impacts from wastewater discharge, of significantly increased mine production. As with the analysis of groundwater impacts, the EIR’s discussion of surface water quality was deficient because it failed to identify and analyze the impact (if any) of peak mine production.

B. Impact of the Project on Traffic

Petitioners also contend the EIR failed to adequately analyze traffic impacts of the Project. Increased production at the mine would logically mean an increase in the number and frequency of the heavy 25-ton-capacity trucks traversing over the available roads used as haul routes. Petitioners primarily argue the EIR failed to adequately consider the impact upon traffic and road conditions of the mine’s peak production rate of 550,000 tons per year, as authorized under the Project.

In discussing traffic impacts, the EIR considered annual traffic volumes generated by the Project based on the assumption of estimated average production of 260,000 tons per year, or 20,800 total truck trips (10,400 entering and 10,400 exiting). These numbers were used in evaluating the annual distribution of Project traffic on roads using the likely haul routes. As explained in the FEIR, an accepted methodology used by the California Department of Transportation to evaluate traffic index and design of pavement structural sections is to utilize average annual traffic volumes. The FEIR
found it unnecessary to consider higher volumes of traffic, stating that “worst case” annual production levels would not occur every year.

This estimated annual average (i.e., 260,000 tons per year) was used in the analysis of the traffic index. The traffic index is a measure of equivalent single axle loads expected over the design period, and is apparently used to evaluate whether the Project could physically degrade the County roadways. Because of expected wear of Project-related truck traffic on sections of Le Grand Road and White Rock Road, the impacts to these roads would be potentially significant. Consequently, as a mitigation measure the applicant (Jaxon) was required to reconstruct portions of Le Grand Road and White Rock Road to a performance standard of 8.5 on the design traffic index, in order
to mitigate the impacts to the pavement structural section. (DEIR, Mitigation Measure 3.5-2a.)

Petitioners argue that in showing impacts from annual distribution of
Project-related traffic on affected roads, the EIR should have used truck volumes based on maximum annual production of 550,000 tons per year. We note the purpose of this particular analysis in the EIR was to evaluate impacts to the road physical structures over long periods of time (i.e., 20 years) based on estimated annual truck volumes. (See FEIR, Response 6-37.) That being the case, it was not improper in this instance for the EIR to consider an estimated average annual production of 260,000 tons, as one aspect of the analysis. However, that does not mean the analysis was complete, or that more was not required, under the unique circumstance here of huge variation in the
Project description. In light of the widely-shifting Project description in this case, which includes production levels as high as 550,000 tons per year, we hold that some analysis should have been made of long-term impacts on road physical structures based on the reasonable potential of greater frequency or regularity of annual mine operations at or near the maximum production level of 550,000 tons per year. Since this was not done, we agree with the Petitioners that the EIR was inadequate in analyzing this impact.

In other aspects of the analysis, the EIR did consider traffic volumes that would correspond to maximum production levels. In analyzing peak traffic issues, the EIR used the mine’s maximum capacity per day of 5,000 tons of material. Hypothetically, if production were maintained at that daily level throughout the year, it would substantially exceed the Project’s maximum of 550,000 tons per year. As explained in the FEIR, the number was used in the intersection analysis of peak traffic as a “worse case scenario” which would be expected to occur few times, if any, during the life of the Project. By contrast, an average production day was estimated as only 1,000 tons of material.

In regard to said peak traffic analysis, petitioners attack the assumption in the EIR that Project trucks would be evenly spaced throughout the eight-hour work day -- i.e., exactly 24 trucks entering the site empty per hour, and exactly 24 trucks leaving the site full per hour. According to petitioners, this assumption would possibly lead to underestimating potential impacts to traffic congestion during peak traffic hours. We reject petitioners’ argument. The EIR appears to have merely divided the daily truck volume to obtain a per hour average over the course of the work day. Petitioners offer
no reason why this would be an unreasonable methodology in this case. Their argument is essentially that greater specificity was needed -- i.e., that the EIR should have specified whether trucks sometimes enter and leave the site “unevenly” over time. We hold that such minute detail was not required in the analysis in question. The information provided was sufficiently detailed to allow reasoned analysis of the relevant impacts on peak traffic. It was not necessary that the analysis be so exhaustively detailed as to include every conceivable study or permutation of the data. (See Guidelines, § 15151 [information need not be exhaustive]; and Irritated Residents, supra, 107 Cal.App.4th at p. 1396 [“CEQA does not require a lead agency to conduct
every recommended test and perform all recommended research to evaluate the impacts of a proposed project”].)

As summarized by respondents, the petitioners have basically reiterated certain objections set forth in a study conducted by a consultant (Mr. Brohard) of LASER, a group opposed to the project. This includes additional contentions regarding methodology, such as that Project trip generation should have been spread over a 270-day period, rather than 365 days, and that the month of September should not have been used to conduct traffic counts to determine existing traffic volumes. In each instance, the
petitioners have failed to establish any showing that the County acted improperly in relying on the independent traffic study in the DEIR, and on the responses in the FEIR, rather than on Mr. Brohard’s study, in determining whether the EIR adequately addressed traffic impacts. As this court has explained: “When experts in a subject areas dispute the conclusions researched by other experts whose studies were used in drafting the EIR,
the EIR need only summarize the main points of disagreement and explain the agency’s reasons for accepting one set of judgments instead of another.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.)

To summarize, we conclude that the traffic impacts were not adequately analyzed in the EIR with respect to road structural impacts over time (including traffic index based on annual traffic volumes), due to the shifting and confusing Project description, thereby causing the EIR to fail in its role as an informational document. However, in all other respects the traffic analysis was adequate.

C. Impacts of Project on Air Quality

Petitioners argue that the EIR failed to adequately analyze the impact of the Project on air quality. For the reasons noted below, we find the petitioners’ argument to be without merit.

The DEIR contained a detailed and independent air quality analysis utilizing standards of significance established in the CEQA Guidelines. It described the existing environment and air basin, and analyzed potential impacts of the Project on air quality related to emissions (including pollutants), particulate matter, dust and odors. The air quality analysis was subjected to extensive comments, including claimed computational errors by LASER’s air quality consultant (Petra Pless), which were responded to in detail in the FEIR.

However, in response to comments that the DEIR failed to adequately address air quality impacts of maximum production of the mine under the Project, the FEIR provided an “Errata” which included a revised air quality section with specific analysis of the impacts on air quality of mine production of 550,000 tons per annum. The DEIR had only analyzed air quality impacts based on the projected average production of 260,000 tons
per year. Although the quantity of some emissions was higher in the Errata than originally set forth in the DEIR, the level of each individual and cumulative emission category remained below San Joaquin Valley Air Pollution Control District thresholds of significance. Thus, even at the maximum production levels, the FEIR concluded potential impact of the Project on air quality remained less than significant.

Petitioners argue that the revised air quality analysis set forth in the Errata should have been recirculated. We disagree. Because both the analysis in the DEIR and the Errata in the FEIR show the air quality impact to be less than significant, we agree with respondents that the standards for recirculation set forth at CEQA Guidelines section 15088.5 were not triggered. As the FEIR explains: “None of the changes provided in section 3.2 of this Final EIR contain significant new information that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the Project on a feasible way to mitigate or avoid such an effect.”

D. Impact of the Project on Biological Resources

Petitioners next attack the adequacy of analysis in the EIR of impacts on biological resources and wildlife habitat. In particular, the discussion of vernal pools and burrowing owl habitats is challenged.

The EIR describes the presence of vernal pools and ephemerally wet drainage swales within certain areas of the Project site and vicinity. After identifying the potential impacts of the Project, it spells out a number of mitigation measures to prevent or minimize such impacts. The thrust of petitioners’ objections concern the adequacy of these mitigation measures. As discussed below, we find that the mitigation measures -- although adequate in other respects -- improperly defer formulation of significant aspects of mitigation, and therefore fail to comply with CEQA’s informational requirements.

Numerous mitigation measures are specified in the EIR regarding the vernal pools and special-status species that are expressly presumed to exist there. To begin with, the vernal pools and swales would remain outside the limits of mining. The Project footprint would maintain a minimum 25-foot setback from the nearest vernal pools and ephemerally wet drainage swales. According to the analysis in the EIR, this 25-foot setback “should be adequate to maintain the hydrological integrity of these potentially important habitat types once Mitigation Measure 3.3-3 (installation of a cut-off trench) is implemented.” To prevent potentially significant impacts on vernal pools if erosion or sediments from the mine area reached the vernal pools, various erosion controls and monitoring measures are required as further mitigation measures. Preconstruction mitigation measures are also specified to allow mobile animal species to vacate the excavation areas prior to mining. Finally, although the initial reconnaissance or field survey did not detect the presence of certain special-status species in the area of the vernal pools, the EIR presumes that such species are present, and therefore imposes an additional 300-foot buffer. Protocol-level surveys will be conducted prior to any
mining activity within 300-feet of vernal pool/swale areas. No mining activity within the 300?foot buffer would occur until specified conditions are met, namely (a) a protocol survey is conducted showing the absence of such species or (b) implementation of a Management Plan developed by a qualified biologist in consultation with appropriate jurisdictional agencies including California Department of Fish & Game and U.S. Fish and Wildlife Service. (See DEIR, Mitigation Measures 3.6-1a-c, 3.6-2a-d, 3.6-3a-c, 3.6-4a-b and 3.6.6a-b.)

As indicated by the above summary, the EIR allows some specifics of the overall mitigation effort to be developed in response to future protocol studies, prior to allowing phases of mining within the 300-foot setback. For example, under mitigation measure 3.6-3b, if the required spring season protocol survey shows existence of special-status plant species within or adjacent to the vernal pools, a Management Plan must be prepared by a qualified biologist to “maintain the integrity and mosaic of the vernal pool habitat.” The plan will likely include such options as periodic mowing,
rotational grazing, and weed abatement, as indicated in the EIR, and would require the concurrence of applicable regulatory agencies, including U.S. Fish and Wildlife Service and California Department of Fish and Game. It is only after such a Management Plan is developed and implemented that Jaxon could apply to the County for modification of the 300-foot buffer, leaving only the 25-foot setback. A similar approach would be used if special-status plant species are observed in the study of the grassland areas.

The Petitioners argue that because the mitigation measures allow for future formulation of land management aspects of the mitigation measures, the EIR impermissibly defers the development of important mitigation measures until after project approval. CEQA Guidelines, section 15126.4, subdivision (a)(1)(B) specifies as follows: “Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way.” According to Petitioners, to allow land management plans to be developed later fails to
adequately inform the public and decisionmakers, prior to project approval, of the nature and efficacy of the proposed mitigation measures that will be undertaken. (See Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.)

The respondents counter that this is not a deferral of mitigation. To the extent that some aspects of mitigation may be developed in subsequent management plans, it is (according to respondents) merely an example of using performance standards or criteria as expressly permitted under section 15126.4. (Guidelines, § 15126.4, subd. (a)(1)(B); and Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal.App.3d 1011, 1028-1029 [court upheld EIR that set forth a range of mitigation measures to offset severe traffic impacts where performance criteria would have to be met, even though some further study was needed and EIR did not specify which measures had to be adopted by
city].)

On balance, we find that respondent’s position is unpersuasive. Although a generalized goal of maintaining the integrity of vernal pool habitats is stated (see mitigation measure 3.6-3b), no specific criteria or standard of performance is committed to in the EIR. Nor does the EIR present several alternative mitigation measures, in which a selection of one or more of the described options is to be made after further study. Rather, after first presuming that special-status species will be present in or near the vernal pools, the EIR leaves the reader in the dark about what land management
steps will be taken, or what specific criteria or performance standard will be met, if this presumption is confirmed by the later protocol studies. The success or failure of mitigation efforts in regard to impacts on such vernal pool species may largely depend upon management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR. The fact that the future management plans would be prepared only after consultation with wildlife agencies does not cure these basic errors under CEQA, since no adequate criteria or standards are set forth.

We recognize there are circumstances in which some aspects of mitigation may appropriately be deferred. “‘Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.] On the other hand, an agency goes too far when it simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report. [Citation.] If mitigation is feasible but impractical at the time of a general plan or zoning amendment, it is sufficient to articulate specific performance criteria and make further approvals contingent on finding a way to meet them.’ [Citation.]” (Endangered Habitats League Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793; see also, Riverwatch v. County of San Diego (1999) 76 Cal.App.4th
1428, 1448-1450 [a deferred approach may be appropriate where it is not reasonably practical or feasible to provide a more complete analysis before approval and the EIR otherwise provides adequate information of the project’s impacts]; Sacramento Old City Assn. v. City Council of Sacramento, supra, 229 Cal.App.3d at p. 1028-1029 [deferral of agency’s selection among several alternatives based on performance criteria was appropriate]; 1 Kostka & Zischke, Practice Under The California Environmental Quality Act (Cont.Ed.Bar 2006), § 14.10, p. 702-706.) Here, however, no reason or basis is provided in the EIR for the deferral to a future management plan (or plans) of these
particular mitigation measures, even though the EIR expressly presumes that
special-status species will be present in the vernal pool or swale areas. Accordingly, we conclude that the analysis of mitigation measures with respect to special-status species in the vernal pool areas was inadequate, since it improperly deferred formulation of land management aspects of such mitigation measures.

As to the EIR’s mitigation measures concerning burrowing owl habitat, we reach the same conclusion. The EIR admits such owls have nested in the area in the past (observed in 1999). The EIR presumes that burrowing owls nest and winter on the Project site, and states that the Project may cause direct and indirect impacts that are significant. In mitigation measure 3.6-7a, an area of 6.5 acres of grassland habitat with suitable burrows must be preserved, as recommended by the California Department of Fish and Game and the Burrowing Owl Consortium. Further, at least 30 days prior to
commencement of ground disturbance before each phase, a protocol survey for burrowing owls shall be conducted. If they are present, Jaxon must implement a plan for passive relocation of wintering owls, and maintain a minimum 250-foot buffer around nesting owls until a qualified biologist has determined that all young have fledged and are foraging independently. Finally, a qualified biologist shall prepare a management plan for the
burrowing owl preserve, which shall be approved by California Department of Fish and Game prior to any mining and implementation of the proposed plan. Although many valid mitigation measures are described, no reason is given for deferral of the land management plan concerning the burrowing owl preserve, nor are any criteria or standards of performance set forth. We conclude the EIR improperly deferred formulation of this mitigation measure as well.

Finally, Petitioners note that in mitigation measure 3.6-2d, if the Project causes loss to functioning and value of vernal pool areas, there must be mitigation in the form of replacement by either creating vernal pools or swales within the conservation area on site, or by off-site purchase of wetland banking credits. Since there are no wetlands conservation banks present in the County of Merced, the latter alternative is unavailable. The FEIR acknowledges this fact, but emphasizes that the other option -- i.e., creating new vernal pools in the conservation area onsite -- remains a reasonable mitigation measure. And if mitigation credits become available within the watershed, the FEIR further explains, then “such acquisition would become an additional available measure.” In light of this clarification in the FEIR, petitioners have failed to demonstrate this particular mitigation measure is inadequate or unsubstantiated....

VIII. Prejudice

‘“When the informational requirements of CEQA are not complied with, an agency has failed to proceed in a ‘manner required by law.’ [Citations.] If the deficiencies in an EIR ‘preclude informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred.’ [Citation.]” (Bakersfield Cititzens, supra, 124 Cal.App.4th at p. 1220.)

In the present case, the EIR was fundamentally flawed due to a curtailed and shifting Project description, which meant that the public and decisonmakers were not adequately informed about the full scope and magnitude of the Project. The unstable description carried over into the impacts analysis, resulting in an understated and inadequate discussion of water and traffic impacts, as discussed herein. Compounding these errors, the baseline assumptions were not clearly identified. Additionally, the EIR improperly deferred formulation of mitigation measures with respect to protection of biological habitats of special-status species, and provided inadequate responses to certain comments. These deficiencies in the EIR were prejudicial because they precluded informed decisionmaking and public participation. Therefore, certification of the EIR was a prejudicial abuse of discretion.

As a result, the Project approvals must likewise be voided. As this court summarized in Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1221: “The Guidelines unequivocally require the lead agency to certify a legally adequate final EIR prior to deciding whether or not to approve or carry out a contested project (Guidelines, §§ 15089 to 15092.) ‘[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decisionmakers, and the public, with the information about the project that is required by CEQA.’ [Citations.] Thus, the project approvals and associated land use entitlements also must be voided.”

DISPOSITION

The judgment is reversed, and the action is remanded to the trial court with directions to grant the writ of mandate vacating County’s certification of the EIR and its approval of the Project (including CUP 99009), based on the violations of CEQA as set forth herein. The trial court shall, in addition, issue orders that the Project may be considered for potential re-approval by the County, if a new, legally adequate EIR is prepared, circulated and certified in compliance with CEQA, including opportunity for public comment. Upon consideration of such new EIR, and in accordance with all
applicable laws, the County may then determine whether or not to re-approve the Project.

The County may require modification of the Project and/or additional mitigation measures as conditions of approval...

Kane, J.
WE CONCUR:

Harris, Acting P.J.

Dawson, J.

| »

The barn-door problem

Submitted: Apr 10, 2007

News that the national foreclosure rate is higher than at any time since the Great Depression is obviously not good. But, it has one positive side. It reveals the driving force of the whole finance, insurance and real estate sector of the economy, the "lending industry," as the Fresno Bee put it in the editorial below.

In the growing subprime-load debacle, in which Merced has the dubious distinction of leading all other jurisdictions in California with 22-percent subprime loans (nearly twice as high as the national average), the press sets aside the environmental damage done to Merced and the San Joaquin region by the building boom -- air quality, water quality and quantity, endangered species taken -- the amount of farm land paved over, the failure of elected local land-use authorities to in any way compel development to pay for itself, and the general scoff-law attitude of elected officials and city and county staff toward any laws that stand in the way of development.

Almost every lawsuit filed on these issues in the last seven years has had a provision asking for a county General Plan update. Last year, Merced County agreed to one, guided by a secret steering committee, and the process lumbers along with hand-picked "members of the public" to validate the deal. Meanwhile, the existing General Plan, the document that was supposed to have guided development in the county, was never updated even to account for UC Merced, much less for the development boom the campus caused. It was, instead, constantly "amended," which by statute it must be to accommodate major development projects. The present General Plan is a shapeless mass of amendments documenting chaotic growth.

Even those who have not followed the development process in Merced during the past seven years must see that the present General Plan update process is no more than a pretense of pushing an open barn door toward a closed position long after the horses have left the barn, the corral and the ranch.

Among the many public lies the Merced development boom entailed was that UC Merced was immediately necessary to accommodate the "Tidal Wave II" of UC students. That deception has also been revealed.

A cabal of politicians, developers (some of them UC regents), UC administrators, large local landowners, local insurance interests, the UC/Great Valley Center, and enabled by the "lending industry," local realtors and planning staff, created this unfortunate situation, unprecidented since the Great Depression.

We cannot predict how it will all come out except to say, based on past experience, that the situation will not be faced honestly in Merced. The consequence of the growing need for "leadership" to conceal what it has done. If the past is any guide to the future, this political need will result in a combination of rewriting history, choosing distracting targets and that old favorite, arrogant posturing. It looks like local public discourse will consist of the "haves" blaming the "have-nots" for not having, while the haves await the next speculative boom to get more.

Bill Hatch
-------------

Notes:

4-6-07
Subprime meltdown...Editorial
http://www.fresnobee.com/274/story/40173.html

California should provide stronger mortage protections. What seemed an impending home foreclosure crisis when the Legislature held hearings in January is now a full-blown meltdown.A big part of the problem is the widespread use of subprime loans -- high-cost loans to people with weak credit. The Valley is especially thick with such loans. Almost 22% of home loans in Merced were subprime, highest in the state. Bakersfield, Modesto, Visalia and Fresno were close behind, all with rates above the national average of 14.7%. The result is costly: Three of the five U.S. regions with the highest projected foreclosure rates for subprime loans made last year are in the Valley, including Fresno. California should lead in providing solutions. But it's not... Most borrowers once got their loans directly from a lender; today a majority go through a mortgage broker. Too often, these brokers steer buyers to a higher-rate loan because they get rebates from lenders. So the broker gets a perfectly legal kickback and the lender gets a more profitable loan. But the borrower gets stuck with a higher interest rate.
California should fix this. Legislators also should look at the strong laws in North Carolina, New Mexico, New York, West Virginia, Ohio, Massachusetts and New Jersey, emulate them and improve upon them.Legislators must have the courage to stand up to the lending industry, which continues to oppose stronger California laws, and protect consumers from reckless, abusive loans. The home mortgage crisis in California is not going to be self-correcting.

Fresno Bee
UC Merced tops in diversity...Farin Montanez
http://www.fresnobee.com/263/story/40214.html

UC Merced is leading all UC campuses for minority admission rates, university officials said Thursday. Thirty-one percent of students admitted to the freshman class this fall at the University of California at Merced are Hispanic, black or American Indian -- groups considered "underrepresented" by the University of California system. UC Merced may be leading the way in diversity, but it has been struggling to enroll enough students. Officials hope this is the year that the Merced campus, which opened in 2005, hits its enrollment goal of 2,000 students after missing the target for its first two years. Nineteen percent of UC Merced's applicants are from the San Joaquin Valley, Ruiz said, bearing out a major argument for establishment of the campus. University of California total admissions hit a record high...But UC Merced -- now with an enrollment of 1,286 -- has failed to grow as expected. Still, the campus is not a first choice for many...than 12,000 freshmen were offered fall 2006 admission to UC Merced last year, only about 4% -- slightly more than 450 students -- signaled their intent to enroll.

Boston Globe
The Housing Squeeze ... Robert Kuttner
http://www.commondreams.org/archive/2007/04/07/369/
...the latest financial scandal, the meltdown in sub prime mortgages. This is the private sector’s “solution” to high-priced housing. Offer loans to borrowers who would not ordinarily qualify, based on their incomes and credit histories. Make the mortgages seem affordable by giving low, temporary “teaser” terms — very low interest for the first two years and much higher costs afterward . Not surprisingly, as the teaser period expires and people face the real costs, defaults increase — about 15 percent of all sub prime mortgages at latest count, and rising. Many lenders and borrowers gambled that housing prices would keep rising, allowing borrowers to refinance. But with housing values now in a temporary pause, upwards of a million sub-prime borrowers are likely to lose their homes before this latest financial debacle unwinds...There’s no real money to subsidize new construction, either of rental housing or owner housing. Nor is there federal money to underwrite low-interest mortgages for first-time home buyers, leaving them to the tender mercies of the sub prime loan sharks...And, as Amy Anthony, former Massachusetts secretary of communities and development, testified, upwards of $60 billion of federal money spent between 1965 and 1990 to subsidize private developers to build affordable housing for the elderly, the poor, and the disabled, is now being squandered. Thanks to a loophole in these programs demanded by for-profit developers as a condition of participating, once the initial loan is paid off, they are free to sell or rent the housing to the highest bidder. An entire sector of affordable housing built at taxpayer expense served only one generation of renters and is now being irrevocably lost. There is a common thread here. Affordable housing requires social investment, plus public-minded regulation. The profit motive can sometimes serve public purposes, but most mortgage bankers and most developers are in it to make a buck and will achieve social goals only with careful government rules and monitoring. In many cases, it’s more efficient for government to provide subsidies directly, not through tax gimmicks, not through bribing private developers or expecting private bankers to be do-gooders. This is not just about housing “the poor.” The default of housing and mortgage lending policy makes life harder for much of the working middle class and for the economy...

| »

The MacDonald Affair

Submitted: Mar 31, 2007

Having observed and commented on the corruption of local, state and federal environmental law in this region for nearly a decade, the recent hoopla surrounding Julia MacDonald, the deputy assistant secretary for fish, wildlife and parks in the Department of Interior, is not news. We met MacDonald shortly after her appointment as aide to Judge Craig Manson, the assistant secretary of fish, wildlife and parks, in 2002. She urged us to get in touch. We think we have her card somewhere.

Locally, we see it as being within the general context of another spring offensive by finance, insurance, real estate and the Bush regime against the San Joaquin Valley. We are going into a drought, Bush is losing his war, and the local speculative housing boom is collapsing, generating skyrocketing foreclosure rates and some class-action suits on building defects. However, as we have said since they stole the Florida election in 2000, these people crossed their Rubicon and have had nowhere to go since but straight into the public's face.
The Badlands editorial staff honestly admits that MacDonald's corruptions would be quite beyond our scope if any of Interior's Inspector General's report were news to us. But we've covered most of it when her meddling and bullying first appeared. It's all back there in the archives somewhere and we will dig it out at the appropriate times. Meanwhile, she's a certifiable California "waterperson." She went after Klamath Bull Trout to help Rove do his stunt in the Klamath basin before the 2004 election; she went after the San Joaquin Delta Smelt, when heavy pumping caused by Interior's brokered Colorado River Agreement meant Southern California would have to get more water from the Delta; she went after seasonal wetlands and vernal pools and California Tiger Salamanders, all local issues here in the Pombozastan. We reported it all as it was happening.

However, that said, we were titillated by MacDonald's intimate relations with the California Farm Bureau and Pacific Legal Foundation, on the same ideological page: private property's right to public water.

On the other hand, the changes proposed by Interior Secretary Dirk Kempthorne to the Endangered Species Act, a story that appeared a day earlier, is news. A story of human sacrifice, particularly of a woman, is cool, but the dry, bureaucratic language of the proposed ESA changes are meanwhile concealed. Yet, these proposals capture the worst aspects of the Pomboza bill to gut the ESA in the last session, which aroused so much anger in the environmental community that, with help from former Rep. Pete McCloskey, they defeated Pombo at the polls. Furthermore, they would turn over many key ESA decisions to governors. In California, where the governor and the Legislature is actually owned by finance, insurance and real estate special interests, you could kiss some species goodbye if this proposal passes judicial review. As a recently retired Fish and Wildlife Service endangered species specialist put it, the reason we have federal protections for endangered species is because the states will not protect them.

The Bush regime is consistent, if nothing else, and that consistency has fallen heavily on the San Joaquin Valley. The other federal proposal-of-the-month of special impact is the idea of privatizing the heavy-metal laden water of the San Joaquin Valley west side, including giving the water districts partial ownership of the San Luis Reservoir. This is the Bush regime solution to upcoming review of the selenium situation around Kesterson.

Of course, there is a connection between this story and the MacDonald Affair. She's a genuine California water girl.

But, our question is: was she any worse than the Cowgirl Chancellor of UC Merced, who built the first phase of the beloved boondoggle without the required federal permits, quit her job (along with a number of other of her starting team), and dropped a regulatory mess in her successors' laps and a bigger mess in the community's lap. If MacDonald was in the air in Washington, the Cowgirl was right here on the ground, building that anchor tenant for one of the greatest, most destructive speculative real estate booms in the nation. Nor has the attempt by UC to corrupt environmental law and regulation at every level of government by its lobbyists, administrators, lawyers, politicians like Dennis Cardoza, Shrimp Slayer-Merced and the regional finance, insurance and real estate special interests stopped. These interests will destroy California's fragile water-delivery system in order to save their profits. A key step in that is to get public attention off endangered species that in any way appear to interfere with delivery of paper water through the Delta pumps via crumbling levees. The collapsing housing bubble only encourages them.

There is a rough equivalence between the endangered species menaced by MacDonald's policies and the misery of students at UC Merced, which is today a sort of developer's model home of a university, with decorative students in residence (not all of them expiring in the shrubbery). However, like the endangered species, about which the Cowgirl's rhetoric was just fine, the students are not there for display; they want a life, too.

Nope. We admit the corruption of the federal government and the University of California, in full color, is too much for our humble descriptive abilities. We'll leave the job to the mainstream press. Its reporters are well-rested after seven years on a vacation from reality. Let them "investigate" and give each other prizes.

Meanwhile we will ask why Judge Manson was rewarded for his crimes against Nature with an appointment to McGeorge Law School. McGeorge needs some looking into, actually. Its dean is a former general counsel for the CIA. What's going on there? Why did UC Boalt Hall hire John Yoo, author of the torture-justifying memo during his years as counsel to the president?

And, isn't the timing of the MacDonald story and the ESA changes interesting? How much do top Fish and Wildlife Service officials support the Bush proposals? FWS Director Dale Hale appears, in the Inspector General's report, to be the epitome of a guardian of pure biology in the MacDonald Affair stories, while simultaneously trying to squelch any news about the new ESA rules. Are we headed for a "show hearing" at the House Natural Resources Committee in May on MacDonald, while the ESA changes wend their unnoticed way through the Bush regime "process"?

Will the next proposal for rule changes coming from the Interior and Fish and Wildlife Service be to privatize all the wildlife refuges in the nation?

We might also ask -- from the ground here in UC/Great Valley Center/Pombozastan, home of a state "blueprint" for growth along the lines indicated by Pombo Family Real Estate Farms -- how soon will UC give up on UC Merced and move it to Tracy, which wants a college, where it can be absorbed by Lawrence Livermore National Laboratory's Level-4 Biowarfare Lab and the Tsakopoulos family's Hellenic studies programs? Our nation needs genetic technologists who can create the biological weapons of the future (and, of course, their antidotes) while simultaneously learning to conjugate irregular Greek verbs and reading a bit of Jaeger's Paideia. Don't it? Ain't that the kind of "shared experience" we need?

How long will it be before the next Peripheral Canal proposal surfaces to convey paper water in a drought to Southern California? Before or after the next levee break?

It is the very bravest of new worlds possible, my dear Calaban. How's the asthma?

Bill Hatch
----------------------------

3-28-07
New York Times
Proposed changes would shift duties in protecting species...Felicity Barringer
http://www.nytimes.com/2007/03/28/washington/28habitat.html?_r=1&oref=slogin

The Fish and Wildlife Service is considering limiting the ability of federal wildlife protection agencies to intervene on behalf of endangered species that may be harmed by federal actions...would also increase the role of state governments in administering some of the species protections that are now the responsibility of the Fish and Wildlife Service and the National Marine Fisheries Service. H. Dale Hall...said Tuesday that the draft proposal detailing the changes was “really a beginning of a process.” "It had all options on the table,” Mr. Hall said. “It really doesn’t represent anything that we support or don’t support.” Jan Hasselman, a lawyer with the Seattle office of Earthjustice, an environmental group, said that he had obtained a copy of the draft proposal from a federal official, and that it was created in June but had been edited as recently as a month ago. “I certainly don’t think that anyone ever contemplated a wholesale delegation of fundamental duties” to the states, Mr. Hasselman said. Interior Secretary Dirk Kempthorne proposed legislation amending the act when he was a senator from Idaho, and more drastic changes were proposed in the last Congress in an unsuccessful bill.

3-27-07
Salon
Inside the secretive plan to gut the Endangered Species Act
Proposed regulatory changes, obtained by Salon, would destroy the "safety net for animals and plants on the brink of extinction," say environmentalists.
By Rebecca Clarren

The U.S. Fish and Wildlife Service is maneuvering to fundamentally weaken the Endangered Species Act, its strategy laid out in an internal 117-page draft proposal obtained by Salon. The proposed changes limit the number of species that can be protected and curtail the acres of wildlife habitat to be preserved. It shifts authority to enforce the act from the federal government to the states, and it dilutes legal barriers that protect habitat from sprawl, logging or mining.

"The proposed changes fundamentally gut the intent of the Endangered Species Act," says Jan Hasselman, a Seattle attorney with Earthjustice, an environmental law firm, who helped Salon interpret the proposal. "This is a no-holds-barred end run around one of America's most popular environmental protections. If these regulations stand up, the act will no longer provide a safety net for animals and plants on the brink of extinction."

In recent months, the Fish and Wildlife Service has gone to extraordinary efforts to keep drafts of regulatory changes from the public. All copies of the working document were given a number corresponding to a person, so that leaked copies could be traced to that individual. An e-mail sent in March from an assistant regional director at the Fish and Wildlife Service to agency staff, asking for comments on and corrections to the first draft, underscored the concern with secrecy: "Please Keep close hold for now. Dale [Hall, director of the U.S. Fish and Wildlife Service] does not want this stuff leaking out to stir up discontent based on speculation."

Many Fish and Wildlife Service employees believe the draft is not based on "defensible science," says a federal employee who asked to remain anonymous. Yet "there is genuine fear of retaliation for communicating that to the media. People are afraid for their jobs."

Chris Tollefson, a spokesperson for the service, says that while it's accurate to
characterize the agency as trying to keep the draft under wraps, the agency has every intention of communicating with the public about the proposed changes; the draft just hasn't been ready. And, he adds, it could still be changed as part of a forthcoming formal review process.

Administration critics characterize the secrecy as a way to maintain spin control, says Kieran Suckling, policy director of the Center for Biological Diversity, a national environmental group. "This administration will often release a 300-page-long document at a press conference for a newspaper story that will go to press in two hours, giving the media or public no opportunity to digest it and figure out what's going on," Suckling says. "[Interior Secretary Dirk] Kempthorne will give a feel-good quote about how the new regulations are good for the environment, and they can win the public relations war."

In some ways, the proposed changes to the Endangered Species Act should come as no surprise. President Bush has hardly been one of its fans. Under his reign, the administration has granted 57 species endangered status, the action in each case being prompted by a lawsuit. That's fewer than in any other administration in history -- and far fewer than were listed during the administrations of Reagan (253), Clinton (521) or Bush I (234). Furthermore, during this administration, nearly half of the U.S. Fish and Wildlife Service employees who work with endangered species reported that they had been directed by their superiors to ignore scientific evidence that would result in recommendations for the protection of species, according to a 2005 survey of more than 1,400 service biologists, ecologists and botanists conducted by Public Employees for Environmental Responsibility, a nonprofit organization.

"We are not allowed to be honest and forthright, we are expected to rubber stamp
everything," wrote a Fish and Wildlife Service biologist as part of the survey. "I have 20 years of federal service in this and this is the worst it has ever been."

The agency has long seen a need to improve the act, says Tollefson. "This is a look at what's possible," he says. "Too much of our time as an agency is spent responding to litigation rather than working on recovering the species that are most in need. The current way the act is run creates disincentives for people to get involved with recovering species."

Kempthorne, boss of the Fish and Wildlife Service, has been an outspoken critic of the act. When he was a U.S. senator from Idaho in the late 1990s, he championed legislation that would have allowed government agencies to exempt their actions from Endangered Species Act regulations, and would have required federal agents to conduct cost-benefit analyses when considering whether to list a species as endangered. (The legislation failed.) Last June, in his early days as interior secretary, Kempthorne told reporters, "I really believe that we can make improvements to the act itself."

Kempthorne is keeping good on his promise. The proposed draft is littered with language lifted directly from both Kempthorne's 1998 legislation as well as from a contentious bill by former Rep. Richard Pombo, R-Calif. (which was also shot down by Congress). It's "a wish list of regulations that the administration and its industry allies have been talking about for years," says Suckling.

Written in terse, dry legal language, the proposed draft doesn't make for easy reading.

However, the changes, often seemingly subtle, generally serve to strip the Fish and Wildlife Service of the power to do its stated job: to protect wildlife. Some verge on the biologically ridiculous, say critics, while others are a clear concession to industry and conservative Western governors who have long complained that the act degrades the economies of their states by preventing natural-resource extraction.

One change would significantly limit the number of species eligible for endangered status. Currently, if a species is likely to become extinct in "the foreseeable future" -- a species-specific timeframe that can stretch up to 300 years -- it's a candidate for act protections. However, the new rules scale back that timeline to mean either 20 years or 10 generations (the agency can choose which timeline). For certain species with long life spans, such as killer whales, grizzly bears or wolves, two decades isn't even one generation. So even if they might be in danger of extinction, they would not make the endangered species list because they'd be unlikely to die out in two decades.

"It makes absolutely no sense biologically," wrote Hasselman in an e-mail. "One of the Act's weaknesses is that species aren't protected until they're already in trouble and this proposal puts that flaw on steroids."

Perhaps the most significant proposed change gives state governors the opportunity and funding to take over virtually every aspect of the act from the federal government. This includes not only the right to create species-recovery plans and the power to veto the reintroduction of endangered species within state boundaries, but even the authority to determine what plants and animals get protection. For plants and animals in Western states, that's bad news: State politicians throughout the region howled in opposition to the reintroduction of the Mexican gray wolf into Arizona and the Northern Rockies wolf into Yellowstone National Park.

"If states are involved, the act would only get minimally enforced," says Bob Hallock, a recently retired 34-year veteran of the Fish and Wildlife Service who, as an endangered species specialist, worked with state agencies in Idaho, Washington and Montana. "States are, if anything, closer to special economic interests. They're more manipulated. The states have not demonstrated the will or interest in upholding the act. It's why we created a federal law in the first place."

Additional tweaks in the law would have a major impact. For instance, the proposal would narrow the definition of a species' geographic range from the landscape it inhabited historically to the land it currently occupies. Since the main reason most plants and animals head toward extinction is due to limited habitat, the change would strongly hamper the government's ability to protect chunks of land and allow for a healthy recovery in the wild.

The proposal would also allow both ongoing and planned projects by such federal agencies as the Army Corps of Engineers and the Forest Service to go forward, even when scientific evidence indicates that the projects may drive a species to extinction. Under the new regulations, as long as the dam or logging isn't hastening the previous rate of extinction, it's approved. "This makes recovery of species impossible," says Suckling.

Gutting the Endangered Species Act will only thicken the pall that has hung over the Fish and Wildlife Service for the past six years, Hallock says. "They [the Bush
administration] don't want the regulations to be effective. People in the agency are like a bunch of whipped dogs," he says. "I think it's just unacceptable to go around squashing other species; they're of incalculable benefit to us. The optimism we had when this agency started has absolutely been dashed."

3-27-07
Endangered Species Act changes in the works...Janet Wilson and Julie Cart
http://www.latimes.com/news/science/environment/la-na-endangered28mar28,1,7044899.story

Bush administration officials said Tuesday that they were reviewing proposed changes to the way the 34-year-old Endangered Species Act is enforced, a move that critics say would weaken the law in ways that a Republican majority in Congress was unable to do...draft of suggested changes, which was leaked Tuesday, would reduce protection for wildlife habitat and transfer some authority over vulnerable species to states. Acting under orders from Interior Secretary Dirk Kempthorne, who has long fought for changes in the law, U.S. Fish and Wildlife Service Director H. Dale Hall said he had asked his senior field staff to evaluate proposals in the draft by policy advisors in the Departments of Interior and Commerce, which oversee almost 1,300 imperiled species. Hall made his comments after environmental groups and the online journal Salon.com published a draft version of the proposals Tuesday. The draft contains language from Kempthorne's proposed 1998 legislation and from a controversial bill by former Rep. Richard W. Pombo (R-Tracy), both of which died in Congress.

3-27-07
Washington Post
Govt. eyes changes in Species Protection...H. Josef Hebert, AP
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/27/AR2007032701623_pf.html

Details of some of the proposed changes surfaced Tuesday in a number of draft department documents released by environmentalists, who said the changes would amount to a gutting of the federal Endangered Species Act. Department spokesmen said the drafts were still under review and that no decision had been made by Interior Secretary Dirk Kempthorne on whether to proceed. "The focus is how we can do a better job of recovering more species," department spokesman Hugh Vickery said in an interview. He called the documents that have surfaced preliminary and in some cases out of date. Some of the proposed changes are outlined in a 117-page draft regulation and in a half-dozen separate memorandums, some dating back to last summer and others as recent as mid-February. The proposed changes "touch on every key program under the Endangered Species Act. It is a rewrite from top to bottom," said Kieran Suckling of the Center for Biological Diversity, a national environmental group based in Tucson, Ariz. The draft was the subject of a story Tuesday on Salon.com. Vickery said the 117-page document, which includes many of the proposed changes, is old. "It does not represent the latest thinking by the Fish and Wildlife Service," he said. "Recommendations are still being floated." But Daniel Patterson of Public Employees for Environmental Responsibility, which put the documents on its Web site Tuesday, said the memos have been circulated among agencies outside the Interior Department, suggesting that the proposals are in the late stage of consideration.

3-30-07
Stockton Record
GOP launches early attack on McNerney...Hank Shaw
http://recordnet.com/apps/pbcs.dll/article?AID=/20070329/A_NEWS/703290337

National Republicans have begun their attempt to unseat Rep. Jerry McNerney, D-Pleasanton, a full 20 months before Election Day 2008. The Republican National Campaign Committee, which spent tens of thousands of dollars in an unsuccessful effort to save former Tracy Rep. Richard Pombo last fall, has included McNerney in its first round of targets posted on www.therealdemocratstory.com. NRCC will also send about 100,000 e-mails into McNerney's 11th District highlighting their criticism of the freshman Democrat's voting record. McNerney has voted with Nancy Pelosi 100 percent of the time so far this year.

3-31-07
Center for Biological Diversity
Interior Department Official Distorted Agency's Own Science to Avoid Protecting Endangered Species...Press Release...3-29-07

http://www.biologicaldiversity.org/swcbd/press/macdonald-03-29-2007.html
Report from Inspector General Department of Interior Blasts Assistant Secretary for Fish, Wildlife and Parks Julie MacDonald
3-23-07...A copy of the Inspector General’s report is available at http://www.biologicaldiversity.org/swcbd/programs/esa/pdfs/DOI-IG-Report_JM.pdf.

3-31--07
San Francisco Chronicle
Judge tosses new forest rules...Henry K. Lee
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/31/BAGE5OVFUT1.DTL&hw=endangered+species&sn=003&sc=374

A federal judge in San Francisco threw out the Bush administration's new rules Friday for managing the country's 155 national forests, saying the government had failed to consider the environmental effects that could result from the changes...administration also failed to give the public a chance to review the new regulations before they went into effect in 2005, U.S. District Judge Phyllis Hamilton said in a ruling on two consolidated lawsuits filed by environmental groups and the state of California. Hamilton said the government had violated the National Environmental Policy Act and the Endangered Species Act and couldn't institute the new rules until environmental reviews are conducted. More than a dozen environmental groups had filed suit, including Citizens for Better Forestry, Defenders of Wildlife and the Sierra Club.

3-32-07
San Francisco Chronicle
UC faculty to join talks on big BP biofuels deal...Rick DelVecchio
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/31/BAGE5OV6G61.DTL&hw=uc&sn=001&sc=921

UC Berkeley's administration has invited faculty members to join the contract talks on the $500 million BP biofuels deal amid pressure to ensure that campus traditions and values are safeguarded in the partnership. Journalism Professor Bill Drummond, chairman of the campus Academic Senate, said the administration will allow four professors who chair Senate committees -- Calvin Moore, Patrick Kirch, Christopher Kutz and J. Miguel Villas-Boas -- to participate in the negotiations... The university's administration is being sharply challenged by faculty members who fear the BP deal is so big that it threatens to upset the tradition of shared governance on campus between the Academic Senate and the administration. A petition signed by 130 faculty members, including some of the campus' most widely respected academics, calls for the immediate convening of a blue-ribbon committee to look into aspects of the BP deal that impinge on the Academic Senate's mandate. The petitioners argue that decisions on hiring faculty and allocating resources to the BP-funded Energy Biosciences Institute, to be staffed by 50 BP-appointed researchers and 100 from academia, are going forward without proper campus review. A second petition by a different group of faculty members seeks to cancel the BP deal on the grounds that it constitutes the "greenwashing" of the oil company's environmental record through its association with the university. Robert Dudley, a UC Berkeley professor of integrative biology and a member of the Academic Senate's academic freedom committee, said the lack of disclosure of the BP deal's details is "potentially suspicious."...cited a 1998-2003 research deal under which the Swiss biotech firm Novartis provided $25 million in funding to the university's Department of Plant and Microbial Biology. Faculty members were upset that a funding deal that large wasn't discussed universitywide before it was implemented. Ironically, the Novartis controversy prompted Cornell's faculty to develop standards that could be put into action in a similar partnership. Cornell faculty's 26-page document was finished in 2005 after two years of debate...document coined a new term for large-scale research sponsorships: "strategic corporate alliances."

3-30-07
San Francisco Chronicle
UC-Merced hopes to lure large-campus rejects...San Jose Mercury News
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/03/30/state/n125253D42.DTL&hw=uc&sn=009&sc=878

The University of California, Merced has a new strategy to attract students:...The "Shared Experience" program will allow about 1,000 students who narrowly miss admission to UC Berkeley, UCLA, UC Irvine or UC San Diego to attend the Merced campus for two years, and then finish their studies at a more established school. Growth has been slower than expected at UC Merced, where freshman enrollment dropped 38 percent last fall in the school's second year. The Shared Experience program was also used to increase attendance at UC Santa Cruz in the 1980s, when some students were guaranteed subsequent entry to the Berkeley campus.

3-31-07
Los Angeles Times
Southland's dry spell could get worse...Betinna Boxall
http://www.latimes.com/news/local/la-me-dry31mar31,1,7683947

Nature is pulling a triple whammy on Southern California this year. Whether it's the Sierra, the Southland or the Colorado River Basin, every place that provides water to the region is dry. It's a rare and troubling pattern, and if it persists it could thrust the region into what researchers have dubbed the perfect Southern California drought: when nature shortchanges every major branch of the far-flung water network that sustains 18 million people. The mountain snowpack vital to water imports from Northern California is at the lowest level in nearly two decades. The Los Angeles area has received record low rainfall this winter... And the Colorado River system remains in the grip of one of the worst basin droughts in centuries. Thanks to a bountiful Sierra snowpack in the spring of 2006, the state's reservoirs are in good shape. Twice during the 20th century — in the late 1950s and the early 1980s — drought strained all three regions that supply Southern California, said Scripps Institution of Oceanography hydrologist Hugo Hidalgo. UCLA geography professor Glen MacDonald, warned, "if you went into a decade or longer of persistent drought that affected the Sacramento [River Basin], the Los Angeles area and the Colorado, you would end up basically taxing all of the those water storage facilities, from the dams on the Colorado to what we have here, to beyond the breaking point." As a result of this spring's skimpy Sierra snowpack — it's at 46% of the normal statewide average — the State Water Project will reduce deliveries of Northern California water to the central and southern parts of the state, but not dramatically.

Washington Post
Extinct sense...Editorial
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/30/AR2007033001998.html
IT LOOKS LIKE another story of endangered ethics on the Bush administration's environmental staff. Last week the Interior Department's inspector general submitted the results of an investigation of Julie A. MacDonald, the deputy assistant secretary for fish and wildlife and parks, to congressional overseers. According to numerous accounts collected in the inquiry, Ms. MacDonald has terrorized low-level biologists and other employees for years, often yelling and even swearing at them. One official characterized her as an "attack dog." Much of this bullying, the report suggests, was aimed at diluting the scientific conclusions and recommendations of government biologists and at favoring industry and land interests. Ms. MacDonald's subordinates said she has trenchantly resisted both designating new species as endangered and protecting imperiled animals' habitats. She defended her interventions in an interview with the inspector general's staff, saying that she kept Interior's scientists accountable, according to the report. But the evidence available suggests she was at the least too aggressive. H. Dale Hall, director of the Fish and Wildlife Service, recounted a battle he had with Ms. MacDonald over the Southwest willow flycatcher, an endangered bird. claims that Ms. MacDonald insisted on lowering that to 1.8 miles so that the nesting range would not extend into California, where her husband maintained a family ranch. The inspector general noted that she has no formal training in biology. The inspector general's review of Ms. MacDonald's e-mail account also showed that she had close ties to lobbying organizations that have challenged endangered-species listings and that she had "misused her position" to give them information not available to the public on Interior Department policy. Reports of Ms. MacDonald's alleged sins have emerged soon after revelations of other ethical lapses by Bush environmental appointees. J. Steven Griles, the former second in command at Interior, pleaded guilty to charges stemming from the Jack Abramoff scandal. And Sue Ellen Wooldridge, formerly the government's top environmental lawyer, jointly purchased a vacation home with Mr. Griles and a lobbyist for ConocoPhillips. These are troubling incidents. Ms. MacDonald works for an agency tasked with making determinations based on scientific fact, not on her, or her lobbyist friends', inclinations. She appears to have betrayed that vital principle. The inspector general has sent his report to top officials at the Interior Department. They should investigate for themselves the document's troubling descriptions and take action to ensure that Ms. MacDonald and other managers at Interior make policy fit the science, not the other way around.

4-1-07
Sacramento Bee
Canal still best Delta water fix...Dan Walters
http://www.sacbee.com/111/story/147490.html

One of Brown's better initiatives was closing a gap in the water system that had been started under his father, Pat Brown...the "Peripheral Canal" enjoyed support from both environmentalists and municipal and agricultural water agencies... After a highly misleading, farmer-financed campaign, voters rejected the Peripheral Canal in 1982. Had the Peripheral Canal been built as Jerry Brown urged, the fish being chewed up in the pumps would have been alive and more numerous. Had the Peripheral Canal been built, we wouldn't have to worry so much about Delta levees collapsing due to an earthquake or being breached by rising ocean levels from global warming, either of which would threaten water deliveries. But the canal wasn't built. Schwarzenegger described the fish-kill decision as "one more indication of how our system doesn't really work, and that we have to upgrade it. We have to fix our levees. There are a lot of things that need to be done. We need to have more above-the-ground water storage. We have to start thinking about our Delta; it's very, very vulnerable. As I said, one earthquake and one big storm, and it could wipe out this whole system, and 25 million people will suffer because of it." Arnold Schwarzenegger is the first governor since Brown to truly confront the water policy gridlock. Schwarzenegger described the fish-kill decision as "one more indication of how our system doesn't really work, and that we have to upgrade it. We have to fix our levees. There are a lot of things that need to be done. We need to have more above-the-ground water storage. We have to start thinking about our Delta; it's very, very vulnerable. As I said, one earthquake and one big storm, and it could wipe out this whole system, and 25 million people will suffer because of it." He's right.

| »

Merced County sued for reducing Castle Airport noise and safety zone to benefit racetrack project

Submitted: Mar 16, 2007

MERCED (March 16, 2007) -- Two local environmental groups filed suit Thursday in Merced County Superior Court against Merced County, the Board of Supervisors and Riverside Motorsports Park, LLC under provisions in the State Aeronautics Act and the California Environmental Quality Act (CEQA).

San Joaquin Raptor Rescue Center and Protect Our Water challenged the December 12 Board of Supervisors' decision to override the Castle Airport Land Use Commission and reduce the diameter of the noise/safety restricted zone around the airport sufficiently to permit Riverside Motorsports Park to built its facility nearby.

The two local environmental groups petitioned the court for a writ of mandate to set aside the Dec. 12 override on the basis that it violates the Aeronautics Act and CEQA, to make adequate findings of fact, prepare, circulate and consider legally adequate environmental review for the override, and suspend activity that could result in any change of alteration of the physical environment until the override is legally compliant.

The causes of action for the suit are Merced County's abuse of discretion under the Aeronautics Act and CEQA, including:

· Failure to make fact-specific findings required by the Aeronautics Act;

· Failure to set forth findings sufficient to bridge the analytical gap between the raw evidence and the ultimate Board decision to reduce the size of the airport noise/safety zone;

· Failure to analyze the environmental impacts of the override under CEQA;

· Failure to consider the override a project under CEQA;

· Failure to provide any findings as required by CEQA on a project.

"In a nutshell, the Board could not certify the racetrack environmental impact report without reducing the size of the airport's noise/safety zone," said Lydia Miller, president of the Raptor Center.

"We are represented by the skilled and experienced environmental law firm of Don Mooney and Marsha Burch,"Miller added.

The petition is attached.

For further information contact:

Lydia Miller

San Joaquin Raptor Rescue Center

Merced CA 95341

(209) 723-9283

DONALD B. MOONEY

MARSHA BIRCH

Law Offices of Donald B. Mooney

Davis CA 95616

(530) 758-2377
---------------------

The petition:

DONALD B. MOONEY (SBN153721)
MARSHA A. BURCH (SBN 170298)
LAW OFFICES OF DONALD B. MOONEY

Telephone: (530) 758-2377
Facsimile: (530) 758-7169

Attorneys for Petitioners
San Joaquin Raptor Rescue Center
and Protect Our Water

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MERCED

SAN JOAQUIN RAPTOR RESCUE
CENTER; and
PROTECT OUR WATER
Case No.:

Petitioners,
VERIFIED PETITION FOR WRIT OF MANDATE
v. COUNTY OF MERCED; MERCED COUNTY BOARD OF SUPERVISORS; AND DOES 1-10

Respondents.

RIVERSIDE MOTORSPORTS .
PARK, LLC and DOES 11-100

Real Parties in Interest.

Code Code Civ. Proc. § 1094.5; State Aeronautics Act, Pub. Res. Code
§§ 21676.5 and 21670; and CEQA, Pub. Res. Code § 21000, et seq.

INTRODUCTION

1. By this action, Petitioners San Joaquin Raptor Rescue Center and Protect Our Water (“Petitioners”) challenge the action on December 12, 2007, by the County of Merced and the Merced County Board of Supervisors (“County” or “Respondents”) overruling a finding of inconsistency by the Merced County Airport Land Use Commission (“ALUC”) between the Merced County Airport Land Use Plan and the Riverside Motorsports Park Project (the “Override”). Petitioners allege that these actions violate the Public Utilities Code, specifically the State Aeronautics Act (Public Utilities Code §§ 21670 and 21676.5) (the “Act”). Petitioners also allege violation of the California Environmental Quality Act (“CEQA”) Public Resources Code section 21000 et seq., as a result of Respondents’ failure to conduct environmental review of the discretionary Override decision. Petitioners seek a determination from this Court that Respondents’ action in overriding the inconsistency determination of the ALUC is invalid and void as contrary to law and/or an abuse of discretion.
PARTIES
2. Petitioner San Joaquin Raptor Rescue Center is a non-profit group that works for preserving wildlife habitats and the environment in general in the San Joaquin Valley and Merced County area. To that end, it is involved in efforts to protect the resources of the Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. The Center also is committed to public education regarding these various issues and ensuring governmental compliance with the law of this state. The Center is composed of persons whose economic, personal, aesthetic, and property interests will be severely injured if the adoption of the project is not set aside pending full compliance with CEQA and all other environmental laws. Center members utilize and enjoy the County's and State's natural resources. The Center brings this petition on behalf of all others similarly situated who are too numerous to be named and brought before this court as petitioners. As a group composed of residents and property owners generally within the San Joaquin Valley and specifically in Merced County, the Center is within the class of persons beneficially interested in, and aggrieved by, the acts of respondents as alleged below. Members of the Center participated in the administrative processes herein, and exhausted its remedies. Accordingly, the Center has standing to sue.
3. SJRRC and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, safety and land use issues. SJRRC is affected by Respondents’ failure to comply with the Act.
4. Petitioner Protect Our Water is an unincorporated association formed in 1998 for the purpose of increasing the awareness, appreciation, and preservation of the environmental resources within the Central Valley region of central California, as well as within other areas of the State of California. POW aims to protect natural resources and the environment and to uphold the integrity of environmental and land use planning and review processes. POW’s membership includes residents and property owners within Merced County and the San Joaquin Valley in general, and as such is within the class of persons beneficially interested in, and aggrieved by, the acts of Respondents as alleged below. POW participated in the administrative processes herein, has exhausted its remedies, and has standing to sue.
5. POW and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, safety and appropriate land use planning. POW is affected by Respondents’ failure to comply with the Act.
6. Respondent Merced County is a political subdivision of the State of California and a body corporate and politic exercising local government power. Merced County is responsible for compliance with the Act.
7. Respondent Merced County Board of Supervisors is a legislative body duly authorized under the California Constitution and the laws of the State of California to act on behalf of the County of Merced. Respondent Merced County Board of Supervisors are responsible for regulating and controlling land use within the County including, but not limited to, compliance with California land use laws, including the Act.
8. Petitioners are unaware of the true names and capacities of Respondents identified as Does 1-10. Petitioners are informed and believe, and on that basis allege, that Respondents Does 1-10, inclusive, are individuals, entities or agencies with material interests affected by the Override. When the true identities and capacities of these Respondents have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to insert such identities and capacities.
9. Real Party In Interest Riverside Motorsports Park, LLC is a California Limited Liability Company and conducting business in the state of California. RMP is the applicant for and beneficiary of the County’s general plan amendments, zoning changes, and certification of the Riverside Motorsports Project (“Project”), the subject of the ALUC’s inconsistency determination, which was overridden by Respondents.
10. Petitioners are currently unaware of the true names and capacities of Does 11 through 100, inclusive and therefore sue such unnamed Real Parties in Interest by their fictitious names. Petitioners are informed and believe and thereon allege, that fictitiously named Real Parties in Interest have an interest in the subject of this Petition. When the true identities and capacities of Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to include such identities and capacities.
BACKGROUND FACTS
9. The RMP Project is proposed for construction on 1,187 acres of agricultural land located east of the City of Atwater in the County of Merced. Castle Airport (formerly Castle Air Force Base) and the Castle Specific Urban Development Plan area are located immediately southwest of the Project site.
11. The RMP Project is proposed to include the construction of a regional motorsports recreation, entertainment and commercial business facility.
12. The Notice of Preparation (“NOP”) of the environmental document for the Project was originally circulated to the Governor’s Office of Planning and Research on July 22, 2003. Following release of the NOP, revisions to the Project description were identified by RMP that required the NOP’s recirculation. The NOP was recirculated on March 14, 2005 for a 30-day comment period.
13. On October 1, 2003, the ALUC made a determination that the Project is inconsistent with the Merced County Airport Land Use Plan.
14. On December 12, 2006, the Merced County Board of Supervisors, relying upon Public Utilities Code section 21676(b), overrode the ALUC’s inconsistency determination, approving Resolution 2006-189. Resolution 2006-189 is attached hereto as Exhibit A and made a part hereof by this reference.
15. Resolution 2006-189 includes conclusory findings regarding noise impacts related to the Override, but the Resolution does not include any specific findings of fact related to safety. The findings do not include any reference to environmental review for the Override, nor do they include findings required by CEQA.
16. On December 12, 2006, the same date Resolution 2006-189 was adopted by Respondents, Respondents certified the Final Environmental Impact Report for the RMP Project.
17. On December 19, 2006, the Board of Supervisors approved the General Plan Amendment to expand the existing Castle Specific Urban Development Plan boundaries to include the Project site; approve the amendment to the Circulation Chapter of the General Plan; approve the amendment to the Merced County Zoning Code to change the existing zoning designations on the Project site from General Agriculture (A-1) and Exclusive Agriculture (A-2) to Planned Development (PD); remove the Project site from the Agricultural Preserve Area; and approve the Master Plan.
JURISDICTION AND VENUE
18. This Court has jurisdiction over the alleged violations of the Act contained in this Petition pursuant to Code of Civil Procedure section 1904.5. With respect to the CEQA cause of action, this Court has jurisdiction over this action pursuant to sections 1085 and 187 of the California Code of Civil Procedure and section 21168.5 of the California Public Resources Code. Petitioners believe that this action is properly brought as a petition for writ of mandate under those provisions. However, should this Court conclude that this action cannot be properly be brought as a petition for a writ of mandate, petitioners request that this Petition be construed as a petition for writ of administrative mandamus (for which jurisdiction would lie pursuant to Code of Civil Procedure sections 1094.5 and 187, and Public Resources Code section 21168), or for other appropriate extraordinary relief.
19. Venue for this action properly lies in the Superior Court for the State of California in and for the County of Merced pursuant to section 394 of the Code of Civil Procedure.

EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND INADEQUACY OF REMEDY

20. Petitioners have performed any and all conditions precedent to filing the instant action and have exhausted any and all available administrative remedies to the extent required by law. Petitioners timely submitted written comments on the Override.
21. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law unless this Court grants the requested writ of mandate to require Respondents to set aside their Override. In the absence of such remedy, Respondents’ approvals will remain in effect in violation of State law.
22. This action has been brought within 90 days of the Override as required by Code of Civil Procedure section 1094.6.
STANDING
23. Petitioners have standing to assert the claims raised in this Petition because Petitioners and their members’ environmental interests are directly and adversely affected by the County’s Override.

ARBITRARY AND CAPRICIOUS ACTIONS
24. Petitioners bring this action on the basis, among others, of Government Code section 800, which awards Petitioners’ attorneys’ fees in actions to overturn agency decisions that are arbitrary and capricious, such as the decisions here in question.
FIRST CAUSE OF ACTION
(Abuse of Discretion)
Violations the State Aeronautics Act
Public Utilities Code section 21001, et seq.
25. Petitioners reallege and incorporate by reference Paragraphs 1 through 24, inclusive, of this Petition, as if fully set forth below.
26. Respondents committed a prejudicial abuse of discretion and failed to proceed in a manner required by law by failing to make fact-specific findings as required by the Act, and failed to set forth findings sufficient to bridge the analytical gap between the raw evidence and the ultimate decision.
27. Respondents violated the Act in failing to make findings sufficient under Public Utilities Code section 21676(b) and as required under Code of Civil Procedure section 1094.5.
28. Respondent’s failure to comply with the requirements of the Act renders the Override inadequate as a matter of law and requires that Respondent’s decision be set aside.

SECOND CAUSE OF ACTION
(Abuse of Discretion)
Violation of CEQA, Public Resources Code, § 21000 et seq.

29. Petitioner realleges and incorporates herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 28 of this petition and further allege as follows:
30. Respondents have abused their discretion and failed to act in the manner required under CEQA with respect to the Override because they have failed to analyze its environmental impacts, and failed to make any determination at all with respect to the applicability of CEQA to the Override determination.
31. CEQA applies to “discretionary projects proposed to be carried out or approved by a public agency.” (Pub. Resources Code § 21080(a).) Approval of the Override was a “Project” under CEQA because the Override is an activity carried out, supported by, or authorized by a public agency, “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code § 21065; Guidelines § 15378(a).)
32. Respondents made no CEQA findings related to the Override. Accordingly, Respondents’ Override should be set aside.
PRAYER FOR RELIEF
WHEREFORE, Petitioners pray for judgment as follows:
1. That this Court issue a peremptory writ of mandate ordering the County to:
(a) vacate and set aside its December 12, 2006, Override on the ground that it violates the State Aeronautics Act, Public Utilities Code section 21001 et. seq.;
(b) prepare adequate findings of fact, including findings bridging the analytical gap between the raw evidence and the ultimate decision;
(c) vacate and set aside its December 12, 2006, Override on the ground that it violates the California Environmental Quality Act, Public Resources Code section 21000 et seq.;
(d) prepare, circulate and consider legally adequate environmental review for the Override;
(e) suspend all activity that could result in any change or alteration to the physical environment until Respondents have taken such actions as may be necessary to bring its determination, findings or decision regarding the Override into compliance with the Act and CEQA;
2. For Petitioner’s costs associated with this action;
3. For an award of reasonable attorneys’ fees pursuant to Code of Civil Procedure section 1021.5; and
4. For such other and further relief as the Court may deem just and proper.

Respectfully submitted,

LAW OFFICES OF DONALD B. MOONEY

Dated: March ___, 2007

By Donald B. Mooney
Attorney for Petitioners
San Joaquin Raptor Rescue Center, and
Protect Our Water

| »


To manage site Login