Opinion
Page 1396a
202 Cal.App.4th 1396a __ Cal.Rptr.3d __ CITIZENS FOR EAST SHORE PARKS, et al., Plaintiffs and Appellants, v. STATE LANDS COMMISSION, Defendant and Respondent CHEVRON U.S.A. INC., et al., Real Parties in Interest and Respondents. A129896 California Court of Appeals, First District, First Division January 27, 2012Alameda County Super. Ct. No. RG-09439704
THE COURTIT IS ORDERED Appellants’ request for judicial notice, filed January 13, 2012 (202 Cal.App.4th 549;___ Cal.Rptr.3d ___), is granted and petition for rehearing is DENIED.
The opinion filed December 30, 2011, is hereby modified as follows:
1. On page 1 [202 Cal.App.4th 553, advance report, 1st par. of opinion, lines 1-5], the first sentence of the first full paragraph shall be modified to read as follows:
Defendant and respondent State Lands Commission (Lands Commission) approved a 30-year lease allowing real party in interest and respondent Chevron U.S.A. Inc. (Chevron) to continue operating a marine terminal in San Francisco Bay waters, near the company’s refinery in Richmond, California.
2. On page 1 [202 Cal.App.4th 553, advance report, 1st par. of opinion, lines 5-8 to 202 Cal.App.4th 554, 1st par., line 1], the second sentence of the first full paragraph shall be modified to read as follows:
Plaintiffs and Appellants Citizens for East Shore Parks and Daniel P. Doellstedt contend that in approving the lease, the Lands Commission failed to comply with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and also violated the public trust doctrine.
3. On page 2 [202 Cal.App.4th 554, advance report, 3d full par., lines 4-6], the second sentence of the second full paragraph shall be modified to read as follows:
The refinery and terminal are linked by a pipeline system that transfers oil and petroleum products between the two facilities.
Page 1396b
4. On page 2 [202 Cal.App.4th 554, advance report, 3d full par., lines 6-8], the third sentence of the second full paragraph shall be modified to read as follows:
Leaving the terminal, the pipelines first cross a 4, 200-foot causeway that largely stands atop submerged state land. The final 750 feet of the causeway, however, cross private land, which is submerged or partially submerged and therefore is also subject to a public trust servitude. 1
There is no change in footnote 1.
5. On page 2 [202 Cal.App.4th 554, advance report, 3d full par., lines 8-10], the last sentence of the second full paragraph should be modified to read as follows:
Beyond the causeway, the pipelines cross the “upland” area, land which is above tidal reach and not subject to such servitude.
6. Footnote 2 should be added after the last sentence in the third full paragraph that ends with the date “January 29, 2009." [202 Cal.App.4th 554, advance report, 4th full par., line 5.] All subsequent footnotes should be renumbered accordingly. The text of the footnote should read as follows:
We use the term “renewal” generically, referencing continued leasing of the property for the same uses.
7. On page 3 [202 Cal.App.4th 555, advance report, 1st par., lines 6-8], the last sentence of the first paragraph should be modified to read as follows:
The EIR process took nearly nine years from the Commission’s notice it would prepare such a report, dated November 1998, to completion of the final EIR, dated March 2007.
8. On page 4 [202 Cal.App.4th 555, advance report, 3d full par., lines 1-5], the first sentence of the first full paragraph should be modified to read as follows:
During the review process there was also discussion about how lease renewal would affect recreational activities on not only the submerged and tidal lands over which the terminal and the causeway sit, but also on the “upland” area where plaintiffs want a portion of the Bay Trail (a hiking and biking trail that will encircle San Francisco Bay) constructed.
9. On page 4 [202 Cal.App.4th 555, advance report, 3d full par., line 7 to 202 Cal.App.4th 556, advance report, 1st par., lines 1-2], the third sentence of the first full paragraph should be modified to read as follows:
Page 1396c
This agreement, dated July 31, 2008, obligated Chevron to pay money and provide other consideration to the city if it issues permits for certain projects at the refinery.
10. On page 4 [202 Cal.App.4th 556, advance report, 1st full par., line 8], a new footnote (newly numbered fn. 4) should be added after the second sentence of the second full paragraph. The sentence ends with the word “regulation.” All subsequent footnotes should be renumbered accordingly. The text of the footnote should read as follows:
Chevron’s agreements concerning the Bay Trail, including those made to the City of Richmond in the Community Benefits Agreement of 2008, were reduced to a letter agreement with the Lands Commission. Although the Community Benefits Agreement is no longer in force, the letter agreement persists.
11. On page 8 [202 Cal.App.4th 559, advance report, 2d full par., lines 1-4], the first sentence of the second full paragraph should be modified to read as follows:
For example, in Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428 [91 Cal.Rptr.2d 322] (Riverwatch), the appellate court approved the county’s chosen baseline which included illegal development that had occurred at a mining operation seeking a use permit.
12. On page 8 [202 Cal.App.4th 559, advance report, 2d full par., lines 4-6], the second sentence of the second full paragraph should be modified to read as follows:
The respondents could not, said the court, essentially turn back the clock and insist upon a baseline that excluded existing conditions.
13. On page 10 [202 Cal.App.4th 560, advance report, footnote 5], the text of footnote 5 (as filed, and now newly numbered fn. 7) shall be modified to read as follows:
Chevron’s predecessor, Standard Oil, began using the terminal in 1905. Plaintiffs point out the 1947 lease allowed the state to request removal and restoration of the premises to their pre-lease condition if it conferred with the lesee at least six months before lease termination. However, the state never made any such request.
14. On page 16 [202 Cal.App.4th 565, advance report, 2d full par., lines 2-4], the second sentence of the first full paragraph shall be modified to read as follows:
Page 1396d
Section 4.2.1 of the draft EIR sets forth the state of the bay’s water quality, and page 4.2-5 of that section discusses discharges from the refinery. Pages 4.2-55 to 4.2-58 of the draft EIR address cumulative impacts of the terminal’s discharge and other discharges into the bay, including those from the refinery.
15. On page 19 [202 Cal.App.4th 568, advance report, 1st full par., lines 1-2], the first sentence of the second full paragraph shall be modified to read as follows:
To begin with, both the draft EIR (in sections 4.5.1 and 4.5.4) and responses to comments addressed comments raising recreational and Bay Trail issues.
16. On page 29 [202 Cal.App.4th 576, advance report, 1st full par., lines 7-12], the third sentence (immediately after the citation), of the first full paragraph shall be modified to read as follows:
Accordingly, we do not read National Audubon or Carstens as imposing on the Lands Commission, here, an obligation to evaluate the other public trust uses urged by plaintiffs, particularly since those recreational uses are to some degree incompatible with the trust use to which the navigable waters and submerged and partially submerged lands in question here have been put for over a century.
There is no change in the judgment.
Appellants’ petition for rehearing is denied.