Merced County sued for approval of Black Diamond Aggregates mining project

Merced (January 19, 2007) – Two local environmental groups filed suit Thursday in Merced County Superior Court against the Black Diamond Aggregates project under provisions in the California Environmental Quality Act (CEQA).

San Joaquin Raptor Rescue Center and Protect Our Water challenged the Merced County Board of Supervisors’ approval on Dec. 19 of a mitigated negative for Black Diamond Aggregates, Inc., a mine close to the Merced River near Snelling owned by Reed Family Vineyards, LLC, and The Reed Leasing Group, LLC of Modesto.

The writ of mandate challenges the supervisors’ Dec. 19 adoption of the mitigated negative declaration, the General Plan amendment, rezoning, modifications to the mine reclamation plan, and major modifications to the existing mine’s conditional use permit.

Essentially, the County has permitted Black Diamond to mine up to 25 feet below the surface of a mine in the Snelling dredge tailings, originally permitted to mine only to grade level and reclaim the site as grazing land. Under Black Diamond and the County’s reclamation scheme, 25-foot deep mining pits will fill with water and we will have “open space” and “wildlife habitat” (at least until the next big flood on the Merced River).

The causes of action for the suit are Merced County’s abuse of discretion under CEQA and procedural noncompliance with CEQA and CEQA Guidelines.

Petitioners assert county abuses of discretion include:

* Failure to adequately analyze the environmental impacts of the proposal, its necessary or feasible mitigation measures, and to consider a reasonable range of project alternatives;

* Failure to consider the “fair argument” provision under CEQA that the County’s approval of this project may result in significant environmental impacts;

*Failure to adequately analyze the project’s impacts to water resources, biological resources, traffic, air quality, and failure to consider the cumulative impacts resulting from the project;

*Failure to make required mandatory findings;

*Ignoring the project’s inconsistencies with the County’s outdated General Plan.

The County ignored letters from two state and one federal resource agency that the Black Diamond project would have a significant impact on the hydrology and water supply of this area, rezoned out of the Snelling Rural Residential Center (RRC) No. 1 Residential and Agricultural zone. The project is two miles from downtown Snelling and about a half a mile from the Merced River.

The County adopted no mitigation measures on hydrology and water supply before the supervisors approved the project.

“Respondents violated their duty to prepare a legally adequate environmental impact report as required by CEQA …” petitioners said.

The petition asks the court to set aside the environmental findings and related decision by the County on the Black Diamond mine.

“This aggregate company, deeply involved with the destruction of the Tuolumne River, has now come to the Merced River and proposed a strip mine in the dredge tailings,” said Lydia Miller, president of the San Joaquin Raptor Rescue Center. “The planning department, project proponents and the supervisors tried to sneak the multiple violations of CEQA in this project through on a very crowded agenda at the end of the year despite a petition signed by 60 Snelling residents against it. This county government is encouraging outside special interests to run roughshod over its citizens and its natural resources.

“We are represented by the skilled, experienced environmental law firm of Don Mooney and Marsha Burch,” Miller added.

The petition is attached.

For further information contact:

Lydia Miller
San Joaquin Raptor Rescue Center
(209) 723-9283, ph.

DONALD B. MOONEY
MARSHA A. BURCH
Law Offices of Donald B. Mooney
Davis, California 95616
Telephone: 530-758-2377

San Joaquin Raptor Rescue Center
Protect Our Water
-----------------------------------------------------

DONALD B. MOONEY (SBN153721)
MARSHA A. BURCH (SBN 170298)
Law Offices of Donald B. Mooney
129 C Street, Suite 2
Davis, California 95616
Telephone: 530-758-2377
Facsimile: 530-758-7169

Attorney for Petitioners
San Joaquin Raptor Rescue Center;
and Protect Our Water

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF MERCED

SAN JOAQUIN RAPTOR RESCUE CENTER; ) BY FAX
and PROTECT OUR WATER )
)
) No.
Petitioners )
)
v. ) VERIFIED PETITION FOR WRIT
) OF MANDATE
COUNTY OF MERCED; MERCED )
COUNTY BOARD OF SUPERVISORS; )
and DOES 1 to 20, )
)
Respondents )
)
)
REED FAMILY VINEYARDS, LLC; )
THE REED LEASING GROUP, LLC; )
BLACK DIAMOND AGGREGATES, INC.; )
And DOES 21-40, )
)
Real Parties in Interest. )
________________________________________ )

Petitioners San Joaquin Raptor Rescue Center (“SJRRC”) and Protect Our Water (“POW”) (collectively “Petitioners”) petition this Court for a Writ of Mandate, directed to Respondents Merced County and the Merced County Board of Supervisors. Petitioners challenge Respondents’ December 19, 2006, adoption of the Mitigated Negative Declaration and approval of the amendment to the General Plan from Snelling RRC #1 Residential to Agricultural with a concurrent rezoning from Agricultural Residential (A-R) to General Agricultural (A-1), and modification of CUP-2870 to allow below grade level mining and revise the reclamation plan’s end land use from agricultural to open space for the Black Diamond mining operation (General Plan Amendment No. GPA05-009, Zone Change Application No. ZC05-010, and Major Modification No. MM05-016) (“Project”). By this Petition, Petitioners allege:
PARTIES
1. Petitioner San Joaquin Raptor Rescue Center is a non-profit group that works for preserving wildlife habitats and the environment in general in the San Joaquin Valley and Merced County area. To that end, it is involved in efforts to protect the resources of the Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. The Center also is committed to public education regarding these various issues and ensuring governmental compliance with the law of this state. The Center is composed of persons whose economic, personal, aesthetic, and property interests will be severely injured if the adoption of the project is not set aside pending full compliance with CEQA and all other environmental laws. Center members utilize and enjoy the county's and state's natural resources. The Center brings this petition on behalf of all others similarly situated who are too numerous to be named and brought before this court as petitioners. As a group composed of residents and property owners generally within the San Joaquin Valley and specifically in Merced County, the Center is within the class of persons beneficially interested in, and aggrieved by, the acts of respondents as alleged below. Members of the Center participated in the administrative processes herein, and exhausted its remedies. Accordingly, the Center has standing to sue.
2. SJRRC and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, particularly the California Environmental Quality Act (“CEQA”), Public Resources Code, sections 21000 et seq. SJRRC is affected by Respondents’ failure to prepare an environmental impact report (“EIR”) for the Project.
3. Petitioner Protect Our Water is an unincorporated association formed in 1998 for the purpose of increasing the awareness, appreciation, and preservation of the environmental resources within the Central Valley region of central California, as well as within other areas of the State of California. POW aims to protect natural resources and the environment and to uphold the integrity of environmental and land use planning and review processes. POW’s membership includes residents and property owners within Merced County and the San Joaquin Valley in general, and as such is within the class of persons beneficially interested in, and aggrieved by, the acts of respondents as alleged below. POW participated in the administrative processes herein and has exhausted its remedies, and has standing to sue.
4. POW and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, particularly CEQA. POW is affected by Respondents’ failure to prepare an EIR for the Project.
5. Respondent Merced County is a political subdivision of the State of California and a body corporate and politic exercising local government power. Merced County is the CEQA “lead agency” for the Project. As lead agency for the Project, Merced County is responsible for preparation of an environmental document that describes the Project and its impacts, and, if necessary evaluates mitigation measures and/or alternatives to lessen or avoid any significant environmental impacts.
6. Respondent Merced County Board of Supervisors is a legislative body duly authorized under the California Constitution and the laws of the State of California to act on behalf of the County of Merced. Respondent Merced County Board of Supervisors are responsible for regulating and controlling land use within the County including, but not limited to, implementing and complying with the provisions of CEQA and the CEQA Guidelines, 14 California Code of Regulations, title 14, section 15000 et seq. (the “Guidelines”).
7. Real Party in Interest Reed Family Vineyards, LLC is a California Limited Liability Company formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. Reed Family Vineyards, LLC is one of the owners of the property where the Project is located.
8. Real Party in Interest The Reed Leasing Group, LLC is a California Limited Liability Company formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. The Reed Leasing Group, LLC is one of the owners of the property where the Project is located.
9. Real Party in Interest Black Diamond Aggregates, Inc. (“Black Diamond”) is a corporation formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. Black Diamond operates the mine that received a conditional use permit allowing expansion of the mining operations as a result of Respondents’ approval of the Project. The Project also includes Black Diamond’s new reclamation plan for the expanded mining operation.
10. Petitioners are unaware of the true names and identities of DOES 1 through 20 and 21 through 40, inclusive, and sues such unnamed Respondents and Real Parties in Interest respectively, by their fictitious names. Petitioners are informed and believe, and based thereon allege, that fictitiously named Respondents and Real Parties in Interest also are responsible for all acts and omissions described above. When the true identities and capacities of Respondents and Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to include such identities and capacities.

JURISDICTION AND VENUE
11. This Court has jurisdiction over the matters alleged in this Petition pursuant to Code of Civil Procedure section 1085, and Public Resources Code section 21168.5. In the alternative, this Court has jurisdiction pursuant to Code of Civil Procedure section 1094.5 and Public Resources Code section 21168.
12. Venue for this action properly lies in the Superior Court for the State of California in and for the County of Merced pursuant to section 394 of the Code of Civil Procedure.

BACKGROUND FACTS
13. The Project site is located on Assessors Parcel Numbers 43-040-43, 43-080-06, 043-040-33 and 37 at Township 5S, Range 14E, SE1/4 of Section 7 and portion of SW1/4 of Section 8, Mount Diablo Baseline Meridian, approximately 2 miles west of the community of Snelling and 15 miles north of Merced. The site is accessible by State Route 59 with a service road connecting at the west end of the property.
.
14. The Project involves a major modification of Conditional Use Permit (“CUP”) 2870 to expand the Black Diamond mining operation by allowing the operator to mine below grade into the perched water table. The previous CUP allows for mining to grade, but not below. Thus, the Project approval results in a significant increase in the magnitude and duration of the mining activities allowed on the Project site. The modification will allow for mining to a maximum depth of 25 feet and will facilitate the removal of approximately 2.5 million cubic yards of sand and gravel material over an estimated 15 year period. The removed material will be transported to an onsite processing facility and then hauled off-site for use in construction projects.
15. The Project also includes a revision to the previously approved Reclamation Plan (required by the Surface Mining and Reclamation Act). The previous Reclamation Plan provided for an end land use of grazing. The Project modified the end land use, allowing for reclamation to open space, including a pond with island and a perimeter of natural vegetation.
16. The Project also includes a rezone and General Plan amendment. In order to continue mining on an approximately 70-acre portion of the Project site, Black Diamond sought the General Plan Amendment and Zone Change. The Project site had a General Plan designation of Snelling Rural Residential Center (RRC) No. 1 Residential and Agricultural. The site was zoned as A-1 (General Agriculture) and A-R (Agricultural Residential). The Project approved a General Plan amendment and Zone change re-designating a portion of the Project site from Snelling RRC No. 1 , Residential to Agricultural and re-zoned a portion of the Project site from A-R to A-1.
17. On June 14, 2006, the Merced County Planning Department released for public review and comment an Initial Study and Mitigated Negative Declaration for the Project. The public comment and review closed on August 12, 2006, as the comment period was extended from July 14, 2006 to August 12, 2006.
18. On December 19, 2006, Merced County, through the Merced County Board of Supervisors, adopted the mitigated negative declaration and approved the Project.
19. On December 19, 2007, Respondents filed a Notice of Determination with the County Clerk of Merced County as provided for in Public Resources Code, section 21152.

EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND INADEQUACY OF REMEDY

20. Petitioners have performed any and all conditions precedent to filing the instant action and have exhausted any and all available administrative remedies to the extent required by law.
21. Petitioners have complied with the requirements of Public Resources Code, section 21167.5 by mailing written notice of this action to the Respondents. A copy of this written notice and proof of service are attached as Exhibit A to this Petition for Writ of Mandate.
22. Petitioners have complied with Public Resources Code section 21167.6 by concurrently filing a request concerning preparation of the record of administrative proceedings relating to this action.
23. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law unless this Court grants the requested writ of mandate to require Respondents to set aside their approval of the Project and adoption of the Mitigated Negative Declaration. In the absence of such remedies, Respondents’ approval will remain in effect in violation of State law.
24. This action has been brought within 30 days of the filing of the Notice of Determination as required by Public Resources Code section 21167(c).
STANDING
25. Petitioners have standing to assert the claims raised in this Petition because Petitioners’ aesthetic and environmental interests are directly and adversely affected by Respondents’ approval of the Mitigated Negative Declaration and approval of the Project.
ARBITRARY AND CAPRICIOUS ACTIONS
26. Petitioners bring this action on the basis, among others, of Government Code section 800, and other applicable laws, which award Petitioners’ attorneys’ fees in actions to overturn agency decisions that are arbitrary and capricious, such as the decisions here in question.

FIRST CAUSE OF ACTION
Abuse of Discretion
CEQA, Public Resources Code, § 21000 et seq.

27. Petitioners reallege and incorporate herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 26 of this petition and further allege as follows:
28. Respondents have abused their discretion and failed to act in the manner required under CEQA with respect to the Project because they have failed to adequately analyze its environmental impacts, necessary or feasible mitigation measures, and a reasonable range of alternatives to the Project. Additionally, the mitigation measures adopted by Respondents are insufficient. Moreover, substantial evidence in the administrative record supports a “fair argument” that the Respondents’ approval of the Project may result in a significant impact to the environment. Conversely, Respondents have no evidence that these impacts will not be significant.
29. Substantial evidence in the administrative record supports a “fair argument” that the Respondents’ approval of the Project may result in a significant impact to the environment. The substantial evidence before Respondents demonstrates, at a minimum, that:
a. Land Use. The Project may have a significant impact to land use as the Project changes land use designations and zoning, and does so in a way that conflicts with the County General Plan. Substantial evidence in the record supports a fair argument that the Project’s impacts to these land uses are potentially significant.
b. Water Resources. The Project may have a significant impact on water resources, including, but not limited to the following: Changes in, drainage patterns and surface runoff; water related hazards; impacts to surface water quality; impacts to groundwater supply and quality; impacts to groundwater recharge; impacts to public water supplies; and cumulative impacts to water resources. Evidence submitted to County during Project review by the State Water Resources Control Board (“SWRCB”), California Department of Fish and Game (“CDFG”) and the United States Army Corps of Engineers (“USACE”) shows that the Project may have significant impacts to ground water supplies, surface waters, wetlands and riparian habitat.
c. Biological Resources. The Project may have a significant impact on biological resources, sensitive species habitat and populations. Federal and State protected species occur in the Project area and impacts to such habitat triggers the mandatory requirement for the preparation of an EIR under CEQA. The Project may impact protected species, degrade habitat, and have significant watershed impacts. The Project may result in significant adverse impacts to Merced River Fisheries. Further, the USACE identified jurisdictional waters of the United States on the Project site, a conclusion the County simply noted that if the “Corps disagrees with the County’s position [that there no jurisdictional waters], it has the authority to contact the applicant directly. . . .” County refused to prepare a wetland delineation for the Project site. Substantial evidence in the record, including opinions provided by the California State SWRCB, CDFG and the USACE, supports a fair argument that the Project’s impacts to biological resources are potentially significant.
d. Traffic Impacts. The Project may have significant traffic impacts. The California Department of Transportation commented regarding these potentially significant impacts, recommending a traffic impact study. The Project approval results in a significant increase in the magnitude and duration of mining activity at the Project site. Substantial evidence in the record supports a fair argument that the Project’s traffic impacts are potentially significant.
e. Air Quality. The Project may have significant air quality impacts. The San Joaquin Valley Air Pollution Control District submitted comments showing that the Project may have significant air quality impacts, and recommended a full air quality impact assessment. County declined. Substantial evidence in the record supports a fair argument that the Project’s air quality impacts are potentially significant.
f. Cumulative Impacts. The Project may have significant cumulative impacts on water resources, wildlife habitat, protected species, air quality and land use. Adjacent mining activity and the potential for this Project approval to spur additional applications for authorization to mine below-grade in the tailings (a practice historically prohibited), was not considered during Project review. Substantial evidence in the record supports a fair argument that the Project will have cumulative impacts that are potentially significant.
g. Mandatory Findings of Significance. The Project will have impacts that require a mandatory finding of significance under CEQA. Evidence was submitted in comments from USACE and CDFG indicating that wetlands and/or sensitive species habitat exists in the Project area, and these comments were dismissed by Respondents. Substantial evidence in the record supports a fair argument that the Project will have impacts on rare or endangered plants and animals such that a mandatory finding of significance was required.
h. Inconsistency with General Plan. CEQA provides that where a project is inconsistent with a governing general plan, the lead agency must treat that inconsistency as a significant environmental effect. The Project is inconsistent with General Plan policies relating to land use, open space and conservation and agriculture. For example, County concluded that new Reclamation Plan will be “more beneficial” to watershed and wildlife habitat uses, consistent with General Plan Policies, and yet made this conclusion in the face of contrary expert opinion from the CDFG and USACE. Moreover, Merced County's General Plan is outdated, with the last revision taking place in 1987. A comprehensive General Plan update is needed. Amendments to an outdated General Plan cannot be allowed to substitute for such an update.
30. Respondents have also failed to analyze reasonable and feasible alternatives to the Project. Numerous comments requested that the County review Project alternatives, and also address the concerns of the citizens of Snelling. The truncated environmental review performed by Respondents foreclosed any opportunity to review alternatives, in direct violation of CEQA.
31. Respondents failed to provide a good faith and reasoned response to all of the comments submitted by the public and public agencies on the draft Mitigated Negative Declaration and Initial Study for the Project.
32. Respondents inappropriately deferred the development of mitigation measures known by Respondents to be feasible. For example, experts from SWRCB, USACE and CDFG provided opinions that the Project could have significant impacts to hydrology and water supply, and yet County ignored this evidence, concluded that no potentially significant impacts would occur, and no mitigation measures were adopted for potential impacts to hydrology, instead putting off consideration of mitigation to the future.
33. Respondents inappropriately refused to perform necessary investigations, studies or inquiry with respect to known areas of conflicting expert opinion and information suggesting that significant impacts would occur.
34. Respondents inappropriately deferred the performance of necessary investigations, studies or inquiry with respect to the development of mitigation measures and provided no performance standards, criteria or specific guidance with respect to future studies used to develop mitigation measures.
35. Respondents failed to adequately consult with the appropriate trustee agencies, responsible agencies and agencies with jurisdiction over natural resources affected by the Project as required by CEQA.
36. Respondents failed to provide an adequate Project description in that it did not adequately identify and contrast existing conditions with those of the proposed Project.
37. The Mitigated Negative Declaration and the Initial Study fail to provide substantial evidence to support Respondents’ conclusions that the Project will not have a significant effect on the environment.
38. Respondents violated their duty to prepare a legally adequate environmental impact report as required by CEQA and the CEQA Guidelines (Title 23 California Code of Regulations, § 15000 et seq.).

SECOND CAUSE OF ACTION
Writ of Mandate Pursuant to C.C.P. § 1094.5 for Procedural
Noncompliance with CEQA and CEQA Guidelines

39. Petitioners reallege and incorporate herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 38 of this petition and further alleges as follows:
40. Respondents abused their discretion and failed to proceed according to law in that they failed to adequately respond to the correspondence, information and other materials that evidenced the Project’s significant environmental impacts, as submitted to Respondents by various resource agencies during the Project approval process and CEQA review.
41. Respondents further abused their discretion and failed to proceed according to law in that they adopted a “baseline” condition intended to minimize disclosure of the true Project impacts, thereby failing to fulfill CEQA’s informational purposes.
42. Respondents failed to include sufficient description, data and information in the Project description and environmental review to support Respondents’ conclusions.
43. Respondents failed to require the preparation of an Environmental Impact Report for the project, despite the existence of a "fair argument" based on substantial evidence in the record, that the project may have a significant effect on the environment.
44. As a result of Respondents’ failure to comply with the procedures required by CEQA and the CEQA Guidelines, a preemptory writ of mandate must issue ordering Respondents to set aside its environmental findings and the related decision, and directing Respondents to comply with the procedures mandated by CEQA and the CEQA Guidelines before acting on any development proposal under the Project.

PRAYER
Wherefore, Petitioners respectfully request the following relief and entry of judgment as follows:
1. A peremptory writ of mandate directing Respondents to vacate and set aside the approval of the Mitigated Negative Declaration prepared for the Project on the grounds that it violates the California Environmental Quality Act, Public Resources Code section 21000 et seq.
2. Petitioner’s attorneys’ fees under Code of Civil Proc edure section 1021.5 and other applicable authority;
5. Costs of suit; and
6. Such other and further relief as the Court deems just and proper.

DATED: January 18, 2007
LAW OFFICES OF DONALD B. MOONEY

By Donald B. Mooney
Attorney for Petitioners
San Joaquin Raptor Rescue Center; and
Protect Our Water

VERIFICATION
I am the attorney for Petitioners San Joaquin Raptor Rescue Center and Protect Our Water who are all located outside the County of Yolo, State of California, where I have my office. For that reason, I make this verification for and on their behalf pursuant to the California Code of Civil Procedure section 446. I have read the foregoing Verified Petition for Writ of Mandate and know its contents. The matters stated in this Verified Petition for Writ of Mandate are true of my own knowledge except those matters stated on information and belief, and as to those matters I believe them to be true.
I declare under penalty of perjury that the above is true and correct. Executed this 18th day of January 2007, at Davis, California.
Donald B. Mooney