Inadequate Administrative Record Results in Rejection of Project EIR
The importance of a complete and clear administrative record for development projects came to the forefront in a case from Merced County in which the Fifth District Court of Appeal overturned approval of a gravel mine because the administrative record was muddled. The court said it could discern little from the administrative record and, therefore, could not uphold the project's environmental impact report.
Writing for the unanimous three-judge panel, Justice Rebecca Wiseman was blunt: "When practicing appellate law, there are at least three immutable rules: First, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two. In this case, the parties totally missed the appellate mark by failing to provide an adequate record for review."
"The administrative record is large — 14 binder-sized volumes. It reads as if its preparers randomly pull out documents and threw them into binders, failing to organize them either chronologically or by subject matter," Wiseman continued. "Key findings required under CEQA [the California Environmental Quality Act] are impossible to find — let alone sufficient to enable us to determine whether they are supported by substantial evidence."
In ordering the county to set aside its approval of the project, Wiseman warned, "We iterate to anyone who will listen: CEQA has very specific findings that must be in the record. Do not ignore the requirements or, like these parties, you will find yourself … forced to start over at great public and personal expense."
The case stemmed from the county's approval of Calaveras Materials' proposal to extract aggregate from 456 acres of farmland adjacent to the Merced River, about 12 miles north of Merced. Calaveras proposed 35 years of operation in 14 phases, with processing occurring at an existing plant nearby.
The Merced County Planning Commission and, on appeal, the Board of Supervisors approved the project and an EIR. The EIR contained overriding considerations because of the project's unmitigated loss of farmland and because of impacts to habitat for the rare Swainson's hawk.
A group called Protect Our Water (POW) filed a lawsuit alleging the EIR's range of alternatives was inadequate, the EIR failed to evaluate all biological and cumulative impacts, the final document did not contain adequate responses to comments on the draft EIR, and the county's findings were not supported by substantial evidence. Merced County Superior Court Judge William Ivey ruled for the county, so Protect Our Water appealed.
In considering the appeal, the Fifth District never made it to the merits of the case. The court started to deal with the allegations regarding alternatives, but found "it is nearly impossible to locate the pertinent documents." The court refused to go further.
"POW elected to prepare the administrative record in this case," Wiseman wrote. "Therefore, the fault in the poor organization and indexing of the record plainly falls on POW. But poor organization and a deficient master index alone do not necessarily make for an inadequate record. The problems with the record here arise not simply from disorganized, inadequately indexed documents. The problems are more fundamental. The documents generated by the county are inadequate for review. … We find it inconceivable that, given the scope and magnitude of this project, the documents comprising the administrative record are so defectively drafted."
Because it could not determine whether the county made the required findings, the court reversed the lower court and overturned the project approval.
The case has received quite a bit of attention from CEQA practitioners. "The Protect Our Water decision clearly illustrates what can happen when the administrative record is not well managed," according to an update from Sacramento consulting firm Jones & Stokes. "To avoid problems with an inadequate or poorly organized record, every lead agency should consider developing a standardized administrative record protocol that establishes a consistent, uniform approach to this critical aspect of CEQA practice."
Protect Our Water v. County of Merced, No. F041200, 03 C.D.O.S. 6067, 2003 DJDAR 7592. Filed July 9, 2003.
For POW: Rose Zoia, (707) 526-5894.
For the county: Dennis Myers, county counsel (since retired), (209) 385-7564.
For Calaveras Materials: William Gnass, Mason, Robbins, Gnass & Browning, (209) 383-9334.