Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Super. Ct. No. 306771 William A. Mayhew, Judge.
Trutanich • Michel, C. D. Michel, Glenn S. McRoberts and Thomas E. Maciejewski for Plaintiff and Appellant.
Law Office of Marilyn Kaplan and Marilyn Kaplan for Defendants and Respondents.
OPINION
DAWSON, J.
This court previously determined that activities related to the decision of Yosemite Community College District (District) to close and remove a shooting range from Modesto Junior College’s (MJC) west campus constituted a “project” for purposes of the California Environmental Quality Act (CEQA). (Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629 (ACE I).) As a result, we directed District to conduct an initial environmental study of the whole of the action that constituted the project.
Public Resources Code section 21000 et seq. All further statutory references are to the Public Resources Code unless otherwise indicated.
Association for a Cleaner Environment (ACE) now challenges the adequacy of the initial study completed by District, claiming it failed to comply with the requirements of CEQA and this court’s directions in ACE I. Specifically, ACE contends District did not study the whole of the activity that constituted the project because District failed to consider (1) some of the environmental impacts related to the transfer of operations to the Modesto Police Training Center range and (2) the environmental impacts related to the transfer of operations to other ranges.
The record shows that District’s evaluation did not consider certain aspects of the transfer of operations to the Modesto Police Training Center and other facilities and improperly relied on an initial study prepared in 1999 for the Modesto Police Training Center. In particular, District (1) did not evaluate the potential environmental impacts of the transfer of some classes to the range at Laird Park and (2) improperly relied on the traffic analysis in the 1999 initial study even though (a) the peak hourly traffic that the classes might generate at the Modesto Police Training Center exceeds the levels considered in the 1999 initial study and (b) the 1999 initial study did not analyze the potential change in traffic on District’s campus. In addition, the project description in the notices of intent was inadequate.
Under CEQA, the evaluation conducted during the course of an initial study must consider all of the activities that constitute the project. Because District’s evaluation failed to comply with this requirement of CEQA, we have little choice but to reverse and direct District to comply.
Accordingly, the denial of ACE’s renewed request for a peremptory writ of mandate is reversed and the matter remanded for an inquiry into ACE’s standing to seek a writ of mandate and, if standing is established, for further proceedings consistent with this opinion.
FACTS AND PROCEEDINGS
Appellant ACE’s November 2001 petition for writ of mandate alleged that it was a nonprofit organization that represented citizens concerned with the failure of District to comply with CEQA in connection with the project. The legal form of organization was not identified in the petition, and the caption referred to ACE as a nonprofit association. Subsequently, ACE described itself as a California nonprofit corporation in a writ petition filed in this court in October 2005 in case No. F049082. That writ petition concerned discovery disputes related to its request for attorney fees.
Publicly available records maintained by the California Secretary of State confirm ACE’s description by showing that ACE was incorporated under the laws of the State of California. Public information about California corporations, limited liability companies, and limited partnerships may be accessed online through the California Business Portal maintained by the California Secretary of State. (See [as of Sept. 12, 2007].) To assist members of the public in obtaining additional information and copies of records concerning these types of entities, such as statements of information filed pursuant to California Corporations Code section 1502, the California Secretary of State maintains a Web page that describes how to retrieve such records and information.
The respondents are District and the Board of Trustees of District (Board). District was responsible for the operation of MJC’s all-weather shooting range (MJC Range). District also was responsible for the decision to close and remove the MJC Range from MJC’s west campus.
In ACE I, this court determined that the closure and removal of the MJC Range, the cleanup activity, and the transfer of the operations previously conducted there to another or other facilities were all part of a single, coordinated endeavor. (ACE I, supra, 116 Cal.App.4th at p. 639.) We also determined that (1) the whole of District’s actions constituted a project for purposes of CEQA, (2) the project was not exempt, and (3) the matter was not moot. (ACE I, supra, at p. 633.) Based on those determinations, we stated the following conclusion: “We hold in this case only that the respondents have skipped an essential step in the implementation of their decision to remove the MJC Range and transfer the operations previously conducted there to another or other facilities.… We require only that respondents comply with the mandates of CEQA.” (Id. at p. 641.)
As a result, we remanded the matter “to the superior court with directions to grant [ACE]’s petition for a writ of mandate directing [District] to undertake an initial environmental study of the project.” (ACE I, supra, 116 Cal.App.4th at p. 642.)
In July 2004, the superior court filed a judgment for the issuance of a peremptory writ of mandate directing District to prepare an initial study in accordance with the opinion filed in ACE I.
In October 2004, counsel for District made recommendations to Board about preparing the initial study required by the writ of mandate. Among other things, counsel recommended that an outside expert prepare the initial study. District commissioned URS Corporation to prepare the initial study. In March 2005, URS Corporation presented a “Proposed Mitigated Negative Declaration/Initial Study” to District.
District issued a notice of intent regarding the initial study and proposed mitigated negative declaration. The notice of intent advised the public where a copy of the initial study was available for review and stated that comments from the public would be accepted between April 1 and May 2, 2005.
In June 2005, District made findings, approved the initial study and the project, and adopted the mitigated negative declaration. District also filed a notice of determination dated June 9, 2005, with the Office of Planning and Research.
A dispute arose between ACE and District over whether the initial study covered all elements of the project. Eventually, this dispute was presented to the superior court. In a ruling filed July 1, 2005, the superior court stated:
“The initial study done by [District] fails to consider the impacts, if any, of ‘… the transfer of the shooting range activity and classes to another range.…’ [¶] The claim that [District] does not have to include the third element in its initial study is simply ludicrous. The City of Modesto’s earlier [initial study] never considered the transfer of classes to the City of Modesto range.”
In an order filed August 5, 2005, the superior court vacated and set aside District’s June 8, 2005, findings regarding the project, adoption of the mitigated negative declaration, and approval of the project.
District filed a motion to reconsider the August 5, 2005, order. On September 6, 2005, the superior court revised its order by eliminating the directions that District’s findings, adoption of the mitigated negative declaration and approval of the project be vacated and stated that District should determine how it would comply with the ACE I opinion.
On October 6, 2005, the superior court filed an order that reiterated its July 2005 determinations that the initial study done by District failed to consider the impacts of the transfer of shooting range activity and classes to another range and that District was required to include this element of the project in its initial study.
District attempted to comply with the superior court’s order and the opinion in ACE I by adopting an addendum to the mitigated negative declaration and initial study. The notice of intent for the addendum included the same project description as was included in the notice of intent for the initial study: “The proposed project consists of two elements: (1) decommissioning and a lead abatement program that were completed at the MJC West Campus Firing Range in 2001, and (2) demolition and removal of the facility.” The notice of intent also stated the public comment period ran between October 4 and November 3, 2005.
The project description did not mention the transfer of shooting range activity and classes to other locations. District has not explained why this aspect of the project was excluded from the description. The adequacy of the project description is addressed in part V., post.
ACE provided written comments to the addendum in a letter dated November 2, 2005. ACE’s comments to the addendum included the assertion that the initial study, as amended, was incomplete because it failed to consider the potential environmental impact of the transfer of operations to ranges other than the range at the Modesto Police Training Center. A staff report responded to ACE’s comments and objections.
Further information about District’s addendum, ACE’s comments to the addendum, and the staff report are set forth in parts V.A. and V.B., post.
In February 2006, Board adopted the addendum, confirmed its earlier findings and approval of the initial study, and confirmed its adoption of the mitigated negative declaration.
ACE challenged Board’s actions by renewing its request to the superior court for a writ of mandate. The superior court concluded that District had complied with the July 2004 judgment and the opinion in ACE I. As a result, the superior court filed an order on February 22, 2006, denying ACE’s request.
In March 2006, ACE filed a timely notice of appeal.
DISCUSSION
I. Standing
The standing requirements applicable to a person or entity seeking a writ of mandate to correct violations of CEQA are derived from two sources. CEQA itself sets forth specific standing requirements in section 21177. (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 591 [§ 21177 enacted to limit standing of persons who could sue under CEQA].) In addition, Code of Civil Procedure section 1086 sets forth the general standing requirement for anyone who seeks a writ of mandate. (Code Civ. Proc., § 1086 [for standing to seek writ of mandate, party must be “beneficially interested” in subject matter of action]; see Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232-1237 (Waste Management) [applying Code Civ. Proc., § 1086 in CEQA matter].)
In this case, District’s appellate brief raised issues regarding ACE’s standing to bring the CEQA claims. At oral argument, the court and the parties discussed whether consolidating this appeal with a related appeal concerning attorney fees would be appropriate. This court requested and received supplemental letter briefs on whether to consolidate the appeals.
In that appeal, Association for a Cleaner Environment v. Yosemite Community College District et al., No. F051605, ACE is challenging an order denying its motion for attorney fees.
After reviewing the supplemental letter briefs and considering the heavily factual nature of the inquiry into standing, we concluded not to consolidate the appeals. In addition, we will not conduct an inquiry into, or make findings of fact regarding, ACE’s standing. (See Code Civ. Proc., § 909 [authorizing reviewing courts to take evidence and making factual determinations]; Cal. Rules of Court, rule 8.252 [findings and evidence on appeal].) This authority is exercised sparingly. (Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, 308.)
For purposes of this appeal, we will assume that ACE has standing to pursue the CEQA claims because we cannot determine conclusively, one way or the other, whether ACE has standing. That determination will have to be made by the superior court on remand. Furthermore, that determination must be made before the superior court issues a writ of mandate pursuant to section 21168.9, subdivision (b).
Accordingly, on remand the superior court shall conduct an inquiry into the standing issue, make findings, and reach a determination as to ACE’s standing (1) as an entity “beneficially interested” for purposes of Code of Civil Procedure section 1086 or (2) under the public interest exception. If ACE establishes that it has standing, the superior court shall issue a writ of mandate. If ACE fails to establish that it has standing, the superior court shall not issue a writ of mandate.
The discussion that follows sets forth some general principles applicable to questions of standing and explains why the record is insufficient for this court to determine whether ACE has standing.
A. General Principles
Generally, the question of standing is raised when the standing allegations contained in the petition for writ of mandate are denied in the answer. (E.g., California Aviation Council v. County of Alameda (1988) 200 Cal.App.3d 337, 345.) Here, both the petition and the answer addressed standing.
When the issue of standing is litigated in the superior court, an appellate court reviews the superior court’s findings under the substantial evidence standard. (Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1137.)
In this case, the questions of standing under Code of Civil Procedure section 1086 or under the public interest exception were not litigated in the superior court. As a result, there are no findings for U.S. to review. The absence of findings, however, does not mean we cannot consider questions of standing. The issue of standing is jurisdictional and, therefore, may be raised at any time during the proceedings. (Waste Management, supra, 79 Cal.App.4th at p. 1232.) In particular, it may be raised for the first time on appeal. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 2:81.1, p. 2-25.)
Accordingly, we will review the parties’ arguments and examine the record to determine if it contains sufficient evidence for U.S. to reach a determination regarding ACE’s standing to bring the CEQA action.
B. Arguments Raised on Appeal
The issues concerning standing under Code of Civil Procedure section 1086 and the public interest exception emerged when, in connection with disputes concerning ACE’s motion for attorney fees, District learned that an affiliate of the National Rifle Association (NRA) had provided funding to ACE for the lawsuit.
The superior court denied the motion for attorney fees in a decision filed October 6, 2006. The superior court explicitly found “that the predominant reason this legal action was brought was to promote a private legal interest rather than a public interest.” ACE’s appeal from that ruling currently is pending before this court in Association for a Cleaner Environment v. Yosemite Community College District et al., No. F051605.
On appeal, ACE confirmed this relationship with NRA in a certificate of interested entities or persons filed with its appellant’s opening brief. The certificate states that a nonprofit endowment fund administered by NRA will seek reimbursement of a donation it made to ACE if ACE recovers attorney fees in this litigation.
District’s respondent’s brief refers to the recently learned information about ACE’s relationship with NRA and asserts that it raises serious issues regarding ACE’s standing and the credibility of ACE’s contentions under CEQA. In particular, District argues that the interests of ACE and NRA implicated by the closure of the MJC Range were not environmental and therefore were not within the “zone of interests” protected by CEQA. (Waste Management, supra, 79 Cal.App.4th at pp. 1234-1235.) Based on its conclusions about ACE’s interests, District contends that ACE lacks standing.
In response, ACE contends that it has standing on two grounds. First, ACE contends that one of its members, Donald G. Clark, has a direct interest in the environmental issues raised, and ACE has standing to assert the interests of a member without naming that member as a party to the lawsuit. Second, ACE contends that it has standing to assert a public interest and, therefore, it falls within an exception to the beneficial interest requirement for standing set forth in Code of Civil Procedure section 1086.
C. Evidence in the Record
Clark and ACE were named as petitioners in the verified petition for writ of mandate filed in November 2001. The verification was signed by Clark and stated he resided in San Joaquin County. Paragraphs 1 and 2 of the petition for writ of mandate included factual allegations related to standing and the conclusory allegation that ACE had standing to bring the petition. In particular, ACE alleged it was “a non-profit environmental watchdog organization dedicated to the preservation and protection of the environment and compliance with applicable environmental laws. ACE represents citizens concerned with the failure of [District] to comply with CEQA.”
District’s August 2002 answer alleged that ACE and its members lacked a beneficial interest sufficient to confer standing and ACE did not represent a public interest. By September 2002, Clark had filed a notice of dismissal and ACE was the sole remaining petitioner.
ACE’s contention about the interests of a member is supported by the October 2002 declaration of Clark, which stated: “1. I am a resident of the San Joaquin Valley of California. [¶] 2. I was employed as a professor for the Administration of Justice Department at the Modesto Junior College for 30 years. I am retired from this position and, instead, am a Professor Emeritus for … District. [¶] 3. I am a current member of [ACE] and at all times material hereto.” The declaration did not describe the nature of Clark’s membership.
For instance, it did not state that he was a member as that term is used in Corporations Code section 5310.
D. Analysis
1. Beneficial interest
District argues that ACE pursued this lawsuit to further NRA’s political agenda and did not pursue it to protect the environment. This argument presents the question whether ACE’s non environmental interests bar it from showing that it has an interest sufficient to qualify as a party beneficially interested under Code of Civil Procedure section 1086.
First, we note that while parties in general are motivated by their interests, subjective motivation and a party’s beneficial interests are not the same thing. (See generally Selmi, Themes in the Evolution of the State Environmental Policy Acts (2006) 38 Urban Lawyer 949, 994-997 [mixed and ulterior motives of plaintiffs in environmental actions].) It is far easier for courts to analyze interests than to discern a party’s subjective motivation. (Id. at p. 997.)
The statute itself refers to a “party beneficially interested” and does not refer to a party’s motives. (Code Civ. Proc., § 1086.) Thus, the focus on a party’s interests is required by the express language of the statute.
Second, we conclude that the fact a party has non environmental interests does not necessarily bar that party from establishing that it also has a beneficial interest that falls within the zone of interests protected by CEQA. (See Waste Management, supra, 79 Cal.App.4th at pp. 1233-1234 [second prong of beneficial interest test is whether the interest plaintiff raises is within zone of interests protected by CEQA].) Therefore, the fact that ACE has non environmental interests does not operate as an automatic bar to ACE showing it has an interest sufficient to achieve standing in this case.
Third, whether ACE, as a nonprofit corporation, has a beneficial interest sufficient to establish standing involves the resolution of factual issues. ACE argues it may assert the beneficial interest of its members to establish its standing. Assuming for the sake of argument that a nonprofit corporation is treated like an association and may have standing solely as a representative of a member, then ACE must meet the following three-part test:
“‘[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ [Citations.]” (Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 673.)
In this case, ACE has made conclusory allegations as to its purpose as an organization, but the existence and nature of an entity’s purpose presents a question of fact that we will not address in the first instance on appeal.
If, alternatively, a nonprofit corporation such as ACE may not rely on a member’s interests and is required to show that its own interests are direct and substantial (see Waste Management, supra, 79 Cal.App.4th at p. 1233 [stating first prong of beneficial interest test requires plaintiff’s interest be direct and substantial]), the existence of those interests and whether they are sufficiently direct and substantial are questions of fact that are best addressed in the first instance in the superior court.
In summary, the record does not contain sufficient information to permit this court to determine conclusively that ACE has standing as a party beneficially interested for purposes of Code of Civil Procedure section 1086.
2. Public interest exception
Courts have recognized a public interest exception to the beneficial interest requirement contained in Code of Civil Procedure section 1086. (E.g., Burrtec Waste Industries, Inc. v. City of Colton, supra, 97 Cal.App.4th at p. 1137.) This exception may confer standing where a public right is involved and the writ of mandate seeks to enforce a public duty. (Ibid.) Under this exception, a property owner, taxpayer, or elector who establishes a geographic nexus to the site of the challenged project has standing to sue for alleged CEQA violations. (Ibid.)
Whether a corporation may be granted standing under the public interest exception, sometimes called “citizen standing,” is resolved based on the particular circumstances presented. (Waste Management, supra, 79 Cal.App.4th at p. 1238.) The relevant factors identified in Waste Management were discussed mostly recently by the Second Appellate District in Regency Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153 Cal.App.4th 825, 829-830.
The exercise of jurisdiction under the public interest exception involves the exercise of discretion by the court. (Driving Sch. Assn. of Cal. v. San Mateo Union High Sch. Dist. (1992) 11 Cal.App.4th 1513, 1518.) We conclude that the superior court is better situated to make the necessary findings of fact, weigh those facts, and exercise this discretion.
3. Summary
This court is not able to determine whether ACE has standing to bring this CEQA action under the beneficial interest test or the public interest exception. On remand, the parties should present the relevant facts to the superior court and the superior court shall determine whether ACE has established it has standing before issuing any writ of mandate.
II. Appellate Review
A. Role of Appellate Court in CEQA Matters
In CEQA proceedings, appellate courts independently review the agency’s decision. In other words, the appellate court is not bound by the superior court’s findings, and it applies the same scope and standard of review to the agency’s decision that was applicable in the superior court. (County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544, 1577-1578.)
In this case, our role in reviewing District’s attempts to comply with CEQA is relevant to arguments raised by ACE regarding the binding effect of certain determinations made by the superior court. We are not bound by those determinations during the course of our independent review. (County Sanitation Dist. No. 2 v. County of Kern, supra, 127 Cal.App.4th at pp. 1577-1578.) Therefore, we reject ACE’s arguments regarding res judicata and the impact of the superior court’s determinations.
B. Standard of Review
District’s findings, adoption of a mitigated negative declaration, and approval of the project are subject to review under section 21168.5. (E.g., County Sanitation Dist. No. 2 v. County of Kern, supra, 127 Cal.App.4th at pp. 1577-1578 [negative declaration relating to adoption of ordinance].) In addition, the procedures for traditional mandamus set forth in Code of Civil Procedure section 1085 are applicable. (County Sanitation Dist. No. 2 v. County of Kern, supra, at p. 1578; see Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 772-773 [traditional mandamus, not administrative mandamus, applicable].) Section 21168.5 provides:
“In any action or proceeding … to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with [CEQA], the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.”
In this appeal, ACE contends that District abused its discretion by failing to proceed in the manner required by law. More specifically, ACE contends that District failed to follow procedural and substantive requirements of CEQA that apply to the adoption of negative declarations.
III. The Project’s Scope Included the Transfer of Operations
The scope of the CEQA project identified in ACE I included the transfer to other facilities of operations previously conducted at the MJC Range.
A. Background from ACE I about the Transfer of Range Operations
The decision in ACE I makes a number of references to the transfer of activities from the MJC Range. Not all references acknowledged that the activities previously conducted at the MJC Range may have been transferred to more than one location. For example, the opinion stated: “[W]e conclude that the closure and removal of the MJC Range, the cleanup activity, and the transfer of shooting range activity and classes to another range are all part of a single, coordinated endeavor.” (ACE I, supra, 116 Cal.App.4th at p. 639.) Later this conclusion was restated as: “The whole of the action involved in this case includes the removal of the MJC Range and the transfer of operations to the city range.” (Id. at p. 640.)
We distinguish between use activity and transfer activity. ACE I used the word “transfer” in a broad sense, so that it encompasses the use of other facilities as well as the activity necessary to (1) relocate the operations for one location to another and (2) continue to use the latter location. Therefore, the transfer of operations to the Modesto Police Training Center includes more activity than just the use of the range at that facility. For example, vehicle traffic on and leading away from the campus is part of the transfer but is not part of the use of the range at the Modesto Police Training Center.
Other statements were more expansive. For instance, in the paragraph labeled “Conclusion” at the end of the Discussion in ACE I, we stated that “the respondents have skipped an essential step in the implementation of their decision to remove the MJC Range and transfer the operations previously conducted there to another or other facilities.” (ACE I, supra, 116 Cal.App.4th at p. 641.)
The idea of a displacement future action, which is an idea acknowledged and used in the California Supreme Court’s most recent CEQA decision discussing the scope of a project and the resulting environmental effects, could be utilized here to describe the operations previously conducted at the MJC Range. (See Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 382-383 [displaced development was a reasonably foreseeable effect of land use plan].) Specifically, the operations that would have been conducted at the MJC Range but for the decision to close that range could be described as activity that was displaced from the MJC Range to other locations as a result of the range closure.
In addition to the foregoing statement from the “Conclusion” in ACE I, District’s respondents’ brief in ACE I, which it filed in 2003, made it clear that operations previously conducted at the MJC Range were conducted subsequently at a number of different locations. In particular, page 32 of that brief stated: “The District terminated its firearms educational and training program at the District firing range facility and altered the program by deciding to have it provided at other training facilities, including the new City range.” Similarly, page 15 of that brief included the statement: “Since the closure of the District range, several local firing ranges have been used for District firearms classes, including the City of Turlock range in Spring 2002. (JA V: 913-914.)”
Accordingly, the parties and this court have long known that after the MJC Range was closed, the activities conducted there were moved to more than one location. Consequently, the idea that the CEQA project included the transfer of operations previously conducted at the MJC Range to other facilities has been long established in this case.
B. After Remand—District’s Initial Study and Addendum
After the remand ordered in ACE I, District commissioned the preparation of an initial study. URS Corporation prepared a proposed mitigated negative declaration and initial study in March 2005. ACE objected to the initial study claiming it (1) did not accurately describe the elements of the project because it omitted the transfer of classes to the new range at the Modesto Police Training Center and (2) failed to evaluate the environmental impacts resulting from the transfer.
The superior court agreed with ACE and, in a ruling dated July 1, 2005, found: “The initial study done by [District] fails to consider the impacts, if any, of ‘… the transfer of the shooting range activity and classes to another range.…’” The superior court reiterated this finding in an order filed on August 5, 2005, and in an October 2005 order that modified the August order.
District decided to address the deficiency in the initial study by creating a 10-page addendum. District issued a notice of intent related to the addendum that (1) used the same two-element project description set forth in the notice of intent relating to the initial study prepared by URS Corporation (see part VII. and fn. 24, post) and (2) stated the public review and comment period ran from October 4 to November 3, 2005.
The addendum included a description of the classes transferred to the Modesto Police Training Center. It also stated that the use of that range by the classes and by the Modesto Police Department was within the estimated annual usage projected in the initial study and mitigated negative declaration prepared by City of Modesto in 1999 in connection with the approval of the Modesto Police Training Center. The addendum concluded that the “transfer of classes to the City of Modesto range is therefore well within the usage that was projected in the City study and no [sic] there are no additional impacts.”
This description in the addendum did not mention the two community services classes that District’s March 7, 2001, press release stated would be held at the new range.
IV. Reliance on Initial Study of Modesto Police Training Center
ACE contends that District improperly relied on the 1999 Modesto initial study to support its determination that the transfer to classes to the Modesto Police Training Center range would not have a potentially significant effect on the environment.
The CEQA Guidelines (Guidelines) explicitly authorize an agency to reference an earlier negative declaration in its initial study. (Guidelines, § 15063, subd. (d)(3).) An agency’s reliance on an earlier negative declaration is appropriate if that document provides “some evidence to support” the finding made by the agency. (Ibid.)
The “CEQA Guidelines” refers to the regulations codified in title 14, section 15000 et seq. of the California Code of Regulations which have been “prescribed by the Secretary for Resources to be followed by all state and local agencies in California in the implementation of [CEQA].” (CEQA Guidelines, § 15000.)
ACE contends that District’s reliance on the Modesto initial study was improper because, as found by the superior court, the “City of Modesto’s earlier report never considered the transfer of classes to the City of Modesto range.”
In response, District argues that its use of the range at the Modesto Police Training Center is within the parameters of use considered by the Modesto initial study and, therefore, it did not abuse its discretion by relying on the Modesto initial study. For instance, District’s initial study also relied on the Modesto initial study for part of its evaluation of impacts on traffic: “Operations formerly conducted at the MJC range, which ceased with the closure of the range, have been transferred to the new Modesto Police Department range. Traffic impacts of the new range were addressed in the Initial Study/Mitigated Negative Declaration prepared for that project in 2001 and were found to be less than significant.”
The year stated, 2001, is wrong. The recirculated initial study and mitigated negative declaration was issued in January 1999. The Modesto City Council adopted the mitigated negative declaration in a resolution dated July 18, 2000.
The specifics of District’s use of the range at the Modesto Police Training Center were reflected in an April 2001 amendment to a joint powers agreement. It is obvious that the Modesto initial study issued in January 1999 and adopted in 2000 could not have evaluated specific details that were not finalized until 2001.
Because the Modesto initial study could not have included an evaluation of all of the operations transferred from the MJC Range, we consider whether District still could rely on that environmental document. We will phrase this question using terms from Guidelines section 15063, subdivision (d)(3) and determine whether the Modesto initial study is “some evidence to support” District’s implicit finding that the transfer of operations would not result in a significant environmental impact. In particular, we will consider environmental impacts related to range usage and traffic.
We interpret the phrase “some evidence to support” to mean that District may rely on the Modesto initial study to the extent that activity constituting the current CEQA project, when considered with the current level of activity at the Modesto Police Training Center, falls within the parameters of activity covered by the earlier initial study. Restated from the opposite perspective, District may not rely on the Modesto initial study to reach conclusions about the impact of activity that exceeds the level of activity actually addressed by the Modesto initial study. Accordingly, we will consider whether the transfer of operations results in a volume of range usage and a type or volume of traffic that was beyond that considered in the Modesto initial study.
A. Use of Range at Modesto Police Training Center
Based on the foregoing principles, if the uses transferred to the range at the Modesto Police Training Center fall within the volume of use considered in the Modesto initial study, then District’s initial study may rely on the Modesto initial study in connection with District’s evaluation of the impacts resulting from the uses transferred.
For instance, certain uses of the range for shooting were covered by the Modesto initial study. The project description stated: “The range will be used for live fire of hand guns, rifles and shotguns. It is estimated that maximum day use of the facility would be about 500 persons at the facility (a once or twice a year occurrence). [¶] Average use of the facility is estimated to be about 40 persons per training day. It is estimated that the facility would be in use between 100-200 days per year.” (Underscoring in original.)
To rely on the Modesto initial study, District must determine that the volume of range usage and traffic associated with the transfer of operations and activities previously conducted at the MJC Range to the Modesto Police Training Center, when added to the current levels of range usage and traffic, fall within the level evaluated in the Modesto initial study. It is self-evident that if the transfer creates levels of range usage and traffic that exceed that evaluated in the Modesto initial study, District may not conclude the additional range use and traffic were subject to a prior environmental review and that further review would be redundant.
Our discussion of the volume of range usage will go no further because (1) District’s addendum contains ambiguities and may contain errors in calculating the volume of use that was transferred to the Modesto Police Training Center and (2) this matter will be remanded on other grounds. Those ambiguities and errors, some of which are described in part V.A., post, should be corrected in any initial study prepared on remand.
B. Traffic Impacts Near the Modesto Police Training Center
The Modesto initial study addressed traffic impacts and concluded that an average training day would generate peak day traffic of about 40 vehicles or a total of 80 vehicle trips, and this level of traffic would have a less than significant impact. The discussion of traffic also included the following: “The City’s Transportation Planner has reviewed the estimated traffic generation and indicated that the peak hour generation of 40 vehicle trips for which a site access study is required.” We note that the Modesto initial study (1) estimated peak day traffic for the facility at 80 vehicle trips and (2) referred to a level of peak hour traffic of 40 vehicle trips as a level that would require more study.
We interpret this sentence to mean the planner indicated that the peak hour traffic generation for which a site access study was required was 40 vehicle trips.
Peak hour traffic of 40 vehicle trips is important here because that number coincides with the number of cadets in each academy in the Criminal Justice Training program. Thus, if each cadet were to drive a vehicle to a firearms instruction class, 40 vehicles as well as a vehicle carrying equipment would converge on the Modesto Police Training Center for the start of a class. If Modesto police officers and others are able to use the range at the same time as the class, then the peak hour traffic of 40 vehicle trips could be exceeded.
For example, if the average of 40 users per day is distributed over an eight-hour day, then that averages about five users per hour. If an instructor drove in the vehicle with the equipment, there could be 46 vehicle trips within the hour (or less) before the start of a class.
Therefore, the number of vehicle trips that a Criminal Justice Training class potentially could generate in an hour exceeds the level of traffic contemplated by the Modesto initial study. Furthermore, that potential level of hourly traffic exceeds a threshold specifically identified in the Modesto initial study as a level that would require further study. Therefore, District may not rely on the analysis of traffic impacts and related finding contained in the 1999 Modesto initial study.
Consequently, District’s initial study and addendum are inadequate under CEQA because they, and the document they incorporated, failed to evaluate the potential impact on traffic near the Modesto Police Training Center that the transfer of operations might have. Furthermore, this inadequacy is not cured by information contained elsewhere in the administrative record because the remainder of the record does not show that such an evaluation was conducted. (See Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1347-1348 [omission of information relied upon by agency during initial study is defect that can be cured by court’s review of materials in administrative record; thus, omission in initial study does not necessarily invalidate negative declaration].)
C. Traffic Impacts at MJC Campus
Another potential traffic impact not considered by the Modesto initial study concerns traffic on the MJC campus. The transfer of operations to the Modesto Police Training Center may generate traffic on the MJC campus in the form of vehicles going to and returning from the range. District may not rely on the Modesto initial study to address the potential environmental effects of this change in traffic. Therefore, District must evaluate those potential environmental effects as part of its own initial study.
District’s initial study and addendum did not include such an evaluation. This omission is not automatically a reversible error. (See Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at pp. 1347-1348.) The remainder of the record, however, does not cure this omission by demonstrating that such an evaluation was undertaken by District. Accordingly, District failed to comply with CEQA when it did not consider the potential impact to traffic on campus resulting from the transfer of operations.
At oral argument, counsel for District argued that there were no such traffic impacts at the MJC campus based on the following representations of fact. Students who drive to the Modesto Police Training Center to attend firearms instruction classes are starting from diverse locations, not the MJC campus. Consequently, there is no significant change in traffic because these students, instead of driving to the MJC campus, are driving to the Modesto Police Training Center. We cannot accept counsel’s representations of fact as a substitute for District actually performing an analysis of the traffic impacts as part of its initial study. Nor can we accept those representations as accurate.
If counsel’s factual scenario is accurate, it may support a finding of greater vehicle traffic at the Modesto Police Training Center just before the start of a class (see part IV.B., ante) because it might be more difficult for cadets to ride share.
First, District did not provide any references in the record to indicate that this type of analysis of student transportation had been done in connection with the initial study or the addendum. Second, District did not provide any reference to information in the record from which these conclusions about traffic on campus could be inferred. Third, information in the record indicates that student transportation to another range raised concerns and those concerns support inferences that are not consistent with counsel’s representation of the facts. The minutes from the April 10, 2001, meeting of the Board included the following comment about closure of the MJC Range: “Amelda McCracken (MJC student) asked how the college was going to provide transportation to the new range which is about 15 miles away from campus. Chancellor Fisher said that issue would be addressed.” Similarly, the minutes from the October 15, 2001, meeting of the Board included a comment about student transportation: “Mr. Mitchell surfaced the concern of transportation to the new range. The Chancellor said that if transportation becomes a problem for students it will be addressed.” These references in the administrative record indicate that (1) it might not be as simple for a student to get to the Modesto Police Training Center as it is for the student to get to the MJC campus and (2) vehicle trips of students going to the Modesto Police Training Center might start from the campus.
For example, moving the shooting instruction classes off campus would affect students who had other classes scheduled on campus either before or after the firearms instruction classes.
Based on the foregoing, it is clear that District failed to consider the impacts on traffic near campus that would result from the closure of the MJC Range and the transfer of classes and other activities to other locations. Furthermore, the information available in the record does not establish that the omission of such an evaluation was not prejudicial.
D. Conclusion
In any initial study conducted on remand, District must establish that the range usage and traffic levels occurring at the Modesto Police Training Center as a result of the transfer of operations previously conducted at the MJC Range are within the volume of range usage and traffic levels evaluated in the Modesto initial study and, if not, it must conduct a further environmental review of those topics to comply with CEQA. Also, District must evaluate independently the significance to the impact on traffic, if any, near the MJC campus.
V. Use of Laird Park and Other Ranges
Before addressing the positions taken by the parties concerning the use of Laird Park and other ranges, we will address a more fundamental concern.
A. Ambiguity Regarding Use of Other Facilities
A troublesome aspect of District’s initial study, addendum and the papers it has filed in court is the failure to present an internally consistent description of the transfer of classes, activities, and operations to locations other than the Modesto Police Training Center.
Page 7 of the initial study made the following broad statement: “In the fall of 2002, the firing range at the new Modesto Police Training Center opened, and all activities that had been conducted at the [MJC] Range, including [District] firearms classes, were relocated to the new range.” (Italics added.)
A March 1, 2001, memorandum to District’s chancellor described the utilization of the MJC Range as including (1) Criminal Justice Training Academy classes, (2) Administration of Justice classes taught by Mr. Clark, (3) qualification of about 300 officers of the Modesto Police Department two times per year, (4) use by the Stanislaus County Consolidated Sheriff’s Department, (5) qualification of about two or three parole officers of the California Department of Corrections each semester, (6) qualification of the security officers of the Gallo Winery, (7) qualification of less than 10 arson investigators of the Stanislaus County Fire Department, (8) community services classes, “Handgun for Men” and “Handgun for Women,” taught by security officers.
A summary prepared for the Board’s February 15, 2006, meeting appeared to qualify the statement in the initial study reducing the breadth of activity relocated to the Modesto Police Training Center: “After the closure of the [MJC] range, several local firing ranges were used for firearms classes, including the Sheriff’s Office range at Laird Park and the City of Turlock range. Since the opening of the City range in August 2002, all Criminal Justice and Administration of Justice firearms classes have been held there.”
The addendum went further than the initial study in describing the locations to which activities were transferred. The following two excerpts from the addendum are the only references to the transfer of activities and classes to locations other than the Modesto Police Training Center. Under the heading “Factual Background,” the addendum included the following paragraph:
“Based upon the information regarding safety and liability issues, the [MJC] range was closed in July 2001. After the closure of the [MJC] range, several local firing ranges were used for District firearms classes, including the Sheriff’s Office range and the City of Turlock range. Since the opening of the City range in August 2002, all Criminal Justice training classes and Administration of Justice firearms classes have been held there, as anticipated by the [Joint Powers Agreement] members.” (Italics added.)
Later, the addendum contradicted the statement that all criminal justice training classes were conducted at the Modesto Police Training Center after it was opened. On page 8, the addendum stated that the criminal justice training classes are given through the Criminal Justice Basic Training Academy, which is offered three times a year. The addendum then mentioned the academies and Laird Park as follows:
“Each Academy includes 14 days of shooting instruction. Ten (10) of the days take place at the City range and four (4) days take place at an alternate facility, Laird Park, owned by Stanislaus County. A total of approximately 1,200 uses annually on the City range results from the instruction activity of the Criminal Justice Training classes (40 cadets × 3 academies × 10 days = 1200).”
This statement clearly implies that four days of shooting instruction for all three academies held in a year would not be held at the Modesto Police Training Center.
Because of the ambiguity and apparent contradiction in the foregoing documents, this court sent a letter to counsel before oral argument that pointed out the ambiguities and stated counsel should be prepared to answer questions in an attempt to resolve that ambiguity. Counsel for District filed a letter response on May 30, 2007, that stated the range at Laird Park had been used on four days when there was a scheduling conflict. Specifically, the letter stated: “This conflict only involved a Criminal Justice Training program class conducted by the Sheriff’s Office, and the decision to use the Laird Park Facility for those class sessions was made by the Sheriff’s Office and the Modesto Police Department personnel in charge.”
This sentence may imply that District has no responsibility to evaluate the use of the other range because a third party, not District, made the decision to use the other facility. CEQA, however, may impose such a responsibility. In particular, an initial study must consider the indirect environmental impacts of reasonably foreseeable reactions of third parties to a CEQA project. (See fn. 21, post.)
The letter simply adds to the ambiguity because it is not clear whether the conflict occurred in only one academy. On the one hand, if the conflict occurred in only one academy, then the addendum misstates the number of classes that are being held each year at the Modesto Police Training Center. The misstatement occurred because the addendum calculated annual use by stating that only 10 of the 14 classes from each of the three yearly academies were held at the Modesto Police Training Center. On the other hand, if the conflict recurs for each academy, then the yearly calculations are correct and the use of other ranges is continuing.
Regardless of which version is true, District’s initial study, as amended, is not accurate. On remand, any initial study that is prepared should describe accurately the use of the Modesto Police Training Center and the use of other facilities, such as Laird Park. An accurate description would include when use of a facility began and, if applicable, when it ended.
B. Positions Taken Prior to This Appeal
During the public review period for the addendum, ACE submitted comments and objections in a letter dated November 2, 2005. ACE claimed that the addendum (1) acknowledged that the MJC Range operation was relocated to two separate facilities, the Modesto Police Training Center and the Laird Park facility owned by Stanislaus County and (2) did not consider the transfer of operations to the Laird Park facility. Page 9 of the November 2, 2005, letter included the following assertion: “The Addendum has clearly failed to provide an adequate evaluation of the potential environmental impacts of transfer of MJC operations to a second facility .…”
A staff report responded to ACE’s comments to the addendum. It addressed the comment concerning District’s use of Laird Park as follows:
“ACE contends that because some class sessions of the Criminal Justice Training Academy are held on the firing range belonging to the Stanislaus County Sheriff’s Office at Laird Park, [District] must prepare an environmental study of that range. ACE further contends that the reference to this use in the Addendum is the first time the use has been mentioned.”
The next paragraph of the staff report attempted to refute the assertion that the addendum contains the first reference to the use of the range at Laird Park. The only other paragraph of the staff report that addressed ACE’s comment about the transfer of classes to Laird Park stated:
The record shows there were many prior references to the use of Laird Park and other facilities after the MJC range was closed and before the opening of the range at the Modesto Police Training Center. As described in part V.A., ante, the addendum contained the first reference to any use of Laird Park after the opening of the Modesto Police Training Center. The initial study created the impression that such use did not occur because it stated that all activities that had been conducted at the MJC range were relocated to the Modesto Police Training Center when it opened.
“[District] holds various types of classes at more than 30 off site facilities, in addition to the City of Modesto range. CEQA does not require [District] to conduct an environmental assessment of each such off-site facility. Rather, [District] can rely on the operator of each facility that hosts such classes to determine if [District’s] use is within the scope of the approvals and authorized uses for that facility.”
District subsequently approved the addendum to the initial study and confirmed its adoption of the mitigated negative declaration.
ACE challenged District’s action by seeking a further writ of mandate from the superior court. The superior court filed an order on February 22, 2006, which included its determination that District had complied with the 2004 judgment on remand and the peremptory writ of mandate that required District to prepare an initial study in accordance with the ACE I decision. Accordingly, the superior court ordered the writ of mandate discharged and denied ACE’s renewed request for a further writ of mandate.
C. Parties’ Position on Appeal
On appeal, ACE also contends that District’s initial study, as amended, failed to consider transfer of shooting range activities to Laird Park or any facility other than the Modesto Police Training Center. ACE argues that this omission of a portion of the project rendered the amended initial study legally inadequate.
District’s brief on appeal, at pages 31 and 32, counters ACE’s argument regarding the use of other facilities in two ways. These counterpoints parallel the way the staff report responded to the comments in ACE’s November 2, 2005, letter.
First, District states that ACE was aware that classes were held at Stanislaus County’s Laird Park firing range for a long period of time because, among other things, this use was described in documents included in the joint appendix filed with this court in ACE I. District then asserts that ACE raised this concern for the first time in its comments to the addendum to the initial study. District’s brief does not state the legal relevance of its assertions and cites no legal authority.
District’s second argument is as follows:
“ACE’s argument that [District] must perform a CEQA analysis every time it uses an off-site facility for its classes is ridiculous. [District] holds various types of classes at more than 30 off site facilities, in addition to the City range.… [District] can rely on the operator of each facility that hosts such classes to determine if the [District] use is within the scope of the approvals and authorized uses for that facility.”
As with its first argument, District’s brief does not identify the legal grounds for its position and cites no legal authority.
D. Analysis of District’s Response
Prior to oral argument, this court sent counsel for the parties a letter requesting them to be prepared to address a number of points. In that letter, we pointed out the lack of legal grounds or authority for the foregoing arguments raised in District’s brief and requested that counsel be prepared to identify the legal grounds for these arguments. To illustrate for counsel what we meant by legal grounds, we included the following:
“For example, is the District contending that ACE (1) failed to exhaust its administrative remedies as required by CEQA section 21177; (2) forfeited the objection; or (3) waived the objection? (See In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [distinguishing forfeiture from waiver]; Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 149 Cal.App.4th. 892 [discussing specificity of objection in a CEQA matter needed to meet exhaustion requirement]; see also Appellant’s Appendix 586 [referencing transfers to ‘another or other facilities’].)”
A letter response filed on May 30, 2007, by counsel for District did not identify any legal grounds to support the two arguments made at pages 31 and 32 of District’s appellate brief. Nor did counsel identify any such legal grounds during the course of oral argument.
Notwithstanding the failure of counsel for District to identify a relevant legal ground for the arguments as to why it was not required to evaluate the transfers to facilities other than the Modesto Police Training Center, we have considered whether the exhaustion requirement contained in section 21177, forfeiture, or waiver applied in this case. Upon consideration, it became clear that counsel chose not to reference these as possible legal grounds for its argument because they did not apply. In light of counsel’s position, we will not set forth the details of the analysis that supports our conclusion that these legal grounds do not apply.
Alternatively, we could have deemed these arguments waived. When a litigant raises a point on appeal, but fails to support it with reasoned argument and citations to authority, an appellate court may treat the point as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see also Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [reviewing court need not discuss point merely asserted by appellant without argument or authority].)
Next, we consider the substance of each of the two arguments.
District’s first argument appears to contend that ACE should have raised the failure of the initial study to consider the transfer of activity to facilities other than the Modesto Police Training Center earlier. We cannot fault ACE for this lack of specificity in its objections to the initial study. First, ACE’s objection to the initial study challenged the exclusion of the third element of the project—namely, the transfer of the shooting range activity and classes to another range. The superior court determined that District’s position that it did not have to include the third element in the initial study was simply ludicrous. Second, ACE’s objection was not more specific because the initial study created the impression that all activities were transferred to the Modesto Police Training Center once it was opened. (See fn. 17, ante.) After District completed the addendum to expressly address the third element, it became apparent that not all of the transferred activities were being conducted at the Modesto Police Training Center. Consequently, ACE acted reasonably in making a more specific objection related to matters set forth for the first time in the addendum.
In short, ACE cannot be criticized for failing to anticipate the inaccuracy of District’s statement in the initial study that all activities previously conducted at the MJC Range were relocated to the Modesto Police Training Center.
District’s second argument lacks merit because it begins by misstating ACE’s position. ACE has not asserted that District must perform a CEQA analysis every time District uses an off-site facility for any class it offers. ACE has explicitly acknowledged that CEQA does not impose such a broad requirement on District. Had District accurately characterized ACE’s contention, it would have realized two fundamental points: (1) ACE’s contention has nothing to do with District’s use of off-site facilities for its classes that do not involve firearms instruction and (2) the reason CEQA applies to District’s use of ranges other than the Modesto Police Training Center is that such use is a part of the activity that constitutes a CEQA project. It is axiomatic that the requirements of CEQA do not apply to action by the District that is not part of a CEQA project. In this case, the transfer of operations previously conducted at the MJC Range to facilities other than the Modesto Police Training Center falls within the third element of the CEQA project previously defined by this court.
District’s second argument contains the assertion that it can rely on the operator of each facility that hosts such classes to determine if the District’s use is within the scope of the approvals and authorized uses for that facility. This ambiguous statement is susceptible to a number of interpretations, some of which contradict the requirements of CEQA.
For example, to the extent District is asserting that it is never responsible for studying the environmental impacts of the transfer of operations to another facility because another entity operates the facility, it is in error. First, the transfer of activity to another facility involves more action than just using that facility. The transfer also involves activity undertaken by District, such as getting staff, equipment, and students to that location. Second, District is responsible for evaluating the potential direct and indirect physical changes to the environment that result from the whole of the action that constitutes its project. (ACE I, supra, 116 Cal.App.4th at p. 637.) No rule of law states that indirect environmental impacts are no longer reasonably foreseeable once control of an activity passes in whole or in part from the lead agency to a third party. Quite the opposite is true. Therefore, District’s responsibility under CEQA does not necessarily end simply because another entity operates the facility to which activity previously conducted at the MJC Range has been transferred or because another entity made the decision to transfer the activity to a facility other than the Modesto Police Training Center. Instead, District’s responsibility to evaluate the potential environmental impacts of its project is limited to that which is reasonably foreseeable, including the reasonably foreseeable environmental impacts resulting from the reactions of third parties to the project. (See County Sanitation Dist. No. 2 v. County of Kern, supra, 127 Cal.App.4th at pp. 1583-1598.)
This court has recognized that, based on the circumstances of the case, the reactions of third parties to the activity that constitutes the CEQA project may be reasonably foreseeable and, thus, indirect physical changes to the environment caused by those reactions also may be reasonably foreseeable. (County Sanitation Dist. No. 2 v. County of Kern, supra, 127 Cal.App.4th at pp. 1583-1598 [county’s ordinance restricting land application of sewage sludge to farmland was CEQA project; reasonably foreseeable indirect physical changes to environment include environmental impacts resulting from reactions of sludge generator and farmers to ordinance]; see Muzzy Ranch Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th at pp. 382-383 [displaced development, which was action by third parties, was a reasonably foreseeable effect of agency’s CEQA project, adoption of a land use plan].)
This is not to say that District’s evaluation is prevented from considering the environmental documents prepared by the entity operating the facility and incorporating such documents into its initial study. To do so, District must consider the other environmental documents and determine that they actually address the potential direct and indirect environmental impacts of the transferred activity. In this case, District made no attempt to evaluate environmental documents pertaining to the operation of the Laird Park range.
E. Conclusion
The record establishes that in preparing the initial study, as amended, District evaluated only a portion of the activity connected with the transfer of operations previously conducted at the MJC Range. District’s evaluation of the transfer of operations to the Modesto Police Training Center was limited to its reliance on the Modesto initial study, which was not broad enough to cover all aspects of the transfer. Furthermore, District did not evaluate the transfer of operations to any other facility.
Both the staff report and District’s appellate brief take the position that an evaluation of the transfer of operations previously conducted at the MJC Range to facilities other than the Modesto Police Training Center was not required. Despite taking this position, District has been unable to justify its decision to exclude from the initial study and addendum an evaluation of these transfers. This court gave District every opportunity to identify legal grounds or authority that supported its decision to exclude those matters from the initial study and addendum. None were presented. Moreover, the arguments District made were not relevant to the basic point that such transfers are part of the activity that constitutes the CEQA project that was to be evaluated in the initial study.
It follows that the environmental review performed by District did not comply with CEQA’s requirement that the whole of District’s actions that constituted the project be included in that review. (See Guidelines, §§ 15063 [initial study], 15378, subd. (a) [definition of project].)
District’s unexplained failure to comply with CEQA leaves U.S. with no choice but to reverse the judgment and remand for further proceedings.
VI. Other Substantive Deficiencies Raised
ACE also contends that the initial study, as amended, failed to address the transport of weapons across town to off-campus shooting ranges. ACE asserts that approximately 148 times per year a District employee will transport weapons in an unmarked van from the MJC arsenal to the range at the Modesto Police Training Center or Laird Park. ACE further asserts that it “is unknown whether this van also transports ammunition and whether the van or driver are properly licensed for transportation of weapons in this manner.”
ACE’s appellate brief has not identified any potential environmental impact of the transportation of weapons and possibly ammunition. Perhaps ACE is asserting only that (1) this transportation activity is part of the project—more specifically, the phase of the project that concerns the transfer of the operations that previously were conducted at the MJC Range to other locations—and (2) the vehicle trips should be included in District’s evaluation of the traffic caused by the transfer.
For purposes of this appeal, we need not examine ACE’s argument in depth. To avoid controversy about the implementation of this opinion on remand, we conclude that any transportation of weapons and ammunition from the MJC arsenal to locations where firearms classes are held is part of the activity that constitutes the project. In other words, for purposes of Guidelines section 15063, subdivision (a)(1), that activity is part of a phase of the implementation and operation of the project that must be considered in the initial study of the project.
Furthermore, we conclude that the “brief form” of “description of the project” required by Guidelines section 15063, subdivision (d)(1) need not specifically describe the transportation activity. The general reference in the project description to the transfer of operations previously conducted at the MJC Range to other locations will cover adequately any activity involving the transportation of weapons and ammunition. (See part VII., post.)
VII. Adequacy of Notice of Intent
ACE contends that the notice of intent for the addendum violated CEQA on two grounds. First, ACE contends the description of the project was inadequate because it failed to notify the public about the transfer of classes and other activities from the MJC Range to other facilities. Second, ACE contends the notice failed to state the address where the public could review documents referenced in the addendum.
A. Legal Requirements for Notice
An agency must notify the public before its final adoption of a negative declaration. Specifically, “[a]ny lead agency that is preparing … a negative declaration … shall provide public notice of that fact within a reasonable period of time prior to … adoption of the negative declaration .…” (§ 21092, subd. (a); see Guidelines, § 15072, subd. (a).)
The required public notice, known as the notice of intent, must satisfy the criteria set forth in section 21092 and Guidelines section 15072. The criteria address matters such as content, publication and delivery of the notice, and applicable time frames.
The content requirements for a notice of intent include “a brief description of the proposed project and its location.” (§ 21092, subd. (b)(1); Guidelines, § 15072, subd. (g)(1).) Also, the notice of intent must include “the address where copies of the … negative declaration, and all documents referenced in the … negative declaration, are available for review.” (§ 21092, subd. (b)(1); see Guidelines, § 15072, subd. (g)(1).)
The content requirements for notice are not strictly enforced. Section 21092, subdivision (b)(2) provides: “This section shall not be construed in any manner that results in the invalidation of an action because of the alleged inadequacy of the notice content, provided that there has been substantial compliance with the notice content requirements of this section.”
B. Brief Description of the Proposed Project
Only one published case has interpreted the statutory phrase “brief description of the proposed project.” (Maintain Our Desert Environment v. Town of Apple Valley (2004) 124 Cal.App.4th 430, 441-442.)
In this case, the same description of the proposed project was used in the notice of intent for District’s initial study as well as the notice of intent for the addendum: “The proposed project consists of two elements: (1) decommissioning and a lead abatement program that were completed at the MJC West Campus Firing Range in 2001, and (2) demolition and removal of the facility.”
ACE contends the description of the project in the notice of intent for the addendum violated section 21092 because it did not reference the third element of the project—namely, the transfer of operations previously conducted at the MJC Range to another or other facilities.
District does not disagree. Instead, District argues that “under CEQA, an addendum need not be circulated for public review, and neither a Notice of Intent nor public comment is legally required for an addendum.” District does not present the alternate argument that the project description was adequate. Specifically, District does not argue that (1) the description given satisfied the “brief description” requirement of subdivision (b)(1) of section 21092, or (2) there was “substantial compliance with the notice content requirements” within the meaning of section 21092, subdivision (b)(2).
At oral argument, counsel for District stated she did not know why the project description in the notice of intent for the addendum did not mention the transfer of operations to other locations.
Based on the parties’ positions and arguments, we consider the following question: Should this court address the adequacy of the description of the project in the notices of intent?
On the one hand, we are remanding this case because of other defects and whatever we say about the adequacy of the notices will not change that outcome. As a result, our statements might be regarded as dicta.
On the other hand, the legal question whether the project description complies with section 21092 may have practical significance because it may be disputed on remand.
It appears the Legislature was concerned with practicalities when it directed reviewing courts that had identified one CEQA violation to “specifically address each of the alleged grounds for noncompliance” with CEQA. (§ 21005, subd. (c).) In accordance with the legislative directive, we will provide guidance to the parties on the adequacy of the project description to be included in the notice of intent used on remand.
Based on the information presently available in the record, the following description appears to satisfy the “brief description of the proposed project” requirement of section 21092, subdivision (b)(1): The proposed project includes activities related to the 2001 decommissioning of the MJC West Campus Firing Range, the related lead abatement program that was completed in 2001, the demolition and removal of the facility, and the transferring of classes and other operations previously conducted there to other facilities, which include the range at the Modesto Police Training Center and the range at Laird Park.
We use the phrase “appears to satisfy” because we are not able to foresee all the facts and arguments that might be developed on remand. Also, we have assumed for purposes of this example that the use of Laird Park is recurring. We can state only that, based on the record as it currently exists, the description provided in this opinion complies with section 21092.
C. Reference to Location of Documents
ACE contends the notice of intent for the addendum violated the requirement in section 21092 that the notice set forth the address where copies of all documents referenced in the negative declaration were available for review. (§ 21092, subd. (b)(1).)
District responds by arguing that its notice of intent clearly identified the document as an addendum to the original initial study and mitigated negative declaration and, therefore, the public was made aware that another document related to the project was on file and available for review.
Our ability to provide guidance on this issue that is useful to the parties on remand is, as a practical matter, limited to noting the existence of the statutory requirement and directing that such an address be given in the notice of intent used on remand.
VIII. Directions for Remand
On remand, if the superior court determines that ACE has established that it has standing to pursue the CEQA claims (see part I., ante), the superior court shall issue a peremptory writ of mandate directing District and Board to (1) set aside the resolution or decision adopting the mitigated negative declaration, (2) set aside the resolution or decision making findings under CEQA in connection with its approval of the project, and (3) set aside the resolution or decision approving the project. (Cf. Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1200 [failure to consider whole of the project compelled Court of Appeal to overturn city’s adoption of negative declaration].)
The resolutions or decision are to be set aside, including the adoption of the mitigated negative declaration, because of an inadequate environmental evaluation. The failure to evaluate part of a project is distinguished easily from the less serious failure of an initial study to include information relied upon by the public agency in making its decision to adopt a negative declaration. (See Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at pp. 1347-1348 [failure to include information relied upon by agency in initial study is defect that can be cured and negative declaration is not necessarily invalid].) In such a situation, the relevant information and the environmental evaluation was completed, but not properly documented. Had only a documentation error occurred in this case, the remedy might not have included setting aside the negative declaration.
Because District’s initial study, as amended, was inadequate under CEQA, the superior court also shall direct District to complete an evaluation of the entire project and document that evaluation in an initial study. In the event that District decides to adopt a negative declaration or mitigated negative declaration, District shall issue a public notice that complies with the requirements of section 21092 and Guidelines section 15072.
ACE has made arguments on appeal that suggest the use of the checklist contained in Appendix G to the Guidelines is mandatory. The checklist is “only suggested, and public agencies are free to devise their own format for an initial study.” (Guidelines, § 15063, subd. (f).) Consequently, in providing directions on remand, we will not impinge upon District’s discretion to devise its own format for its initial study.
We recognize that neither this court nor the superior court is authorized expressly by CEQA to direct a public agency to exercise its discretion in a particular way. (§ 21168.9, subd. (c).) Accordingly, the superior court’s order shall contain the following sentence: “This court, like the Fifth District Court of Appeal, does not direct Yosemite Community College District to exercise its lawful discretion in any particular way.”
See 2 Kostka and Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2006) section 23.166, page 1322. The phrase “lawful discretion” means that discretion must be exercised in compliance with CEQA, the Guidelines, and other applicable laws.
Therefore, with respect to the adequacy of any description of the project that might be contained in a future notice of intent, District may choose, in its discretion, to use the description set forth in part VII.B., ante, or may choose, in its discretion, a more expansive description.
Lastly, when a superior court issues a peremptory writ in a CEQA matter, it is required to retain jurisdiction over the proceedings by way of a return to the writ. (See § 21168.9, subd. (b); e.g., County Sanitation Dist. No. 2 v. County of Kern, supra, 127 Cal.App.4th at p. 1637 [superior court directed to require public agency to respond to writ by filing a return].) Accordingly, the superior court shall direct District to file a return that notifies the superior court of the actions taken by District in response to the writ of mandate. Previously in this litigation, the superior court monitored District’s efforts to comply with the earlier writ of mandate by holding case management conferences. The statutory requirement for a return shall not be interpreted to restrict in any way the discretionary authority of the superior court to schedule case management conferences as a method for monitoring District’s efforts to comply with the writ.
DISPOSITION
The order denying appellant’s petition for writ of mandate is reversed. This matter is remanded to the superior court for further proceedings not inconsistent with this opinion. Costs on appeal are awarded to appellant.
WE CONCUR: WISEMAN, Acting P.J., CORNELL, J.
( [as of Sept. 12, 2007].)