Opinion
C086184
12-03-2019
JAMULIANS AGAINST THE CASINO, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent; JAMUL INDIAN VILLAGE, Real Party in Interest.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2016-80002343-CU-WM-GDS)
This case arises out of a casino development in rural San Diego County. Real party in interest Jamul Indian Village (JIV) has built and is currently operating a casino on its tribal land pursuant to a compact entered into with the State of California (Gov. Code, § 12012.25, subd. (a)(22)). The compact provides the terms under which JIV could construct and operate the casino, which is located on tribal land that abuts and has direct access to State Route 94 (SR-94). Recognizing that the casino development would cause significant off-reservation traffic impacts, respondent Department of Transportation (Caltrans), at the request of JIV, undertook the SR-94 Improvement Project (SR-94 Project or Project) for the purpose of providing appropriate access to JIV's tribal land and highway improvements along SR-94 that would lessen the direct traffic impacts caused by the casino development on SR-94. The SR-94 Project is a plan to improve five specific non-access intersections along SR-94 north of the casino development and to improve access to JIV's tribal land from SR-94 along an existing access road alignment—Daisy Drive.
Consistent with its litigation strategy in the trial court, JIV has declined to make a general appearance in this court as a respondent, but sought leave to appear and file a brief as an amicus curiae, which we granted. As it is nonetheless named as real party in interest in the mandate petition we must include it in the caption as a nominal real party in interest on appeal.
Plaintiff Jamulians Against the Casino (JAC) appeals from the judgment entered after the trial court denied its verified petition for writ of mandate and complaint for declaratory and injunctive relief. JAC's petition alleges that Caltrans failed to certify a legally adequate environmental impact report (EIR) for the SR-94 Project, and therefore violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).
JAC is a nonprofit unincorporated association of citizens living in and around Jamul dedicated to preserving the small-town, rural lifestyle of their community.
Undesignated statutory references are to the Public Resources Code.
On appeal, JAC contends the judgment must be reversed because the EIR failed to provide an accurate, stable, and finite description of the SR-94 Project. JAC further contends that reversal is required because the EIR failed to analyze a reasonable range of feasible alternatives that satisfied the Project's purpose of reducing traffic impacts caused by the casino development. We conclude that JAC has failed to carry its burden to demonstrate that the EIR was legally inadequate under CEQA. Therefore, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
JIV is a Native American reservation located in Jamul, California, a small rural community in unincorporated San Diego County. JIV is federally recognized as a sovereign nation.
SR-94 is a highway that generally travels in an east-west direction. It begins near the City of San Diego as an urban freeway and extends southeast towards the border with Mexico. It passes through Jamul as a two-lane, undivided highway. Throughout the proposed SR-94 Project limits, SR-94 travels in a north-south direction. JIV's tribal land has direct access to SR-94 via two existing road alignments—Reservation Road and Daisy Drive.
In 1999, JIV entered into a compact with the State of California for the purpose of constructing and operating a casino on its tribal land. (Gov. Code, § 12012.25, subd. (a)(22).) In deference to tribal sovereign immunity, the Legislature has declared that the execution of this compact and any "on-reservation impacts of compliance with [its] terms" are exempt from any environmental review under state law (i.e., CEQA). (Gov. Code, § 12012.25, subd. (g).) JIV nonetheless agreed as part of the compact to engage in the equivalent of state and federal environmental review. It agreed to " 'take appropriate actions' " to determine whether the casino development would have " 'any significant adverse impacts on the off-Tribal lands environment,' " and to " 'make good faith efforts to mitigate any and all such . . . impacts.' "
In 2012, JIV prepared an environmental document assessing the potential off-reservation environmental impacts associated with the construction and operation of its proposed casino development (hereafter Casino Project). The environmental review for the Casino Project culminated in a document titled, "Final Tribal Environmental Evaluation" (Final Tribal EE). The Final Tribal EE contained mitigation measures aimed at reducing environmental impacts from the project, which included a 203,000-square-foot casino. Among other things, the Final Tribal EE concluded that the operation of the casino would: (1) directly cause operating conditions at six intersections along SR-94—Jamacha Boulevard, Jamacha Road, Steele Canyon Road, Lyons Valley Road, Maxfield Road, and Melody Road—to fall below acceptable operating levels; (2) add traffic to intersections currently operating below acceptable levels; and (3) contribute to a cumulative impact at other intersections along SR-94. The Final Tribal EE also concluded that the existing configuration of the SR-94/Reservation Road intersection, which was the main access to JIV's tribal land, was inconsistent with Caltrans standards. To mitigate the significant direct off-reservation traffic impacts from the Casino Project, the Final Tribal EE included measures calling for various improvements at each of the six intersections and construction of an improved or new access road alignment leading to JIV's tribal land.
While other intersections were identified as being significantly impacted by the Casino Project, Caltrans determined that those intersections would be impacted by "cumulative traffic," and thus JIV would be required to mitigate only its proportionate share of those impacts.
In order to implement the traffic mitigation measures identified in the Final Tribal EE, JIV needed Caltrans approval and an encroachment permit. The highway improvements contemplated in the encroachment permit were subject to environmental review under CEQA.
In August 2013, Caltrans issued a notice of preparation, notifying the public that it was preparing an EIR to study access road and other highway improvements along SR-94 to facilitate access to JIV's tribal land and to mitigate traffic impacts from the Casino Project. After Caltrans approved an encroachment permit for the construction phase of the Casino Project and a transportation management plan in December 2013, JIV began construction of the project.
The encroachment permit for the construction phase of the Casino Project allowed flaggers and signs within the right-of-way of SR-94 to enhance and ensure public safety.
In July 2015, Caltrans released the draft EIR (DEIR) for the SR-94 Project, which was generally described as a project proposed and funded by JIV to improve various intersections along SR-94 and to provide improved access to JIV's tribal land. The DEIR explained that the SR-94 Project was necessary due to increased traffic from the Casino Project, which was currently under construction. The stated purpose of the SR-94 Project is to provide improved access to JIV's tribal land and highway improvements along SR-94 that will mitigate traffic impacts from the Casino Project. The objectives of the Project include: (1) providing appropriate access to and from SR-94 and the Casino Project; (2) lessening direct traffic impacts caused by the Casino Project on SR-94; (3) improving the geometric design of the main access between SR-94 and the Casino Project; and (4) improving the geometrics of SR-94 in the vicinity of Melody Road and Reservation Road in a manner consistent with the SR-94 Transportation Concept Summary and the 2050 Regional Transportation Plan.
The DEIR contained regional and local maps identifying the location of the SR-94 Project, which was more specifically described in the "Proposed Project" chapter as follows: "The purpose of the Proposed Project is to provide improvements to the Non-Access Intersections that would be significantly impacted by [Casino Project]-related traffic originating from the JIV Tribal lands. In addition, the purpose of the Proposed Project is to provide an improved access road alignment from SR-94 to the JIV Tribal lands. The Proposed Project includes the improvement of five Non-Access Road Intersections and the construction or improvement of an access alignment (with all necessary associated improvements), from either SR-94 or Melody Road, to the JIV's separately- and independently-approved [Casino] Project (located approximately one mile south of Jamul, California, at Post Miles PM: 13.4-14.2; 17.1-17.6; 19.2-20.2; 20.4-21.4) within the Proposed Project limits."
The DEIR explained that the improvements to the five non-access intersections would occur along SR-94 "between the SR-94/Jamacha Boulevard intersection and 1,800 feet south of Reservation Road . . . ." The non-access intersections were identified as: "SR-94/Jamacha Boulevard"; "SR-94/Jamacha Road"; "SR-94/Steele Canyon Road"; "SR-94/Lyons Valley Road"; and "SR-94/Maxfield Road." The DEIR described the proposed features at these intersections as including "the installation of new signals, timing modifications of existing signals, restriping of lanes, construction of retaining walls, construction/reconstruction of new bus stops, road widening, installation of additional turning lanes and development of new acceleration/through lanes . . . ."
The DEIR identified four proposed project alternatives that were under consideration, one of which included three separate options, as follows: alternative 1: Reservation Road access; alternative 2: Daisy Drive access (option 1-full footprint, option 2-reduced footprint, and option 3-minimum footprint); alternative 3: Melody Road access; and alternative 4: no project. The DEIR explained that each of the build alternatives included improvements to the five non-access intersections as well as an improved or new access road alignment between SR-94 or Melody Road and JIV's tribal land. The existing access road alignments from SR-94—Reservation Road and Daisy Drive—would be widened/straightened and right/left turn lanes would be added. The new access alignment from Melody Road would involve a new two-lane road on a vacant 87-acre parcel located west of SR-94. The DEIR explained that the scope of each build alternative included improvements to the SR-94/Melody Road intersection, in addition to the improvement or creation of the access driveway itself, and that each access road alignment would also include grading, the construction of retaining walls, construction/reconstruction of bus stops, relocation of above/below ground utilities, and the construction of vegetated bio-swales. The DEIR noted that the proposed improvements for the SR-94 Project were the same improvements the Final Tribal EE determined would be necessary to mitigate off-reservation traffic impacts caused by the Casino Project.
The Final Tribal EE identified alternative 2: Daisy Drive access as JIV's preferred project alternative. Caltrans asks us to take judicial notice of JIV's Tribal Resolution No. 2013-03, which certified the Final Tribal EE, approved the Casino Project, and identified Daisy Drive as the preferred access option. Alternatively, Caltrans asks us to supplement the administrative record with this document. We grant Caltrans's alternative request. (See § 21167.6, subd. (e)(10) [the content of the administrative record in a CEQA action shall include any "written materials relevant to the respondent public agency's compliance with [CEQA] or to its decision on the merits of the project"]; County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8 [in a CEQA action, the administrative record should "include pretty much everything that ever came near a proposed development or to the agency's compliance with CEQA in responding to that development"].)
The DEIR identified and compared the environmental impacts of each project alternative in detail and discussed the proposed avoidance, minimization, and/or mitigation measures. The document stated that Caltrans would select a preferred alternative after fully analyzing and considering the project alternatives, which were analyzed at an equal level of detail.
The DEIR explained that the intersections included in the proposed SR-94 Project were selected for improvements because they were identified as those "facilities" that were significantly impacted solely by traffic from the Casino Project, i.e., the intersections operated acceptably prior to the Casino Project but would not operate acceptably after its completion due to increased traffic. The DEIR noted that the other intersections significantly impacted by the Casino Project and other planned growth unrelated to that project were not part of the proposed SR-94 Project, and that JIV intended to pay its fair share for those impacts, which would require CEQA compliance before their implementation. The DEIR made clear that environmental impacts related to the Casino Project were beyond the scope of the document, except to the extent that they were considered as part of the cumulative impact analysis.
The DEIR advised the public that Caltrans had prepared the document and was the lead agency under CEQA. The public was also advised that the DEIR "examines the potential environmental impacts of the alternatives being considered for the SR-94 . . . Project," and "explains why the project is being proposed, what alternatives have been considered for the project, how the existing environment could be affected by the project, the potential impacts of each of the alternatives, and the proposed avoidance, minimization, and/or mitigation measures." The DEIR requested that the public review the document and attend the public meeting about it and/or send written comments to Caltrans. The public was informed that, following the receipt of comments on the DEIR, Caltrans may: (1) approve one of the alternatives analyzed; (2) conduct additional environmental studies; or (3) abandon the SR-94 Project. The public was also informed that if Caltrans decided to proceed with the Project it would select a preferred project alternative and make the final determination of the Project's effect on the environment.
Caltrans received numerous comments on the DEIR, including a detailed letter from JAC's counsel. Among other things, the letter claimed that the DEIR violated CEQA because it failed to provide an adequate project description and did not analyze a reasonable range of project alternatives. The letter asserted that the DEIR was deficient because it failed to inform the public which of the project alternatives was the proposed project, and that, without an identified proposed project, the DEIR could not adequately analyze the significant environmental impacts or consider alternatives to that project. The letter further asserted that the DEIR violated CEQA because the range of alternatives discussed was too narrow, as the document did not consider any project alternatives other than those examined in the Final Tribal EE. According to JAC's counsel, "By basing its alternatives solely on [JIV's] analysis, Caltrans . . . failed to perform the necessary independent review."
With respect to the project description, Caltrans explained that the final EIR (FEIR) describes the proposed SR-94 Project as involving "the improvement of five existing Non-Access Road Intersections as well as construction or improvement of one new access alignment to/from the JIV's separately- and independently-approved [Casino Project] and SR-94. [Citations.] The Final EIR presents and evaluates three different access alternatives (one of which, Daisy Drive, has three alternate configurations such that five total alternative configurations are studied), and studies each of the alternatives at an equal and consistent level of detail. [¶] The Final EIR describes the project as 'the construction or improvement of an access alignment (with all necessary associated improvements) from either SR-94 or Melody Road,' highlighting the words 'or' and 'either' as indicated. The Final EIR states that the access road will involve construction or improvement of an access alignment because, while the Melody Road alternative would require construction of a new road, both Daisy Drive and Reservation Road are existing roads that currently provide access to JIV's lands such that use of either of them as the access road would constitute improvement of an existing road. As to the use of the highlighted word 'either,' the Melody Road Alternative would provide access directly from Melody Road while the Daisy Drive or Reservation Road Alternatives would provide access directly from SR-94." Caltrans's response also noted that the FEIR describes the components of the improvements at the five non-access intersections and the various access road alignment alternatives and options between SR-94 and JIV's tribal land, and includes all the information required by the CEQA Guidelines.
The regulations implementing CEQA are codified at California Code of Regulations, title 14, section 15000 et seq. The regulations are often referred to as the CEQA Guidelines. (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1561, fn. 5; hereafter CEQA Guidelines or Guidelines.) "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5.)
With respect to project alternatives, Caltrans stated that the FEIR provides an adequate comparative analysis of a reasonable range of alternatives, and noted that JAC's counsel had failed to suggest any additional feasible alternatives that should have been, but were not, included in the FEIR. Caltrans disagreed with counsel's claim that it accepted JIV's analysis and proposed highway improvements without conducting its own review. Caltrans explained that it had independently analyzed the SR-94 Project for over two years and concluded that the improvements to the five non-access road intersections were warranted and necessary to alleviate the impacts associated with increased congestion and delay from casino-related traffic, and that no alternative locations or designs for the improvements needed at the intersections were feasible or even reasonable given that the improvements were intersection-specific and designed to comply with Caltrans standards that both ensure traffic conditions and improve public safety. Caltrans further explained that it had also independently reviewed the proposed access road locations and assisted in the development of all access road alignment alternatives and options.
In March 2016, Caltrans certified the FEIR and approved the SR-94 Project. The approved Project was described as the "improvement of the five stand-alone intersections (SR-94/Jamacha Boulevard, SR-94/Jamacha Road, SR-94/Steele Canyon Road, SR-94/Lyons Valley Road, and SR-94/Maxfield Road) and improvement of the Daisy Drive Access Road Alignment (Alternative 2), build option 1 (full footprint)." The FEIR identified this build alternative as the preferred alternative and explained how Caltrans reached its decision.
Amicus curiae asks us to take judicial notice of an encroachment permit issued by Caltrans for the purpose of showing that the portion of the SR-94 Project involving improvements along SR-94 were completed as of June 30, 2017. We deny the request. Courts may decline to take judicial notice of matters that are not material to the resolution of the appeal. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4 (City of Los Angeles); Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089, fn. 4 (Schifando).)
In April 2016, JAC filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief. The petition alleged multiple CEQA violations and sought an order setting aside Caltrans's certification of the FEIR and approval of the SR-94 Project. Among other things, JAC claimed that the FEIR did not provide an adequate project description and failed to consider a reasonable range of project alternatives that would satisfy the SR-94 Project's stated purpose of providing access and highway improvements along SR-94 that would mitigate traffic impacts from the Casino Project while avoiding or reducing the SR-94 Project's environmental impacts.
In September 2017, the trial court heard argument and issued a written ruling denying JAC's petition. After judgment was entered, JAC filed a timely notice of appeal.
DISCUSSION
1.0 General CEQA Principles and Standard of Review
"CEQA was enacted to advance four related purposes: to (1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment." (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382 (CBIA).)
"To further these goals, CEQA requires that agencies follow a three-step process when planning an activity that could fall within its scope. [Citations.] First, the public agency must determine whether a proposed activity is a '[p]roject,' i.e., an activity that is undertaken, supported, or approved by a public agency and that 'may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.' " (CBIA, supra, 62 Cal.4th at p. 382.) "Second, if the proposed activity is a project, the agency must next decide whether the project is exempt from the CEQA review process under either a statutory exemption [citation] or a categorical exemption set forth in the CEQA Guidelines [citations]. If the agency determines the project is not exempt, it must then decide whether the project may have a significant environmental effect. And where the project will not have such an effect, the agency 'must "adopt a negative declaration to that effect." ' " (Ibid.) "Third, if the agency finds the project 'may have a significant effect on the environment,' it must prepare an EIR before approving the project." (Ibid.)
An EIR is an "informational document" the purpose of which 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; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." (§ 21061.) According to our Supreme Court: "The purpose of an EIR is to give the public and government agencies the information needed to make informed decisions, thus protecting ' "not only the environment but also informed self-government." ' " (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162 (Bay-Delta).) "The EIR must set forth not only environmental impacts and mitigation measures to be reviewed and considered by state and local agencies, but also project alternatives [citations]—including a 'no project' alternative. [Citation.] . . . '[T]he mitigation and alternatives discussion forms the core of the EIR.' " (Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, 713.)
"Where an EIR is challenged as being legally inadequate, a court presumes a public agency's decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise." (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530.) Our review in a CEQA case, as in other mandamus actions, is the same as that of the trial court. We review the agency's action, not the trial court's decision, and our inquiry extends only to whether there has been a prejudicial abuse of discretion on the part of the agency. (Bay-Delta, supra, 43 Cal.4th at pp. 1161-1162.) An agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA requires or by reaching factual conclusions unsupported by substantial evidence. (Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 935.) " 'Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation], we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court "may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable," for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." [Citation.]' " (Ibid.)
As a result of the prejudicial abuse of discretion standard, " ' "The court does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document." ' " (Bay-Delta, supra, 43 Cal.4th at p. 1161.) "The ultimate inquiry, as case law and the CEQA guidelines make clear, is whether the EIR includes enough detail 'to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.' " (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516; see California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 262 [The overriding issue on review is whether the lead agency reasonably and in good faith discussed a project in sufficient detail to allow the public to discern from the EIR the " ' "analytic route the . . . agency traveled from evidence to action" ' "].) Generally, that inquiry is a mixed question of law and fact subject to de novo review, but to the extent factual questions predominate, the more deferential substantial evidence standard of review applies. (Sierra Club v. County of Fresno, at p. 516.)
2.0 Alleged CEQA Violations
2.1 Project Description
JAC contends the DEIR violated CEQA by failing to provide an accurate, stable, and finite description of the SR-94 Project. According to JAC, the DEIR did not identify any specific proposed project. Instead, it listed numerous potential roadway improvements as possible projects, which was confusing and gave conflicting signals to decisionmakers and the public about the nature and scope of the SR-94 Project. JAC maintains that the DEIR's project description was so "distorted" that it precluded a full and accurate analysis of the Project's environmental impacts and identification of a range of reasonable project alternatives. We disagree.
"A DEIR must include a project description. [Citation.] The project description must contain (1) the precise location and boundaries of the proposed project; (2) a statement of the objectives sought by the proposed project, including the underlying purpose; (3) a general description of the project's technical, economic, and environmental characteristics; and (4) a statement briefly describing the intended uses of the EIR. [Citation.] The description should not, however, 'supply extensive detail beyond that needed for evaluation and review of the environmental impact.' [Citation.] The description must include the entirety of the project, and not some smaller portion of it." (South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 332 (South of Market); see also Guidelines, § 15124 [describing information that must be included in a project description].)
In the section titled "Project Description," the CEQA Guidelines provide:
"The description of the project shall contain the following information but should not supply extensive detail beyond that needed for evaluation and review of the environmental impact.
"(a) The precise location and boundaries of the proposed project shall be shown on a detailed map, preferably topographic. The location of the project shall also appear on a regional map.
"(b) A statement of the objectives sought by the proposed project. A clearly written statement of objectives 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. The statement of objectives should include the underlying purpose of the project and may discuss the project benefits.
"(c) A general description of the project's technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.
"(d) A statement briefly describing the intended uses of the EIR.
"(1) This statement shall include, to the extent that the information is known to the lead agency,
"(A) A list of the agencies that are expected to use the EIR in their decisionmaking, and
"(B) A list of permits and other approvals required to implement the project.
"(C) A list of related environmental review and consultation requirements required by federal, state, or local laws, regulations, or policies. To the fullest extent possible, the lead agency should integrate CEQA review with these related environmental review and consultation requirements.
"(2) If a public agency must make more than one decision on a project, all its decisions subject to CEQA should be listed, preferably in the order in which they will occur. On request, the Office of Planning and Research will provide assistance in identifying state permits for a project." (CEQA Guidelines, § 15124.)
" '[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.' [Citation.] 'Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal . . . and weigh other alternatives in the balance.' [Citation.] A project description that gives conflicting signals to decision makers and the public about the nature of the project is fundamentally inadequate and misleading. [Citation.] Further, '[a] curtailed, enigmatic or unstable project description draws a red herring across the path of public input.' [Citation.] 'Whether an EIR correctly describes a project is a question of law, subject to de novo review.' " (South of Market, supra, 33 Cal.App.5th at p. 332.)
We conclude that JAC has failed to establish that the project description is legally inadequate under CEQA. At the outset, the DEIR states that Caltrans is the lead agency under CEQA for the SR-94 Project, which is a project proposed and funded by JIV to improve various intersections along SR-94 and provide improved access to JIV's tribal land. The DEIR explains that, in addition to a no project alternative, the document analyzes the environmental impacts associated with three build alternatives designed to lessen traffic impacts that will result from JIV's approved Casino Project, which was currently under construction on tribal land. In the summary section of the DEIR, the Project is described as follows: "The Draft EIR analyzes three alternatives that provide improved access [to] the JIV Tribal Lands, and improve five stand-alone intersections (hereafter, 'Build Alternatives'). The five stand-alone intersection improvements identified [above—i.e., SR- 94/Jamacha Boulevard, SR-94/Jamacha Road, SR-94/Steele Canyon Road, SR-94/Lyons Valley Road, and SR-94/Maxfield Road intersections] are common features to each Build Alternative, while the design of the Access Road Alignment is unique to each Build Alternative. The Build Alternatives include Access Road Alignments as follows: (1) via the existing 'Reservation Road,' which connects the JIV Tribal Lands to SR-94, (2) via 'Daisy Drive,' which is located on the adjacent 4-acre parcel north of the JIV Tribal Lands, and (3) via a new roadway constructed from Melody Road south to the JIV Tribal Lands. Under Alternative 2 (the Daisy Drive Access Road Alignment), there are three build options analyzed. While using the same Daisy Drive access point to and from SR-94, the designed Access Road Alignment improvements along SR-94 vary from option to option under this Alternative. Under Alternative 3: Melody Road Access, a new segment of roadway would be constructed from Melody Road to the JIV Tribal Lands. [¶] 'In addition to the Build Alternatives, a No Project Alternative is also considered in this Draft EIR. Under the No Project Alternative, no improvements would be undertaken for either the stand-alone intersections or Access Road Alignment; however, future growth (including the JIV [casino]) is still assumed to occur.' " (Fn. omitted.) The DEIR explained that Caltrans would select a preferred alternative after fully analyzing and considering each of the alternatives, which were analyzed at an equal level of detail within the document.
The DEIR contains a 71-page chapter titled, "Proposed Project." This chapter contains regional and local maps showing the location of the highway improvements for the proposed SR-94 Project, including site-specific maps. It discusses the history of the approved Casino Project and the need for traffic mitigation measures to lessen the off-reservation impacts from that project, and describes the features of the SR-94 Project, including the specific proposed improvements for the five non-access intersections along SR-94 as well as the specific proposed improvements for the construction of an improved or new access road alignment leading to the casino. The chapter reiterates that the improvements to the five non-access intersections are common design features of each build alternative, and independently discusses and analyzes each build alternative in detail as well as a no project alternative. It also identifies the purpose of the project, specific project objectives, and needed permits and approvals from other agencies. Following the discussion of the project alternatives, the DEIR states that, after the public comment period, Caltrans will consider the comments and identify a preferred alternative and make the final determination of the proposed Project's effect on the environment.
JAC claims that the DEIR is deficient for failing to provide "greater detail" with respect to the project description, but fails to explain how the DEIR's description of the SR-94 Project does not satisfy CEQA's informational requirements. JAC does not argue that any of the required information set forth in the Guidelines is missing from the DEIR. (See Guidelines, § 15124 [describing information that must be included in a project description, see fn. 9, ante].) Nor has JAC argued that the description of the SR-94 was inconsistent throughout the DEIR or that the DEIR and FEIR did not describe the same project. Rather, JAC claims that the DEIR violates CEQA because it does not identify a specific proposal as the actual project or a preferred alternative but instead presents "a perplexing jumble of competing proposals." According to JAC, the DEIR was "fatally flawed by an amorphous Project description whose multiple, competing visions of the Project made comparison of the 'project' with its alternatives impossible." In support of its position, JAC relies heavily on Washoe Meadows Community v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277 (Washoe Meadows).
In its reply brief, JAC argues for the first time that Caltrans failed to identify the precise location and boundaries of the proposed project because it never identified the proposed project on a map. "It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.) In any event, this argument lacks merit. As noted above, the DEIR contains regional and local maps showing the location of the highway improvements for the proposed SR-94 Project, including site-specific maps.
In its opening brief, JAC concedes the point by stating, "The CEQA violation here is not that the Project description changed."
We find JAC's reliance on Washoe Meadows misplaced. That case involved the " 'Upper Truckee River Restoration and Golf Course Reconfiguration Project,' " which had the stated purpose of " 'improv[ing] geomorphic processes, ecological functions, and habitat values of the Upper Truckee River within the study area, helping to reduce the river's discharge of nutrients and sediment that diminish Lake Tahoe's clarity while providing access to public recreation opportunities in the State Park and [Recreation Area].' " (Washoe Meadows, supra, 17 Cal.App.5th at pp. 282-283.) The DEIR described five alternatives: (1) no project; (2) river restoration with reconfiguration of the 18-hole golf course; (3) river restoration with a nine-hole golf course; (4) river stabilization with continuation of the existing 18-hole golf course; and (5) restoration of the ecosystem and the decommissioning of the golf course. (Id. at p. 283.) The DEIR did not identify a preferred alternative, explaining that each of the alternatives would be considered and analyzed at a comparable level of detail, and that, following public comments, "the lead agencies will determine which alternative or combinations of features from multiple alternatives will become the preferred alternative." (Ibid.)
The Washoe Meadows court concluded that the draft EIR violated CEQA because it did not describe a project on which the public could comment, as it set forth a range of five very different alternatives and declined to identify a preferred alternative. (Washoe Meadows, supra, 17 Cal.App.5th at pp. 285, 288-289.) In so concluding, the court reasoned, " '[F]or a project to be stable, the DEIR, the FEIR, and the final approval must describe substantially the same project. A DEIR that states the eventual proposed project will be somewhere in "a reasonable range of alternatives" is not describing a stable proposed project. A range of alternatives simply cannot be a stable proposed project.' " (Id. at p. 288.) The court further reasoned, "A description of a broad range of possible projects, rather than a preferred or actual project, presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives that may not be in any way germane to the project ultimately approved. While there may be situations in which the presentation of a small number of closely related alternatives would not present an undue burden on members of the public wishing to participate in the CEQA process, in this case the differences between the five alternative projects was vast, each creating a different footprint on public land. Each option created a different set of impacts, requiring different mitigation measures. '[W]hen an EIR contains unstable or shifting descriptions of the project, meaningful public participation is stultified.' " (Id. at pp. 288-289, fn. omitted.) In finding that the five "dramatically different" projects described in the DEIR did not constitute a stable project description under CEQA, the court acknowledged that nothing in CEQA expressly requires an agency to identify a preferred alternative and that a preferred alternative is only required to be identified under NEPA " 'if one or more exists.' " (Id. at pp. 289-290 [reasoning that while cases interpreting NEPA can be persuasive authority for interpreting CEQA, California courts will not follow NEPA precedent that is contrary to CEQA].)
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. § 4321 et seq.).
Under NEPA, an agency must identify its preferred alternative or alternatives, "if one or more exists," in the draft environmental impact statement (EIS) and identify such alternative in the final EIS unless another law prohibits the expression of such a preference. (40 C.F.R. § 1502.14(e) (2019).)
Washoe Meadows is distinguishable from this case. Here, the DEIR clearly identifies a highway improvement project that involves improvements to five specific non-access intersections along SR-94 and improvement of an access alignment from SR-94 to JIV's tribal land along one of two existing roads (Reservation Road or Daisy Drive) or the construction of a new access alignment from Melody Road to JIV's tribal land. Unlike Washoe Meadows, the DEIR in this case does not identify a broad range of possible projects and then state that the eventual proposed project will be somewhere in that range of alternatives. The DEIR for the SR-94 Project does not require a commenter to offer input on vastly different alternatives that may not be in any way germane to the project ultimately approved. Rather, the DEIR presents a small number of closely-related alternatives that does not result in an undue burden on members of the public wishing to participate in the CEQA process. Viewed as an informational document, the DEIR included enough detail about the SR-94 Project to enable members of the public to understand and meaningfully consider the environmental impacts of the proposed project. Contrary to JAC's contention, the DEIR is neither confusing nor unlawful for failing to identify a preferred project alternative. CEQA does not impose such a requirement and JAC has failed to cite any controlling authority holding as much.
Amicus curiae requests that we take judicial notice of four documents related to the analysis of project alternatives under NEPA (e.g., Fish and Wildlife Service NEPA Reference Handbook). According to amicus curiae, these documents are relevant to our application of Washoe Meadows, "particularly in determining the effect Washoe [Meadows] will have on projects requiring NEPA and CEQA analysis, and the scope of the alternatives analysis in a joint environmental review document." We deny amicus curiae's request. This case does not involve a project requiring NEPA and CEQA analysis, and the documents amicus curiae asks us to take judicial notice of are not material to our determination of whether the project description in the DEIR is legally adequate under CEQA. Courts may decline to take judicial notice of matters that are not material to the resolution of the appeal. (See City of Los Angeles, supra, 42 Cal.4th at p. 544, fn. 4; Schifando, supra, 31 Cal.4th at p. 1089, fn. 4.)
Because we conclude that JAC has failed to establish that the project description was legally inadequate under CEQA, we reject JAC's related claim that CEQA was violated because the inadequate project description precluded informed decision making by "imped[ing] the public's comparison of the [SR-94] Project with its alternatives." The DEIR identified and compared the environmental impacts of each project alternative, which were analyzed at an equal level of detail, and discussed the proposed avoidance minimization and/or mitigation measures. The DEIR's analysis of project alternatives provided enough detail to enable members of the public to understand and to consider meaningfully the issues raised by the proposed SR-94 Project. We find no merit in JAC's claim that the DEIR's analysis made it "utterly impossible" for the public to properly weigh the project alternatives.
2.2 Project Alternatives
JAC contends that Caltrans violated CEQA by failing to study a reasonable range of project alternatives that satisfied the purpose and objectives of the SR-94 Project. Specifically, JAC asserts that Caltrans failed to consider project alternatives that would reduce traffic-related impacts south of the casino, despite the public's repeated requests for consideration of those alternatives.
"CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts. [Citations.] The CEQA Guidelines state that an EIR must 'describe a range of reasonable alternatives to the project . . . which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project . . . .' [Citation.] An EIR need not consider every conceivable alternative to a project or alternatives that are infeasible." (Bay-Delta, supra, 43 Cal.4th at p. 1163.) "Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. . . . The lead agency is responsible for selecting a range of project alternatives for examination and must publicly disclose its reasoning for selecting those alternatives. There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason." (CEQA Guidelines, § 15126.6, subd. (a).)
"Because an EIR must identify ways to mitigate or avoid the significant effects that a project may have on the environment [citation], the discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly." (CEQA Guidelines, § 15126.6, subd. (b).) "The process of selecting the alternatives to be included in the EIR begins with the establishment of project objectives by the lead agency. 'A clearly written statement of objectives 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 . . . . The statement of objectives should include the underlying purpose of the project.' " (Bay-Delta, supra, 43 Cal.4th at p. 1163.)
"We judge the range of project alternatives in the EIR against 'a rule of reason.' " (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 988.) That rule "requires the EIR to set forth only those alternatives necessary to permit a reasoned choice. The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project. Of those alternatives, the EIR need examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the project." (CEQA Guidelines, § 15126.6, subd. (f).) "CEQA does not require that an agency consider specific alternatives that are proposed by members of the public or other outside agencies." (City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 420.)
"Courts will defer to an agency's selection of alternatives unless the petitioners (1) demonstrate that the chosen alternatives are ' " 'manifestly unreasonable and . . . do not contribute to a reasonable range of alternatives,' " ' and (2) submit evidence showing the rejected alternative was both 'feasible' and 'adequate,' because it was capable of attaining most of the basic objectives of the project, taking into account site suitability, economic viability, availability of infrastructure, general plan consistency, and other relevant factors." (South of Market, supra, 33 Cal.App.5th at p. 345.)
We understand JAC's argument as claiming that Caltrans violated CEQA by refusing to consider project alternatives proposed by the public during the public comment period on the DEIR; specifically, project alternatives that included additional roadway improvements south of the casino. We find no merit in this claim.
As an initial matter, we find that the claim has been forfeited because it was not raised during the administrative process. " 'Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.' [Citation.] Subdivision (a) of [Public Resources Code] section 21177 sets forth the exhaustion requirement [that applies] here. That requirement is satisfied if 'the alleged grounds for noncompliance with [CEQA] were presented . . . by any person during the public comment period provided by [CEQA] or prior to the close of the public hearing on the project before the issuance of the notice of determination.' " (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 791-792, fn. & italics omitted.) " 'The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.' " (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1138.) Comments must express concerns so the lead agency has " ' " 'its opportunity to act and to render litigation unnecessary . . . .' " ' " (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 535.) "The purposes of the doctrine are not satisfied if the objections are not sufficiently specific so as to allow the Agency the opportunity to evaluate and respond to them." (Evans, at p. 1138.) " '[T]he "exact issue" must have been presented to the administrative agency . . . .' " (Sierra Club v. City of Orange, at p. 535.)
Although various commenters pointed out the need for or requested additional roadway improvements south of the casino, the remarks reflected general concerns about the traffic impacts caused by the Casino Project and requests to mitigate those impacts. Such comments are insufficient to raise the specific issue JAC asserts on appeal. None of the comments alerted Caltrans to the contention that the DEIR's project alternatives analysis was deficient for failure to analyze a project alternative that included additional roadway improvements south of the casino. Instead, the comments amounted to requests for Caltrans to expand the scope of the SR-94 Project or mitigate traffic-related impacts caused by the Casino Project.
In any event, even if this issue had been adequately raised during the administrative process, it fails on the merits. As discussed above, the SR-94 Project is a highway improvement project consisting of a proposal to improve five specific non- access intersections north of the casino along SR-94, and to provide improved access to JIV's tribal land by improvements to an existing access road alignment or construction of a new access road alignment. The stated purpose of the Project is to provide improved access to JIV's tribal land and highway improvements along SR-94 that will mitigate traffic impacts from the Casino Project. The Project objectives include: (1) providing appropriate access to and from SR-94 and the Casino Project; (2) lessening direct traffic impacts caused by the Casino Project on SR-94; (3) improving the geometric design of the main access between SR-94 and the Casino Project; and (4) improving the geometrics of SR-94 in the vicinity of Melody Road and Reservation Road in a manner consistent with the SR-94 Transportation Concept Summary and the 2050 Regional Transportation Plan. The SR-94 Project does not, as JAC suggests, seek to mitigate all casino-related traffic impacts. Instead, it seeks to mitigate direct traffic impacts caused solely by the Casino Project. Moreover, the record reflects that the Casino Project, not the SR-94 Project, would cause traffic-related impacts south of the casino. Thus, Caltrans, in assessing the environmental impacts from the SR-94 Project, was not required to consider any proposed project alternatives involving such impacts. (CEQA Guidelines, § 15126.6, subd. (f) ["The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project."]; Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 354 [an EIR is only "required to analyze a reasonable range of alternatives that could feasibly reduce a project's significant environmental impacts"].)
JAC claims that the SR-94 Project "creates" traffic-related impacts south of the casino but has failed to meet its burden to establish that Caltrans's contrary conclusion in the DEIR is not supported by substantial evidence. JAC's opening brief makes no attempt to set forth the DEIR's analysis in this regard and explain why it is deficient. Indeed, JAC's two-paragraph argument fails to cite any portion of the DEIR discussing traffic-related impacts. "As with all substantial evidence challenges, an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) To the extent JAC attempts to meets its burden with respect to this issue in its reply brief, we find this attempt improper and, in any event, insufficient to demonstrate that Caltrans's conclusion was not supported by substantial evidence.
Finally, this claim fails because JAC has failed to meet its burden to demonstrate that the project alternatives chosen by Caltrans are manifestly unreasonable and do not contribute to a reasonable range of alternatives for the SR-94 Project. Further, JAC has not cited any evidence in the record showing that Caltrans rejected a project alternative that was both "feasible" and "adequate," because the alternative was capable of attaining most of the basic objectives of the Project, taking into account the relevant factors.
DISPOSITION
The judgment is affirmed. Respondent Caltrans is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Butz, J. We concur: /s/_________
Hull, Acting P.J. /s/_________
Duarte, J.