Opinion
A162602
09-16-2022
HUMBOLDT ALLIANCE FOR RESPONSIBLE PLANNING, Plaintiff and Appellant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. CV190327)
WISEMAN, J. [*]
Pursuant to the Coastal Zone Management Act of 1972 (16 U.S.C. § 1451 et seq.; CZMA), the United States Bureau of Indian Affairs (BIA) determined that a proposed project on tribal land owned in fee by the Cher-Ae Heights Indian Community of Trinidad Rancheria (Trinidad Rancheria), which would involve transferring the real property into federal trust status, was consistent with the California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.; Coastal Act). The California Coastal Commission (Commission) agreed. Humboldt Alliance for Responsible Planning (HARP) challenged the Commission's ruling by filing a petition in superior court for a writ of administrative mandamus (Code Civ. Proc., § 1094.5). The trial court denied the petition, concluding that the Commission's decision was supported by substantial evidence. In this appeal, HARP urges that (1) the Commission's decision must be reviewed for the weight of the evidence rather than substantial evidence and (2) the transfer of coastal tribal land into federal trust status improperly limited the Commission's ability to enforce Coastal Act policies in the area, potentially threatening public access to a beach. We will affirm the judgment.
HARP also contends the trial court erred by finding that the BIA was immune from suit and argues that the failure to join the BIA as an indispensable party is not a basis for affirming the judgment. Because we affirm the judgment on other grounds, we need not address these issues.
I. FACTS AND PROCEDURAL HISTORY
A. Applicable Statutes
For context, we begin with a brief review of statutes germane to the proceedings.
1. Indian Reorganization Act of 1934
Section 5 of the Indian Reorganization Act of 1934 authorizes the United States Secretary of the Interior to acquire lands in the name of the United States in trust for an Indian tribe. (25 U.S.C. § 5108.) A transfer of this sort is known as "fee to trust" and is intended to promote tribal selfdetermination. Here, as part of a project it proposed, Trinidad Rancheria requested that certain of its land, which it held in fee, be transferred into the federal trust.
2. The CZMA
The CZMA declares a national policy to "preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations." (16 U.S.C. § 1452(1).) One of its purposes is to "encourage coordination and cooperation" among federal and state agencies in their "regulation of land use practices affecting" the coast. (16 U.S.C. § 1452(5).)
If a federal agency plans to commence an activity with foreseeable coastal effects, the agency must determine whether the activity "will be undertaken in a manner" fully consistent "with the enforceable policies of approved management programs" of the relevant state, unless prohibited by applicable law. (15 C.F.R. §§ 930.36(a), 930.32(a)(1) (2021); see 16 U.S.C. § 1456(c)(1)(A).)
Where, as here, the federal agency finds that the proposed activity is consistent with those policies, it must submit its determination for review by the applicable state agency, which may concur or object. (15 C.F.R. §§ 930.4(a), 930.34, 930.41(a) (2021).)
3. The Coastal Act and the Commission
The Commission is the state agency responsible for reviewing matters invoking the CZMA in California. (Pub. Resources Code, §§ 30008, 30300, 30330.) It implements the provisions of the Coastal Act, which is the state's coastal zone management program. (Pub. Resources Code, § 30008.) The Coastal Act proclaims that the coastal zone is a natural resource of "vital and enduring interest to all the people" and that the "permanent protection of the state's natural and scenic resources is a paramount concern to present and future residents of the state and nation." (Pub. Resources Code, § 30001, subds. (a), (b).)
The coastal zone runs along California's coastline from Oregon to Mexico and includes coastal waters and adjacent shorelands, extending three miles seaward. (California v. Norton (9th Cir. 2002) 311 F.3d 1162, 1167.) The coastal zone does not, however, include lands that the federal government holds in trust. (16 U.S.C. § 1453(1).)
As relevant here, the enforceable policies of the Coastal Act are found in Public Resources Code sections 30200-30265.5. (Pub. Resources Code, § 30200, subd. (a); 16 U.S.C. § 1453; 15 C.F.R. § 930 (2021).) They pertain to public access (Pub. Resources Code, §§ 30210-30212) as well as to recreation (id., § 30221), upland areas (id., § 30223), marine resources (id., § 30230), biological productivity (id., § 30231), archeological and paleontological resources (id., § 30244), and scenic and visual resources (id., § 30251). The Coastal Act is broadly construed to accomplish its purposes. (Id., § 30009; Surfrider Foundation v. California Coastal Com. (1994) 26 Cal.App.4th 151, 158.)
B. The Tribal Property and Administrative Proceedings
The property at issue consists of approximately 10 acres between Trinidad Bay and the first public road, within the California coastal zone and the city limits of Trinidad in Humboldt County. Owned in fee by Trinidad Rancheria, the property offers public access and other support functions at the pier, Trinidad Beach State Park, Launcher Beach, and a restaurant.
1. The Tribe's Project and Fee to Trust Proposal
In connection with a project to construct a 1,300-square-foot visitor center for the public and undertake stormwater improvements, Trinidad Rancheria applied to the BIA to have the property transferred into federal trust status with record title in the name of the United States and the tribe holding beneficial interest. According to HARP, upon the transfer of the property into federal trust status, the city, county and state governments will lose regulatory jurisdiction over the property and the Commission will retain only "a small sliver of jurisdiction" that is "subject to several preconditions which the Tribe can easily avoid." (See 16 U.S.C. § 1456; 15 C.F.R. § 923.50 et seq. (2021).)
2. BIA Determination
In December 2018, the BIA notified the Commission that it had determined under the CZMA that Trinidad Rancheria's project was fully consistent with all relevant policies of the Coastal Act, including public access. In particular, the BIA found that the tribe's commitment to maintain public access to the pier and beach areas through a tribal ordinance and to coordinate any future changes in public access with Commission staff would protect public recreational uses at the site.
3. Commission Concurrence
The Commission held a hearing on the BIA's consistency determination on March 7, 2019. At the conclusion of the hearing, the Commission voted to concur in the BIA's consistency determination, finding that the project was in line with applicable policies of the Coastal Act, including public access.
C. HARP's Petition for Writ of Administrative Mandamus
HARP filed a petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5 (section 1094.5), challenging the Commission's concurrence in the BIA's approval. HARP did not allege that the tribe's proposed improvements themselves would violate any policy but that the tribe's commitments to public access were inadequate and the fee to trust transfer would eliminate the Commission's ability to protect public access.
After a hearing, the court denied the petition in January 2021, concluding that the Commission's decision was supported by substantial evidence. Judgment was entered, and this appeal followed.
II. DISCUSSION
HARP contends the Commission's decision should be reviewed under the independent judgment standard rather than for substantial evidence. It also contends the evidence was insufficient to support the Commission's decision. Neither contention has merit.
A. Standard for Reviewing Commission Decisions
A Commission decision may be challenged by a petition filed under Code of Civil Procedure section 1094.5. (Pub. Resources Code, § 30801.) Permissible inquiries include whether there was any "prejudicial abuse of discretion," which can arise where, e.g., the "order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
Where, as here, it is claimed that the Commission's findings are not supported by the evidence, the trial court must take one of two approaches in reviewing the administrative decision: (1) "in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence"; (2) "i[n] all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c), italics added.)
A trial court is authorized to exercise its independent judgment-and therefore obliged to determine whether the weight of the evidence supports the administrative decision-when the administrative decision substantially affects a vested, fundamental right. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Sierra Club v. California Coastal Zone Conservation Com. (1976) 58 Cal.App.3d 149, 154 (Sierra Club).) On appeal, the appellate court decides if the trial court's findings are supported by substantial evidence (although legal issues, such as statutory interpretation, are reviewed de novo). (LaGrone v. City of Oakland (2011) 202 Cal.App.4th 932, 940-941.)
If the administrative decision does not substantially affect a fundamental vested right, the trial court does not exercise its independent judgment but, instead, reviews the administrative record to determine if the agency's findings were supported by substantial evidence (or if there were errors of law). (Bixby v. Pierno, supra, 4 Cal.3d at p. 144; Sierra Club, supra, 58 Cal.App.3d at p. 154.) On appeal, the appellate court applies the same standard of review as the trial court, determining whether the agency's decision was supported by substantial evidence. (Greene v. California Coastal Com. (2019) 40 Cal.App.5th 1227, 1234-1235.)
Here, the trial court's order indicates that it reviewed the Commission's decision for substantial evidence. The court did not make its own findings of fact or mention the "weight of the evidence" but, instead, stated: "The Court finds that the decision of Respondent Commission is supported by substantial evidence and can find no bases upon which to grant Petitioner's request to command Respondent to reconsider said decision." (Italics added.)
HARP contends the Commission's decision is subject to independent judgment review because it substantially affects a fundamental vested right of the public to access Launcher Beach. To the extent HARP argues that this court should determine whether the Commission's decision was supported by the weight of the evidence, we reject the contention outright because that is not one of the options for appellate review from a section 1094.5 order. We do examine, however, whether the trial court should have reviewed the decision for the weight of the evidence.
HARP cites no legal authority holding that it (or the public) has a fundamental vested right to access Launcher Beach. Instead, HARP argues that public access to beaches is"' "fundamental" '" under Sierra Club (a case we address post) and that the right is" 'vested'" because it is" 'already possessed'" or" 'legitimately acquired.'" (E.g., Whaler's Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240, 252 ["in the area of licensing and permit applicants and recipients," a right that is" 'vested'" and" 'fundamental'" must be" 'preexisting,'" and the ultimate question is" 'whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgment by a body lacking judicial power'" (italics omitted)].) In particular, HARP insists the public's right to access the beach is vested based on the California Constitution and the public trust doctrine.
As to the California Constitution, article X, section 4 reads: "No individual, partnership, or corporation claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof." (Italics added.)
HARP's reliance on this constitutional provision is unavailing. HARP does not identify anyone "exclud[ing]," "destroy[ing]," or "obstruct[ing]" a right of way to navigable water. (Cal. Const., art. X, § 4.) Simply put, there is no evidence that Trinidad Rancheria is limiting public access, so article X, section 4 does not apply.
Nor does the public trust doctrine assist HARP. With origins in Roman law and English common law, the essential idea of the public trust doctrine is that the government holds and protects certain natural resources, including navigable waterways, in trust for the public benefit. (See Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521; National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441; Illinois Central Railroad v. Illinois (1892) 146 U.S. 387, 452, 456.) Upon its admission to the Union, California received title to its tidelands, submerged lands, and lands underlying inland navigable waters as trustee for the benefit of the public. (People v. California Fish Co. (1913) 166 Cal. 576, 584 (California Fish); Carstens v. California Coastal Com. (1986) 182 Cal.App.3d 277, 288 (Carstens).) Since then, courts have ruled that the state is obligated to hold certain natural resources in trust for current and future generations, precluding the state from alienating those resources into private ownership and requiring the state to protect the long-term preservation of those resources for the public benefit. (National Audubon Society, supra, 33 Cal.3d at pp. 440-441; see Surfrider Foundation v. Martins Beach 1, LLC (2017) 14 Cal.App.5th 238, 249-251.)
HARP argues that the transfer by which the tribe originally received title to the property from the state was necessarily subject to the public's right of access to the shoreline. (See California Fish, supra, 166 Cal. at p. 584.) This right, HARP urges, is fundamental and vested.
The public trust doctrine, however, does not vest in the public an unfettered right to access navigable waters. (Carstens, supra, 182 Cal.App.3d at p. 288.) Similarly, provisions of the Coastal Act demonstrate legislative recognition of the need to balance competing interests in the effort to preserve the coastal zone, including" 'taking into account the social and economic needs of the people of the state.'" (Carstens, at p. 290, quoting Pub. Resources Code, § 30001.5, subd. (b), italics omitted.) Public Resources Code section 30210 alludes to the public trust doctrine in its reference to article X, section 4 of the California Constitution, but it recognizes that "maximum access" is to be provided "consistent with" public safety and private property interests. Public Resources Code section 30214 empowers the state to impose reasonable time, place, and manner restrictions on access. Limitations on public access by one means may be permissible where other means of access exist. (People v. Deacon (1978) 87 Cal.App.3d Supp. 29, 34.)
Moreover, even though the public trust doctrine has been around for centuries, HARP fails to cite a single case holding that the doctrine has granted the public a fundamental vested right for purposes of heightened review under section 1094.5. To the contrary, the idea was refuted over 40 years ago in Sierra Club, supra, 58 Cal.App.3d 149.
In Sierra Club, the California Coastal Zone Conservation Commission determined that part of a proposed development within the coastal zone was exempt from coastal permit requirements. (Sierra Club, supra, 58 Cal.App.3d at p. 153.) The Sierra Club challenged the determination in the trial court, which denied relief, and the Sierra Club appealed, contending the court erred by reviewing the commission's action for substantial evidence rather than by applying its independent judgment. Similar to HARP's argument here, the Sierra Club argued that the policy statement in the California Coastal Zone Conservation Act (former Pub. Resources Code, § 27000 et seq.)-that the permanent protection of coastal zone resources is a paramount concern to present and future residents-established a fundamental vested right in all the members of the public that the coastal zone would be preserved in its present state. (Sierra Club, at pp. 153-154.)
The Court of Appeal disagreed. Acknowledging that the public's interest in the preservation of the coastal zone is fundamental, the court ruled that the act did "not establish any present possessory interest of the people of the State of California in property lying within the coastal zone." (Sierra Club, supra, 58 Cal.App.3d at p. 155.) "Although such possessory interest may be established over at least part of the coastal zone as a result of the planning function established by the act (see [former Pub. Resources Code,] §§ 27300 et seq., 27320), the only actual control over the coastal zone which has been vested in the public by the Act has been by way of the permitgranting function of the regional and state Commissions within the coastal zone 'permit area.' ([former Pub. Resources Code,] §§ 27104, 27400 et seq., 27420 et seq.) If the public's rights in the coastal zone were presently vested, the result would have constituted a taking of property from all landholders within the coastal zone. [Citations.] Appellant [Sierra Club], as part of the public, has no vested right in the coastal zone." (Sierra Club, at p. 155, italics added.) Neither does HARP.
The Commission also points out that public and private easements for access are nonpossessory interests. (See Kazi v. State Farm Fire and Casualty Co. (2001) 24 Cal.4th 871, 881 [insurers had no duty to defend landowner in a lawsuit asserting interference with adjoining landowner's implied easement to access the land, which is an intangible property right]; see also Carstens, supra, 182 Cal.App.3d at p. 287 [easement is a nonpossessory interest in another's land that gives its owner the right to use the property].)
Indeed, courts routinely apply the substantial evidence standard of review when reviewing a Commission decision that substantially affects public access to the shoreline. (See, e.g., Greene v. California Coastal Com., supra, 40 Cal.App.5th at pp. 1234-1235 [under Code Civ. Proc., § 1094.5, Commission findings as to impacts of a duplex remodel on public access to a beach were reviewable by the trial court and appellate court for substantial evidence]; San Diego Unified Port Dist. v. California Coastal Com. (2018) 27 Cal.App.5th 1111, 1143 ["The trial court in initially reviewing Commission's decision was required to presume it was supported by substantial evidence unless District or Sunroad showed otherwise"]; San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 595-596 [Commission public access findings regarding convention center and access to shoreline were supported by substantial evidence].)
The cases on which HARP relies, on the other hand, are distinguishable. None of them involved an effort by the public to use the public trust doctrine as a preexisting right to require public access to a beach. The cases held that private parties' title to property was subject to the public trust doctrine, but they did not hold that the public trust doctrine created in the public a vested right for purposes of section 1094.5 review. (California Fish, supra, 166 Cal. at pp. 584, 598-599 [private parties' title to tidelands property was not free of public trust]; Berkeley v. Superior Court, supra, 26 Cal.3d at pp. 521-523, 534 [plaintiff did not own tidelands free of any trust on behalf of the public because the legislation by which it obtained title did not intend to extinguish public trust as to those lands]; National Audubon Society v. Superior Court, supra, 33 Cal.3d at p. 441 [city water department's right to divert water from streams feeding a lake was subject to the public trust doctrine, because public trust rights in the lake had always existed]; Whaler's Village Club v. California Coastal Com., supra, 173 Cal.App.3d at pp. 252-254 [substantial evidence review applied because private party had no fundamental vested right (without a permit) to construct a seawall in a coastal area, an area of public trust, because the right was neither already possessed nor legitimately acquired in that his use of the property was subject to reasonable restraints to avoid societal detriment]; Illinois Central Railroad v. Illinois, supra, 146 U.S. at pp. 452, 456 [legislature could not irrevocably deprive the state of its ownership of the submerged lands in Chicago's harbor by granting rights to a private railroad corporation].)
Because HARP failed to establish that the Commission's decision involved or substantially affected a fundamental vested right, the trial court correctly reviewed the Commission's decision for substantial evidence, and we review the trial court's ruling by also determining if substantial evidence supported the Commission's decision. (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 817.)
B. Substantial Evidence Supported the Commission's Decision
The Commission's task under the CZMA was to decide whether to concur in the BIA's assessment that the tribe's project would be consistent with the public access policies found in Public Resources Code sections 30210-30214. Section 30210 states: "In carrying out the requirements of Section 4 of Article X of the California Constitution, maximum access . . . and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse." Section 30211 decrees that the development "shall not interfere with the public's right of access to the sea ...." (Italics added.) Section 30212 requires public access from the nearest public roadway to the shoreline and along the coast except in specified circumstances. Section 30214, on the other hand, states that public access policies "shall be implemented in a manner that takes into account the need to regulate the time, place, and manner of public access depending on the facts and circumstances in each case" and that "[i]t is the intent of the Legislature that the public access policies of this article be carried out in a reasonable manner that considers the equities and that balances the rights of the individual property owner with the public's constitutional right of access pursuant to Section 4 of Article X of the California Constitution." (Pub. Resources Code, § 30214, subds. (a), (b).)
The Commission found the proposed project, including the new visitor center and stormwater improvements and the fee to trust transfer, were consistent with these public access policies. In determining whether substantial evidence supports this conclusion, several long-standing principles apply. The burden is on HARP, as the petitioner and appellant, to show the evidence was inadequate. (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1341; Ocean Harbor House Homeowners Assn. v. California Coastal Com. (2008) 163 Cal.App.4th 215, 227.) The Commission is the sole judge of the credibility of witnesses. (Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-971.) Technical expertise best positions the Commission to make decisions on project applications. (Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 967.) The Commission is also best positioned to reach decisions aligned with the relevant policy goals set out by statute. (San Diego Unified Port Dist. v. California Coastal Com., supra, 27 Cal.App.5th at p. 1130; City of Dana Point v. California Coastal Com. (2013) 217 Cal.App.4th 170, 186.) A court cannot disregard or overturn a finding of fact simply because it considers a contrary finding more reasonable. (Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 94.)
1. Substantial Evidence
Substantial evidence supported the Commission's determination. The tribe's project did not entail any reduction in public access to Launcher Beach. Consistent with Public Resources Code section 30211, the development did not "interfere with the public's right of access to the sea ...." Consistent with section 30212, the development allowed for public access from the nearest public roadway to the shoreline and along the coast. There was nothing in the project stating that public access to Launcher Beach would be removed or curtailed.
To the contrary, the Commission noted the BIA's assessment of the project's consistency with Coastal Act public access policies, as follows: "None of these [proposed] activities would result in an increase in the number of structures, block roads or trails, develop previously undeveloped lands, reduce current recreational access levels, or change any existing access postings." (Italics omitted.) The BIA concluded that" 'the Tribe would maintain public access to the open space, allowing continued public access to beaches. Accordingly, there would be no change to public access to beaches....'" (Italics added.)
Moreover, Trinidad Rancheria affirmatively represented that it would continue to maintain public access. The Commission explained: "The subject property supports activities that are integral to the operation and character of the harbor, such as by providing public access and other support functions to the existing pier, Trinidad Beach State Park, Trinidad Head, Launcher Beach, and the existing restaurant. According to the BIA consistency determination, approximately half of the area of the subject property is currently open space and 'would be preserved as open space and the Tribe would maintain public access to the open space.' The Tribe has expressed its intent to adopt a Tribal Resolution recognizing the importance of the existing uses, including open space and public access, in the subject property and expressing its commitment to maintaining this open space and public access. In addition, the BIA has agreed to assure that the Tribe adopts a Tribal Ordinance that commits to coordinating any future, currently unanticipated, development proposals or changes in public access with the Commission staff.
The Trinidad Rancheria also has agreed to this commitment, and the BIA will incorporate this agreement into its final decision in its NEPA process. The goal of this coordination will be to assure that with such future activities and or changes to public access, the project will remain consistent with the public access and recreation policies of the Coastal Act." (Italics added.)
As further indication of Trinidad Rancheria's commitment to maintain public access, the Commission noted the tribe's letter of March 1, 2019, in which it "expressed its commitment to agree to the condition included in the February 22, 2019 staff report to 'coordinate any future, currently unanticipated, development proposals or changes to public access ....'" The letter reiterated the tribe's commitment to public access, citing the tribe's "history with the properties it has owned since purchasing them in 2000 ...."
In this regard, the Commission noted, Trinidad Rancheria had a history of protecting public access to the site. In 2000, the tribe granted to the City of Trinidad an easement allowing the public to access the pier by foot for recreational purposes. A tidelands lease between the tribe and the city also provided for public access to the pier. The tribe had entered into an agreement with the State Coastal Conservancy guaranteeing pier access to the public until 2032 as a condition of a $500,000 grant. The tribe placed the pier on the National Tribal Transportation Facility Inventory, requiring it to remain open and available for public use except for temporary restrictions for public health or safety reasons under applicable federal regulations. (25 CFR § 170.114 (2021).) In 2011, the tribe completed a" 'Comprehensive Community-Based Plan'" for its land holdings, which included a commitment regarding recreational boat access at Launcher Beach.
The Commission did recognize that "a fee-to-trust action" reduces the Commission's enforcement authority over the property. For example, the Coastal Act permitting process would no longer occur. And while the Commission would retain "federal CZMA authority to perform future federal consistency reviews," the reviews would be triggered only if an activity needed a federal permit or funding or was carried out by a federal agency. Nonetheless, the Commission could invoke the "re-opener" provisions of the federal regulations if there were "significant changes to the proposed actions described in the BIA's consistency determination ...." (15 CFR §§ 930.45, 930.46 (2021).) "For example, if the staff became aware of a proposed action that was not described in the BIA's consistency determination, and there appeared to be a potential effect on coastal resources or public access, staff could bring the matter back to the Commission for a public hearing on the question of whether the project is likely to have an effect on coastal resources that is substantially different from what was originally described and anticipated and, if so, whether the project is no longer consistent with the California Coastal Management Program."
If a project has been determined to be consistent with the state's management program and a state agency later determines that an activity "is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent" with the enforceable policies of the management program, the state agency may request that the federal agency take remedial action. (15 C.F.R. § 930.45(b)(1) (2021).) If the federal agency does not take remedial action or the remedial action does not satisfy the state agency, either party may request mediation. (15 C.F.R. § 930.45(c) (2021); see 15 C.F.R. § 930.46(a) (2021) [for reviewed activities that have not yet begun, the regulations contain a reopener provision by which the federal agency must prepare a supplemental consistency determination "if the proposed activity will affect any coastal use or resource substantially different than originally described"].)
In addition, the Commission noted its prior concurrences in several other BIA determinations that fee to trust transfers would not adversely affect Coastal Act policies. The Commission observed: "In reviewing past fee-to-trust actions, the Commission has recognized the benefits to Tribes of increasing self-determination and sovereignty, and in these reviews the Commission has sought to develop meaningful working relationships with the affected Tribes for continuing coordination and cooperation."
Based on the foregoing evidence, including the lack of any obstruction to public access, the avowed commitment to maintain public access, the history of providing for public access, and the continued availability of some enforcement authority, it was not unreasonable for the Commission to conclude that the proposed activity, including the fee to trust transfer, was consistent with Coastal Act policies.
2. HARP's Arguments
HARP debates the significance of the evidence, contends the Commission should have retained its enforcement authority and required the tribe to waive its sovereign immunity, and makes several other arguments criticizing the Commission's decision. The arguments lack merit.
a. Sufficiency of the Evidence
HARP dismisses the importance of the tribe's 2000 grant of the easement allowing public access to the pier because it applied to the pier rather than to the beach and to foot traffic rather than to trailering small boats. HARP also argues that the Commission's approvals of other trust transfers are irrelevant because they did not involve property that was key to coastal access. In addition, HARP contends the reopener provisions are inadequate because they only provide for mediation between the BIA and the Commission, and HARP doubts the BIA would compel the tribe to conform to the Commission's determinations because it is the BIA's policy to give tribes discretion as to land use decisions on trust land. (See 25 C.F.R. § 1000.4 (2021).)
HARP's argument is unavailing. Although the easement was granted as to the pier rather than the beach, it is not unreasonable to conclude that the tribe's prior effort to protect one aspect of the site is consistent with continuing efforts to protect other aspects of the site, including Launcher Beach. Although the reopener provisions prescribe mediation in the case of a dispute, HARP fails to establish that mediation is an unsuitable mechanism for resolving disputes. Moreover, there was ample other evidence in the record, described ante, to support the Commission's decision. It is not our role to reweigh the evidence, but only to determine whether there was substantial evidence from which the Commission could reasonably reach its conclusion.
HARP also refers us to an unsworn letter to the Commission from the former owner of the property, which stated that in 2000 the then-chair of the tribe told him orally that the tribe would never seek to place the property in trust status. HARP seems to suggest this means the tribe cannot be trusted. We question how an unsupported oral statement by one tribal representative to another individual a decade ago would compel the Commission to think the tribe will renege on its current written promises to state and federal government. In any event, the Commission was in the best position to evaluate the credibility of the evidence and the tribe's representations.
In another criticism of Trinidad Rancheria, HARP refers us to a different federal consistency determination concerning the tribe's plans to build a 5.5-story hotel. When the Commission called its attention to the four-story limitation in the tribe's development standards, Trinidad Rancheria amended the height restriction in those standards to six stories. While HARP contends this shows that the tribe can easily amend its own documents, there remains nothing to indicate the tribe is going to block public access to Launcher Beach, or why it would want to.
b. Commission's Retention of Authority
HARP suggests the fee to trust transfer of the property is inconsistent with the Coastal Act's public access policies because the Commission will have little enforcement authority once the property is transferred into trust and no longer part of the coastal zone.
The argument lacks merit. The Coastal Act does not state that the Commission must maintain all its enforcement authority in order to concur with the BIA's consistency determination. The Commission considered the extent of its future oversight and enforcement authority, and it concluded that its oversight over development when federal agencies, funding, or permits are involved, as well as its authority under the reopener provisions, would be sufficient under the circumstances. HARP fails to demonstrate that the Commission's conclusion is not supported by substantial evidence.
c. Waiver of Sovereign Immunity
A tribe is immune from lawsuits absent abrogation of the immunity by Congress or a waiver by the tribe. (Self v. Cher-Ae Heights Indian Community of Trinidad Rancheria (2021) 60 Cal.App.5th 209, 213 [tribe's immunity barred a lawsuit by private parties to obtain a public easement for access to Launcher Beach]; Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782, 785, 788-789 [immunity protected Indian community from state's lawsuit for opening a casino outside Indian lands].) HARP argues that state governments can bargain with a tribe for a waiver of its sovereign immunity; the Commission has required such a waiver from tribal landowners on other occasions; and the Commission abused its discretion in not getting a waiver from Trinidad Rancheria here because the tribe cannot be sued if it eventually interferes with access to the beach.
HARP's argument is unpersuasive. While the Commission could have required the tribe to waive its immunity, the public access policies of the Coastal Act do not compel it to do so. Nor has HARP demonstrated that the Commission abused its discretion in this regard, since there was no evidence that resort to the courts will be necessary.
Indeed, HARP has expressed its concern about what the tribe might do in the future, not anything the tribe has applied to do or threatened to do. In making its determination, the Commission is not required to speculate what the tribe might do. (See Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900, 944 [Commission not required to speculate about uses of lots that could be created in the future]; Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830, 857 ["Appellants speculate that once one landowner in the development is allowed to encroach on the riparian habitat, others will want to do the same, resulting in homes being built on those vacant lots within the 100-foot riparian setback," but without evidence that it will occur, such speculation is not substantial evidence]; Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145 [CEQA document did not need to discuss how future regional planning documents would apply to a project because "[a]gencies are not required to engage in 'sheer speculation' as to future environmental consequences of the project"].) As we concluded in another case involving the same project as this one, concerns about the possibility Trinidad Rancheria will restrict public access to Launcher Beach are speculative. (Self v. Cher-Ae Heights Indian Community of Trinidad Rancheria, supra, 60 Cal.App.5th at p. 222 [plaintiffs' "concern that, sometime after the federal government takes the property into trust, the Tribe might interfere with access .... is speculative"].)
We also observe that the question is not whether requiring the tribe to waive its immunity would have better protected public access to Launcher Beach; the question is whether the Commission could reasonably conclude, based on the evidence before it, that even without the waiver of immunity the project was consistent with the public access policies of the Coastal Act. Ample evidence supports that conclusion.
d. Other Arguments
HARP makes numerous other arguments in its briefs. Although we do not address all of them explicitly in this opinion, we have considered each one and found them all to be unpersuasive.
For example, HARP argues that a commissioner mentioned a new "environmental justice" policy during deliberations and another expressed that he favored tribal sovereignty and the tribe's not having to pay property taxes. HARP contends, without authority, that these interests of the property holder are not proper considerations and constitute "social engineering." (But see Pub. Resources Code, § 30210; Pub. Resources Code, § 30214, subds. (a), (b) [Legislature intended that public access policies be implemented in a "reasonable manner that considers the equities and that balances the rights of the individual property owner with the public's constitutional right of access"].) Regardless, substantial evidence supported the Commission's decision.
HARP argues that transferring the property into trust was not necessary to accomplish the physical improvements desired by the tribe. But while this might be (and was) a consideration for the Commission, the question for the trial court and this court is whether substantial evidence supported what the Commission ultimately decided: that the project as stated, with the fee to trust transfer, was consistent with the relevant Coastal Act policies. For reasons we have explained, the evidence in this regard was sufficient.
HARP contends that by accepting promises from the tribe that it would never interfere with public access, the Commission delegated one of its core duties to the tribe and thereby exceeded its jurisdiction. Not so. The Commission exercised one of its core duties and its jurisdiction by considering the BIA's consistency determination and deciding whether the tribe's statements, under the totality of the circumstances, rendered the project consistent with public access policies.
HARP argues that the Commission improperly interpreted Public Resources Code section 30001 because subdivision (b) of that statute states that the "permanent protection of the state's natural and scenic resources is a paramount concern to present and future residents of the state and nation." (Italics added.) There is no evidence, however, that the Commission chose not to treat the permanent protection of the state's natural and scenic resources as "a paramount concern." (Italics added.) To the extent HARP thinks the statutory language means the Commission is without jurisdiction or authority to approve a development that complies with the Coastal Act merely because, at some point in the future, the landholder might reverse course and, contrary to the evidence, take some step to jeopardize access to a particular beach, HARP is mistaken. The fact that HARP disagrees with the Commission's decision does not render the decision erroneous under the applicable standard of review.
HARP has requested that we take judicial notice of an addendum to the Commission's staff report from a different consistency determination (showing the tribe's amendment on height restrictions pertinent to a hotel) and an excerpt from a gaming compact between Trinidad Rancheria and the state that contains a waiver of the tribe's immunity from suit in state or federal court. The trial court granted judicial notice of this material. We deferred our ruling on HARP's unopposed request until our consideration of the merits. We now grant it.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P.J. BURNS, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.