An appellate court has rejected the argument that a project leading to the loss of farmland should have been mitigated with the establishment of agricultural easements on other farmland. The ruling came in a lawsuit regarding development of a large state prison near the San Joaquin Valley town of Delano. The environmental impact report determined that the prison would convert 480 acres of farmland to institutional uses, and that other projects would convert another 1,820 acres of farmland. The California Department of Correction (CDC) found that no mitigation was feasible and adopted findings of overriding consideration. But project opponents contended the EIR did not analyze or discuss feasible mitigations, such as agricultural easements over important farmlands in the vicinity of the proposed prison. A unanimous three-judge panel of the Fifth District Court of Appeal rejected opponents' argument. "At best, such as easement might prevent the future conversion of some as yet undefined parcel of farmland to a nonagricultural use. Although appellant [project opponents] might deem this to be a desirable result, appellant's desire for such a result does not turn appellant's proposed action into mitigation of the cumulative impact on farmland of this project and of the past, present and probable future projects properly considered [in the EIR]", Presiding Justice James Ardaiz wrote for the court. The decision worries proponents of agricultural easements, who fear that the ruling establishes a black-and-white precedent for projects that impact farmland — giving proponents the choice of no project or no mitigation. Numerous groups have asked the state Supreme Court to depublish the decision, meaning it could not be used as a precedent. In 1995, the Department of Corrections certified an EIR for a 4,180-inmate, 400-acre prison in Kern County near the existing North Kern State Prison in Delano. However, the state did not fund "Delano II." Four years later, the governor signed urgency legislation authorizing construction of Delano II. Corrections then prepared a subsequent EIR (SEIR) on a project that had grown to 5,160 inmates and 480 acres. The agency certified the EIR in June 2000. Three organizations sued Corrections, alleging several violations of the California Environmental Quality Act (CEQA). The Kern County Superior Court kicked out two of organizations — Critical Resistance and the Prison Law Project — because they lacked standing. But Friends of the Kangaroo Rat was allowed to proceed with the litigation. Eventually, Kern County Superior Court Judge Roger Randall upheld the EIR except for the an analysis of the cumulative impact of farmland conversion. The Department of Corrections then revised the cumulative impacts analysis (RCIA), adopted a new SEIR in December 2001 and asked Judge Randall to dismiss the lawsuit. In April 2002, Randall ruled that the RCIA was acceptable and he dismissed the lawsuit. Friends of the Kangaroo Rat appealed. In a partially published opinion, the Fifth District upheld the lower court's decision. The Fifth District published only the portion of its opinion addressing the issue of farmland conversion. The SEIR found that the cumulative impact on farmland conversion from the prison and from past, present and probable future projects was a significant impact that could not be mitigated. Friends of the Kangaroo Rat commented on the SEIR when the document was circulating, saying the conclusion was not supported by evidence in the record. Friends suggested creating agricultural easements as a mitigation. A response in the final SEIR called the suggestion "novel" and said an easement would not mitigate the impact because it would neither create new farmland nor compensate for the loss of farmland. The SEIR also stated that creating new farmland on the valley floor was infeasible because it would likely impact habitat for rare species such as the Tipton kangaroo rat, and that reverting developed land to farmland was also infeasible. Friends made its same arguments to the Fifth District but got no further. "The CDC correctly observed that once the prison is built and the 480 acres of farmland at that site have been converted to what the RCIA calls ‘an institutional use' (i.e., a prison), the 480 acres of farmland will be gone," Justice Ardaiz wrote. "Similarly, when the 2,300 acres of past, present and probable future projects are completed, 2,300 acres of farmland will be gone. The only option for ‘mitigating or avoiding the project's contribution to' loss of farmland would be to not build the prison. This is in essence the ‘No project alternative' which was required to be discussed in the SIER and which was in fact discussed." Even if farmland easements were deemed to be mitigation, the court continued, Corrections explained why they easements were not feasible. "A public agency ‘need not, under CEQA, adopt every nickel and dime mitigation scheme brought to its attention or proposed in the project EIR,'" Ardaiz wrote, citing A Local & Regional Monitor v. City of Los Angeles, (1993) 12 Cal.App.4th 1773, 1809 (see CP&DR Legal Digest, July 1993). In the longer but unpublished portion of its opinion, the Fifth District rejected Friends' arguments regarding water and traffic impacts. The court said the water concerns were "deemed waived" because they were not raised when Corrections was preparing and reviewing the environmental documents. The cumulative impacts on traffic also had not been raised administratively, the court ruled. Besides, the court held, the SEIR adequately addressed the cumulative traffic impacts. Since the Fifth District issued its ruling, a number of environmental, open space and farming groups — including both the California Farm Bureau Federation and the Sierra Club — have urged the state Supreme Court to depublish the decision. Agricultural easements have been proven to be successful mitigation for development that converts farmland to urban use, said Alvin Sokolow, a University of California, Davis, professor and authority on agricultural easements. Properly placed easements can prevent the additional loss of farmland, said Sokolow. Several cities and counties in California require developers that build on farmland to acquire farmland easements "This decision basically removes the mitigation option," said Sokolow, who has asked the Supreme Court to depublish the decision. Meanwhile, development groups and the League of California Cities have urged the state high court to leave the decision alone. As of late December, the Supreme Court had not issued a ruling. The Case: Friends of the Kangaroo Rat v. California Dept. of Corrections, No. F040956, 2003 DJDAR 10597. Filed August 18, 2003. Partial publication ordered September 16, 2003. The Lawyers: For Friends: Babak Naficy, (310) 473-8899. For the state: Meg Halloran, attorney general's office, (916) 323-8549.