CA Appeals Court Upholds Wildlife Corridor Overlays Against SMARA and CEQA Challenges

This post was authored by Gabriella Mickel, Pace University Elisabeth S. Haub School of Law

The California Construction and Industrial Materials Association and the Ventura County Coalition of Labor, Agriculture, and Business (collectively referred to as “Ordinance Opponents”) petitioned for writs of mandate to require the County of Ventura to vacate an ordinance. The ordinance aimed to create overlay zones to protect wildlife migration corridors in rural portions of Ventura County​.

The Ordinance Opponents asserted that the ordinance violated the Surface Mining and Reclamation Act (SMRA) and the California Environmental Quality Act (CEQA). The County opposed the petitions on the grounds that 1) SMARA does not apply; 2) if SMARA applies, the Ordinance Opponents have failed to show prejudice from the failure to comply; and 3) the ordinance is exempt from CEQA.

First, the court held, as a matter of first impression, that the county was not “permitting a use” within the meaning of SMARA when it adopted ordinance creating overlay zones to protect wildlife migration corridors. The Ordinance Opponents referenced a statutory provision (§ 2762, subd. (d)(1)) which mandates that before permitting a use that might threaten mineral extraction in designated areas, a lead agency must prepare a statement of reasons and forward it to relevant authorities. The court’s interpretation of “permitting a use” involved de novo review, focusing on the ordinary meaning of the statute’s words. The trial court had broadly interpreted this phrase to include changes in permitting requirements, concluding the Project fell under SMARA’s purview. However, the appellate court disagreed, presuming the Legislature would have explicitly included changes in permitting requirements if that was the intent.

Second, the court evaluated the CEQA arguments. The first step, under a CEQA analysis, is determining if an activity is a “project,” and the ordinance was undisputedly a CEQA project. If an activity is a project, the next step is to determine if it is exempt from CEQA. Exemptions from CEQA include “categorical exemptions” and a “common sense” exemption for activities with no significant environmental impact. If a project is exempt, no further environmental review is required. The County determined the Project was exempt from CEQA, relying on the “common sense” exemption and Classes 7 and 8 categorical exemptions. Class 7 involves actions to maintain or enhance natural resources with environmental protection processes, while Class 8 pertains to actions to protect the environment involving similar processes. The court held that substantial evidence, including studies and expert preservations on the need to preserve wildlife corridors, supported the county’s finding that the project fell within categorical exemptions from CEQA.

To challenge an exemption, opponents must show a reasonable possibility of a significant environmental effect due to unusual circumstances. The Ordinance Opponents claimed that the Project’s location and size distinguished it from other projects in its exempt class. They pointed out that the Project overlays 10,000 acres of classified mineral resources. The court said the Ordinance Opponents cited no evidence that other projects in Classes 7 and 8 do not overlay similar resources and pointed to other CEQA “projects” that covered entire counties. The court held that the Ordinance Opponents failed to carry the burden of showing unusual circumstances in order for exception to the categorical CEQA exemptions to apply and that there was no substantial evidence to support a fair argument that there was a reasonable possibility that the project would have an adverse effect on the environment.

California Construction and Industrial Materials Association v County of Ventura, 2023 WL 7478994 (CA App. 11/13/2023)