Motion-Secondary: SAN FRANCISCO BAYKEEPER INC. VS. CALIFORNIA STATE LANDS COMMISSION et al (CEQA Case)

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Erica A. Maharg (State Bar No. 279396)

M. Benjamin Eichenberg (State Bar No. 270893)

Nicole C. Sasaki (State Bar No. 298736)
SAN FRANCISCO BAYKEEPER, INC.
1736 Franklin Street, Suite 800
Oakland, California 94612

Telephone: (510) 735-9700

Facsimile: (510) 735-9160

Email: erica@baykeeper.org

Email: ben@baykeeper.org

Email: nicole@baykeeper.org

Attorneys for Petitioner

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

01/30/2017
Clerk of the Court
BY:MADONNA CARANTO

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

SAN FRANCISCO BAYKEEPER, INC.,
Petitioner,
vs.

CALIFORNIA STATE LANDS
COMMISSION,

Respondents,
HANSON MARINE OPERATIONS, INC.;

HANSON AGGREGATES, LLC; JERICO
PRODUCTS, INC., MORRIS TUG &

BARGE, INC.; and SUISUN ASSOCIATES,

Real Parties in Interest.

Case No. CPF-12-512620
Date Filed: November 16, 2012

OPPOSITION TO MOTION TO
DISCHARGE PEREMPTORY WRIT
OF MANDATE

Date: February 10, 2017
Time: 9:30 a.m.

Dept.: 503

Judge: Hon. Garrett L. Wong

OPPOSITION TO MOTION TO DISCHARGE

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TABLE OF CONTENTS

INTRODUCTION .vsssssssesssssssssscsossnsonsossensenscesesssessonsoncsnsonsonsnssensesssosonssonsensanconsvssessenscnssesonsssnsessens 1

FACTS OF THE CASE........cccessssssssssssssesnesessesssncsessessssesnsnsseenssessesnsscsnencqussesnsseaneneseenssesseaceneaeeassneas 1

I, The Sand Mining Leases

TT. Procedural History........sssssosesnesssserssacsesessescansnsesenssecacssenssseassneneesenesneassesesesseaneaseneansseneee 2

III. | SLC’s Reapproval Process...

LEGAL STANDARD...
IT. The Public Trust Doctrine............ccsssscssssssesssessesssesnsessnesssasseencssenesnsesseesesesneanenesseanseeneenenes 4
IL. Standard of Review............cscsssssssssesssnessessssesesnsnessesssnssessenssssassnenessesesnsnesnenesesaeansneanenesneae 5
ARGUMENT. ....ccssssssssssnesnesoeesesnecsesencsnccneeacsnenssoreseesnsnscenseucsucesesnsenesoeesecsessecensenetaceneseseneenneneeseseneens 6

I. SLC Erred as a Matter of Law When It Defined Sand Mining as a Public Trust Use.6
A. Sand Mining Does Not Fit into the Common Law Definition of Navigation or

Waterborne Commerce... a7

B. Courts Have Universally Analyzed Natural Resource Extraction from Trust Property as
Non-Public Trust Uses..........ccccccecesccsescesesseseesesnesssacnsseesesneessesssessesneacseeasseeasseesesesesseeesersennences 9
C. The Legislature Has Determined Mining on Sovereign Lands Is a Non-Trust Use.......10
D. The Fact that Sand Mining May Confer a Public Benefit Does Not Render It a Public

Trust Use........

II. SLC’s Conclusion that Sand Mining Will Not Impair Coastal Beaches Is Not

Supported by Substantial Evidence...........cscssssssssessserssssssessserassvsssssereseesseraserasssasesasseseseseres 11
TIT. SLC’s Action Was Prejudicial Error. ........sssssssssssesesesessssssscsssssscasessnesesesesenssscssseseses 15
CONCLUSION .....csssssessesssesssesssssaresarsesnsssnssnessnecsnecsnessneennecsnessnessussonsssuesnasseacsnacsssssnsesssesnasenseeaness 15

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TABLE OF AUTHORITIES

California Cases
Boone y. Kingsbury (1928) 206 Cal. 148 .....ccscsecsssseesesseeseesssssssessessessesessesssesessissssssasssseseenens
Carstens v. Cal. Coastal Com. (1986) 182 Cal. App.3d 277 ..ccccscesesessessseseseessseeesseessveseseees

Citizens for East Shore Parks v. Cal. State Lands Com. (2011) 202 Cal.App.4" 549

Colberg, Inc. v. State ex rel. Dept. of Public Works (1967) 67 Cal.2d 408 ....cccecsseseeseeneseeees 8, 10
County of Orange v. Heim (1973) 30 Cal. App.3d 694 ....cccsecsesssscssesseeserssesecseesessississsseessneesessees 5,6
Hayes v. A.J. Associates, Inc. (1993) 846 P.2d 13 Lo. cecceccecsecessessesseessecsteseeseeseeseesecesssessnesaneasensenses 10
Marks v. Whitney, 491 P.2d 374 (Cal. 1971)].) cccesscssscesseessesstesseesseseseessesssesssenssenssesesetsnsesnecsneesees 10
National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 ...ccccecsesecesseesseeeeserneseenes passim
People v. Gold Run Ditch & Mining Co. (1884) 66 Cal. 138 ...cccccccsssesseseerssecneseeesseesseenesteneaeenes 9

Ross v. Cal. Coastal Com. (2011) 199 Cal.App.4" 900.

San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) 102

{aD A p46 5 Gta aeatedadedata tat attested ata tntbatcededadedetatatat atte ededadadatadatatatatatatateaed 6,11
San Francisco Baykeeper v. Cal. State Lands Com. (2015) 242 Cal.App.4" 202 cesses: passim
SN Sands Corp. v. City and County of San Francisco (2008) 167 Cal. App.4" 185....sssssssesescesseoes 6

Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506...........5, 6
Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th Licensees 6
Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4" 1163..

Federal Cases

Illinois Central R. Co. v. Illinois (1892) 146 U.S. 387 .oeccccccccccesccseseneseseseeeseeeseeeeeeceneenenenseeeeeeee 4,12
Statutes

Code Civ. Proc. § 1094.5(D) .ecccceccceseseseseseseseeeeeenseneneneaeseaesescesansvenenenensnensacasecaesvarevensneneneneneneaented 5
Gov. Code § 66600 v.cscesscessesseeseseesseessecsseessessseesserssesssecsssssessusssasssssessssssusssessseessessseeasseaneesseeaneesee 4
Pub. Res. Code § 6009 o.cecccccccccesenssesesesesseesesceeecenenenenenesceescseseecacscanenensneneaeneaeecaeseanensnstenenenenensaenees 4
Pub. Res. Code § 6895 ccccccccscetstenssesesesescetscecenenenesensseeescesseseeeeneeseneneneaeeeaeasaceeececanenenanenenenenees 5,10

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Pub. Res. Code § 6900 ...cecccccsecssesseessesssesseessesssesssessseesneesnessssssesnesessneseessnsseessetsenssaeeanees 5,7, 10
Pub. Res. Code § 21002 ....ccccccccseseseesssesesesesceesnenenssenescaesenescececsneneneneseneceneacaeeeseaeseaveneneneneneneneates 12
Pub. Res. Code § 30001 oe eececceeensessecesesesesnseseeesneesseecsesesesesesesesneesseesaeeeaeenecensestiesteeseeesaeerecneeees 4
Other Authorities

Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial

Intervention (1969) 68 Mich. L. Rev. 471

OPPOSITION TO MOTION TO DISCHARGE

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INTRODUCTION

In 2015, the Court of Appeal found that the California State Lands Commission (“SLC”)
failed to consider the public trust doctrine when it authorized private companies to increase sand
mining and remove 1.5 million cubic yards of sand annually from San Francisco Bay. As a result,
this Court issued a peremptory writ of mandate ordering SLC to reevaluate the sand mining leases
in light of SLC’s duty to protect public trust resources and uses. In response, SLC reissued the
same leases, shirking its obligation to only authorize sand mining at sustainable rates that would
protect public trust resources. When reapproving the leases, SLC unlawfully defined sand mining
as a public trust use, disregarding applicable case law and relying on the same rationale that was
rejected by the Court of Appeal. Further, SLC’s reapproval repeated the erroneous conclusion that
the sand mining under the leases will not harm public trust resources, specifically coastal beaches
such as Ocean Beach. To reach this conclusion, SLC ignored or mischaracterized the
overwhelming scientific evidence that sand mining in the Bay is a major cause of coastal erosion.
In short, although SLC added a perfunctory public trust discussion, SLC failed to comply with the
peremptory writ of mandate because it did not reevaluate the leases consistent with the Court of
Appeal decision or public trust law. SLC also failed to reissue the leases in a manner that protects
public trust resources. This Court should not discharge the peremptory writ of mandate as
requested by SLC, but should order SLC to fulfill the agency’s public trust obligations by
reissuing leases that comply with pubic trust law and protect public trust resources and uses.

FACTS OF THE CASE

I. The Sand Mining Leases

Sand mining in San Francisco Bay results in the erosion of nearby beaches and the
irreversible loss of vital sediment within the Bay. (See, e.g., AR 468-69, 481, 500, 3391; SAR
2188-90.) Because of this harm, Baykeeper has challenged SLC’s grant of four 10-year leases
under the San Francisco Bay and Delta Sand Mining Project (“leases”). (AR 295-96, 334; SAR

' Citations to the Administrative Record appear as: “AR [page number(s), excluding leading zeros].” Citations to the
Supplemental Administrative Record appear as: “SAR [page number(s), excluding leading “SUPP” and zeros].”

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373-457.) If allowed to proceed, these leases would allow Hanson Marine Operations, Inc. (“Real
Party”), to extract up to 1.5 million cubic yards of sand annually from the Central Bay, almost
double the historic volume mined from this area. (AR 322, 496; SAR 27.)

The leases allow the Real Party to mine sand in known sediment transport pathways. (AR
26262; SAR 1954, 1963, 2188-90, 2258-59, 2279.) Absent intervention, coarse sediment or sand
is naturally transported from the Sacramento and San Joaquin watersheds, through San Francisco
Bay, out the Golden Gate, where it is deposited on the San Francisco Bar. (AR 26262; SAR 1954,
1963, 2279, 2258.) The San Francisco Bar is a large shoal at the mouth of San Francisco Bay,
which feeds Ocean Beach and other nearby beaches. (/d.) In recent decades, Ocean Beach, a
coastal beach south of the Golden Gate, has experienced the highest rate of erosion in California.
(AR 9795, 26055.) This erosion has already caused significant damage to wastewater and
transportation infrastructure. (AR 9795, 26041.) Studies of the sediment transport pathway, led by
the United States Geological Survey (“USGS”), have concluded that “the likely cause of the
erosional trend [at Ocean Beach] is a reduction in the sediment supply to the region.” (AR 26055;
see AR 26052.) USGS has shown a clear connection between the sand mining at issue here,
reduced sediment supply in the Bay, and erosion at Ocean Beach. (See AR 26041-60, 26261-82;
SAR 2188-90.) Researchers predict that, if sand mining continues to be permitted at unsustainable
rates as the current leases allow, these impacts will worsen. (See AR 26052; SAR 2188-90, 2253.)
IL. Procedural History

Baykeeper challenged SLC’s approval of the leases in 2012, alleging violations of the
California Environmental Quality Act, Public Resources Code section 21100 et seg. (“CEQA”),
and the public trust doctrine. (Verified Petition for Writ of Mandate, filed November 16, 2012.)
This Court denied Baykeeper’s petition and entered judgment for SLC. (Order Denying Petition
for Writ of Mandate, filed April 28, 2014; Judgment Denying Petition for Writ of Mandate, filed
May 19, 2014.) Baykeeper subsequently appealed its CEQA and public trust claims.

On November 18, 2015, the Court of Appeal issued its opinion finding that SLC’s

environmental review of the leases mostly complied with CEQA. (See San Francisco Baykeeper

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v. Cal. State Lands Com. (2015) 242 Cal.App.4" 202, 215-32 (Baykeeper).) However, Baykeeper
prevailed on its public trust claim. (/d. at 243.) The Court of Appeal found that SLC failed to
fulfill its obligation to consider the public trust when it approved the leases. (/d.)

On remand on April 28, 2016, this Court entered the Judgment Granting Petition for Writ of
Mandate, finding that SLC had violated the public trust doctrine. On May 16, 2016, the
Peremptory Writ of Mandate (“Writ”) issued, ordering SLC to set aside the leases, and “before
voting on whether to reapprove the leases, conduct a public trust analysis and reconsider the
leases in light of the common law public trust doctrine consistent with this Court’s Judgment and
the First District Court of Appeal’s November 18, 2015 decision.” (Writ, § 1.) The Writ ordered
SLC to return to the Writ no later than 180 days from the issuance. (/d. at § 3.) This Court
retained jurisdiction to consider the return and the objections to the return. (/d. at § 4.)

II. SLC’s Reapproval Process

One month after the Writ issued, on June 16, 2016, SLC published the agenda for its June
28 hearing, which included an action to set aside and concurrently reapprove the leases. (SAR 1,
10). A few days before the hearing, SLC published a staff report for the agenda item. (SAR 21-58
(“Staff Report”).) The Staff Report recommended that SLC approve the same leases and find that
sand mining is a public trust use for the purposes of waterborne commerce and navigation. (SAR
30-34.) It also recommended that SLC find that the sand mining approved by the leases would not
impair public trust resources and uses. (SAR 32-42.)

Baykeeper submitted written and oral comments to SLC, explaining why the Staff
Report’s analysis was contrary to law and fact. (See SAR 109-113, 488-504.) Baykeeper alerted
SLC to the Staff Report’s flawed public trust analysis and specifically noted that the Staff Report
included overly-broad definitions of waterborne commerce and navigation that were unsupported
by legal authority and already rejected by the Court of Appeal. (SAR 489-92.) Baykeeper also
alerted SLC that the Staff Report mischaracterized or disregarded the scientific evidence showing
that the leases will have a detrimental impact on the San Francisco Bar and nearby coastal

beaches. (SAR 492-95.) Despite Baykeeper’s comments, on June 28, 2016, SLC voted to

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reapprove the same sand mining leases using its flawed public trust analysis. (SAR 44, 367.)

SLC filed its Return to Peremptory Writ, along with its Motion to Discharge the
Peremptory Writ of Mandate, on November 10, 2016. Baykeeper timely objected to the Return to
the Peremptory Writ of Mandate on December 9, 2016.

LEGAL STANDARD
I. The Public Trust Doctrine

The public trust doctrine protects the public’s right to access and use public trust
resources, such as submerged and tidal lands. (See National Audubon Society v. Superior Court
(1983) 33 Cal.3d 419, 433-8 (National Audubon); see also Joseph L. Sax, The Public Trust
Doctrine in Natural Resource Law: Effective Judicial Intervention (1969) 68 Mich. L. Rev. 471,
537 [the doctrine is a “device for ensuring that valuable governmentally controlled resources are
not diverted to the benefit of private profit seekers”].) The State of California holds title and
ownership of trust lands, including the floor of San Francisco Bay and the California coast, “as
trustee of a public trust for the benefit of the people.” (National Audubon, 33 Cal.3d at 434; see
Gov. Code § 66600; Pub. Res. Code § 30001.) SLC, as the agency charged with trustee duties,
has an “affirmative duty to take the public trust into account . . . and to protect public trust uses
whenever feasible.” (National Audubon, 33 Cal.3d at 446; see Pub. Res. Code § 6009.)

To evaluate a trustee agency’s compliance with the public trust doctrine, the California
judiciary applies the well-established test from //inois Central R. Co. v. Illinois (1892) 146 U.S.
387, 455-6 (Illinois Central). (Baykeeper, 242 Cal.App.4" at 233.) Under this test, a trustee
agency may permit the use of public trust resources in only two circumstances: (1) when the use
is an accepted public trust use that will result “in the improvement of the [public] interest thus
held,” or (2) when the permitted use will occur “without detriment to the public interest in the
lands and waters remaining.” (J/linois Central, 146 U.S. at 455-6.)

Under I/linois Central, the State must first determine whether the activity being permitted
is a public trust use. Public trust uses are broad in so far as they protect the many public uses of

trust resources, including navigation, commerce, fishing, recreation, and ecosystem preservation.

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(See Baykeeper, 242 C ‘al. App.4" at 233; Citizens for East Shore Parks v. Cal. State Lands Com.
(2011) 202 Cal.App.4" 549, 571 (Citizens).) However, a public trust use is not simply any use
that provides a public benefit. (Baykeeper, 242 Cal. App.4" at 235.) A public trust use must
“facilitate[] public access, public enjoyment, or public use of trust land.” (/d. at 236.)

When the proposed activity constitutes a public trust use, the State has discretion to permit
one public trust use to the detriment of another. (National Audubon, 33 Cal.3d at 440.) Thus, if
the activity being permitted is a public trust use, the State need not consider the second step of the
Illinois Central test. If, however, an activity is not a cognizable public trust use, the State must
determine whether the activity interferes with a trust resource or a recognized trust use and must
“protect public trust uses whenever feasible.” (National Audubon, 33 Cal.3d at 435-37, 446.)

II. Standard of Review

SLC’s issuance of the leases is a quasi-adjudicative decision reviewed under the abuse of
discretion standard. (See Topanga Assn. for a Scenic Community v. County of Los Angeles (1974)
11 Cal.3d 506, 509-12, 515 (Topanga). Under this standard, the court determines “if [SLC] has
not proceeded in the manner required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.” (Code Civ. Proc. § 1094.5(b);
Topanga, 11 Cal.3d at 515.) The first issue in this case—whether sand mining constitutes a public
trust use—is a legal issue reviewed de novo. (See National Audubon, 33 Cal.3d at 440-41;

Citizens, 202 Cal.App.4" at 573.)° The second issue—whether SLC properly found that sand

? SLC asserts that its action was quasi-legislative. (MPA at 4 [citing County of Orange v. Heim (1973) 30 Cal.App.3d
694, 718-19].) In Heim, the court stated that the State’s power to choose between two trust uses is a legislative act.
(Ud. at 715.) Baykeeper agrees that if sand mining is a trust use, SLC has discretion to prefer it over other trust uses,
but SLC’s power to administer the trust is “absolute” only when it acts “within the terms of the trust” (i.e., choosing
between trust uses). (See Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4"* 1163, 1191-93.) Here, SLC is not
choosing between trust uses, but rather is determining whether sand mining is a trust use and, if not, whether it may
authorize sand mining in any case. These questions are not up to the discretion of SLC, but are dictated by the public
trust doctrine and statute (see Pub. Res. Code §§ 6890, 6900). This action is akin to granting a zoning variance; in
both cases, the agency may only authorize the activity if certain requirements are met. (See Topanga, 11 Cal.3d at
511-12.) The appropriate review in these cases is abuse of discretion. (Jd. at 515.)

* SLC’s interpretation of the public trust doctrine in this case is not due deference because it is neither a formal
interpretation, such as a regulation or longstanding policy, nor does the interpretation require any technical expertise

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mining will not impair public trust uses—must be supported by substantial evidence in the record.
(Topanga, 11 Cal.3d at 511-12; San Franciscans Upholding the Downtown Plan v. City & County
of San Francisco (2002) 102 Cal. App.4" 656, 675.)'
ARGUMENT

SLC’s hastily compiled public trust analysis fails in two distinct ways to comply with the
Writ’s instruction to “conduct a public trust analysis and reconsider the leases in light of the
common law public trust doctrine consistent with this Court’s Judgment and the First District
Court of Appeal’s November 18, 2015 decision.” (Writ, {| 1.) First, SLC unlawfully defined sand
mining as a public trust use, specifically as waterborne commerce and navigation, in a manner
inconsistent with and directly contradicting the Court of Appeal’s decision and decades of public
trust case law. Second, SLC failed to support with substantial evidence its determination that the
mining authorized by the leases would not impair trust resources and uses. In fact, the record
shows that the unsustainable sand mining levels approved by SLC will impair coastal beaches.
Thus, SLC abused its discretion and failed to comply with the Writ when it reapproved the leases.
I. SLC Erred as a Matter of Law When It Defined Sand Mining as a Public Trust Use.

While defending its finding that sand mining is a public trust use, SLC incorrectly argues
that it has complete discretion to define public trust uses. (Joint Memorandum of Points and
Authorities in Support of Motion to Discharge Peremptory Writ of Mandate (“MPA”) at 7.)
Whether or not an activity is a public trust use is not a matter of agency discretion, but a matter of
law. (See National Audubon, 33 Cal.3d at 434-35; Bavkeeper, 242 Cal.App.4” at 232.) “[C]ourts
should look with considerable skepticism upon amy governmental conduct which is calculated...
to subject public uses to the self-interest of private parties.” (Zack's, 165 Cal.App.4" at 1177

[internal quotation omitted].) “[B]y its very essence, a public trust use facilitates public access,

held by SLC. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10-13; compare Ross v.
Cal. Coastal Com. (2011) 199 Cal.App.4"" 900, 938 (deferred to agency’s interpretation of its own regulation.)

* Even if the Court agrees with SLC that this action is quasi-legislative, SLC’s factual determinations must be
supported by substantial evidence. (See SN Sands Corp. v. City and County of San Francisco (2008) 167 Cal.App.4"
185, 191; Heim, 30 Cal.App.3d at 723.)

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public enjoyment, or public use of trust land.” (Baykeeper, 242 Cal.App.4" at 236.) The leases
subject trust property to use by private parties, an action that is inherently not a public trust use.
The Court of Appeal explicitly rejected SLC’s overly broad definitions of navigation and
waterborne commerce. Yet, when it reapproved the leases, SLC recycled these unlawful
definitions. The previously rejected definitions cannot justify SLC’s improper determination that
private sand mining is a trust use. Indeed, courts considering natural resource extraction, similar
to sand mining, have uniformly analyzed these activities as non-public trust uses. (See Baykeeper,
242 Cal.App.4" at 236-37.) Further, the Legislature has ordered SLC to consider mineral
extraction on submerged lands as a non-trust use. (See Pub. Res. Code § 6900.) Finally, SLC’s
arguments regarding the benefits of sand mining are irrelevant. Public trust uses are specific
actions related to the public’s use of trust resources; they are not merely activities that confer a

public benefit. (See Baykeeper, 242 Cal.App.4" at 235; National Audubon, 33 Cal.3d at 440-41.)

A. Sand Mining Does Not Fit into the Common Law Definition of Navigation or
Waterborne Commerce.

SLC incorrectly determined that, because tugs and barges are used in the operation, sand
mining is “navigation” and, thus, a trust use. (SAR 32.) This is the same reductionist argument
SLC made and was rejected by the Court of Appeal. (Baykeeper, 242 Cal.App.4™ at 238 [this
argument “highlights the flawed definition of a public trust use which runs throughout the SLC’s
arguments.”].) SLC cannot credibly claim that the purpose of sand mining is to navigate the
waterway or that the activity facilitates public navigation, like, for instance, a public maintenance
dredging project. The use of a tug and barge is merely ancillary to the sand mining activity; such
collateral use does not render the whole mining operation navigation. SLC’s interpretation of
navigation would eliminate any limits to the definition of trust uses; any activity that uses a vessel
or water-related infrastructure would suffice. The Court of Appeal has already rejected such a
broad interpretation: “[t]he trust doctrine protects and promotes public uses, including commerce
and navigation. It cannot justify the private use of public property on the basis that the private

party engaged in a water dependent activity for its own private commercial purpose.” (/d.)

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SLC’s conclusion that sand mining is waterborne commerce is similarly flawed. Instead of
looking to the Court of Appeal decision or applicable case law for guidance, SLC created its own
definition of waterborne commerce, defining it as “the exchange or buying and selling of
commodities on a large scale involving transportation by water from place to place.” (SAR 31.)
First, the sand mining activities do not appear to fit into SLC’s own definition. The sand is a
commercial product, but it is not being “transported” by water; it is being extracted from water.
Second, assuming sand mining fits under SLC’s definition, this interpretation would deem any
commercial activity with some connection to water a trust use, an argument the Court of Appeal
again explicitly rejected. (Baykeeper, 242 Cal.App.4" at 238 ([“SLC’s broad concept of a public
trust use as encompassing any private activities that benefit commerce is unsupported by case law
....”].) Courts have consistently limited the meaning of waterborne commerce to commercial
activities that promote and support the public’s interest in the trust resource, such as “wharves or
docks and other structures in aid of commerce.” (Citizens, 202 Cal.App.4" at 571 [internal
quotation omitted].) Such commercial activities, unlike private sand mining, promote the public’s
access to and use of the waterway and are thus, trust uses.

SLC, relying heavily on Colberg, Inc. v. State ex rel. Dept. of Public Works (1967) 67
Cal.2d 408, posits it has virtually unfettered discretion to determine essentially any water-related
activity is a trust use. (See MPA at 6.) Co/berg was an eminent domain case, in which the court
considered whether the State must compensate shipyard owners when it built a highway bridge
over a waterway that cut off upstream access to large ships. (Co/berg, 67 Cal.2d at 411-13.) The
court recognized that modes of commercial transportation had shifted, but that traditional travel
via ship and modern travel via highway both used the waterway for public navigation, a trust use.
(Cd. at 421-22.) The court merely reaffirmed that the State may choose to prioritize one trust use
over another (i.e., favoring navigation via highway over navigation via ship); it did not authorize
the State to define trust uses at will. (/d. at 420; see National Audubon, 33 Cal.3d at 439, n. 21
[rejecting similarly broad reading of Colberg].)

SLC does not have unlimited discretion to define the public trust uses of navigation and

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waterborne commerce; rather, it must determine whether sand mining falls under the trust uses
established by almost a century of case law. The sand mining activities — by promoting only

private use of a public resource — are not a public trust use.

B. Courts Have Universally Analyzed Natural Resource Extraction from Trust
Property as Non-Public Trust Uses.

SLC asserts that “courts have long recognized that the production of mineral resources for
commercial purposes—including oil, gas, and subsurface minerals—is a public trust use.” (MPA
at 6.) Again, the Court of Appeal disagreed with SLC’s position. (See Baykeeper, 242 Cal.App.4"
at 236-37.) In fact, California courts have uniformly analyzed resource extraction as a non-trust
use, despite an inherent connectivity to water. (See, e.g., People v. Gold Run Ditch & Mining Co.
(1884) 66 Cal. 138, 151-52 [gold mining analyzed as non-trust use]; National Audubon, 33 Cal.3d
at 438, 445-48 [water diversions held to be non-trust use]; Boone v. Kingsbury (1928) 206 Cal.
148,183 (Boone) [oil wells analyzed as non-trust use]. These decisions focused on whether the
extractive activity impaired public trust uses, the second step of the ///inois Central test.

The Court of Appeal specifically rejected SLC’s misreading of Boone. (Bavkeeper, 242
Cal.App.4 at 236-37.) While Boone extols the benefits of oil and gas production, nowhere does it
make an explicit finding that such activities, or mineral extraction more generally, constitute trust
uses. (See Boone, 206 Cal. at 181-82; Baykeeper, 242 Cal.App.4" at 237 [“[Boone] did not
actually characterize any private mining activity as a public use of trust property, but instead
affirmed a legislative determination that the highly regulated private mining activities authorized
by the challenged statute did not interfere with the public trust.”’].) In other words, Boone focused
on whether the oil drilling would impair trust uses, the second step in the ///inois Central test. As
the Court of Appeal concisely stated, “the authority [SLC] cites only reinforces the distinction
between a public trust use and a private use which is deemed valid because it does not interfere
with the purposes of the public trust doctrine.” (/d.) The other cases considering extractive
activities cited above followed Boone’s precedent and analyzed the activity as a non-trust use.

Perhaps the clearest articulation of the principle that natural resource extraction is not a

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public trust use was made by the Alaska Supreme Court. In Hayes v. A.J. Associates, Inc. (1993)
846 P.2d 131, the court specifically rejected the contention that mining on tidelands was a public
trust use. (/d. at 131-33.) Relying on California law, the court held that “even the most expansive
interpretation of the scope of public trust easements would not include private mining
enterprises.” (/d. at 133 [citing Marks v. Whitney, 491 P.2d 374 (Cal. 1971)].)

In short, mineral extraction on trust lands is not a public trust use, and as such, courts have
analyzed these non-trust uses under the second prong of ///inois Central to determine whether the

activity impairs or interferes with trust resources and uses.

C. The Legislature Has Determined Mining on Sovereign Lands Is a Non-Trust Use.

Even if the categorization of trust uses is a legislative decision, the Legislature has already
defined resource extraction on submerged lands, other than oil and gas drilling, as a non-trust use.
The Public Resources Code limits SLC’s authority to approve mining leases to those that do “not
interfere with the trust upon which such lands are held or substantially impair the public rights to
navigation and fishing.” (Pub. Res. Code § 6900; see also id. § 6895.) Since only non-trust uses
are prohibited from impairing trust uses, these provisions establish the Legislature’s intent to
classify sand mining as a non-trust use. (See Colberg, 67 Cal.2d at 419; National Audubon, 33
Cal.3d at 440.) Therefore, the Legislature has spoken directly to this issue, and SLC does not have

the discretion to go against Legislative intent and determine that sand mining is a trust use.

D. The Fact that Sand Mining May Confer a Public Benefit Does Not Render It a
Public Trust Use.

SLC attempts to justify its unlawful determination that sand mining is a public trust use by
noting that sand mining confers public benefits. (MPA at 7-8.) However, the Supreme Court has
clearly stated that not all activities that confer public benefits are public trust uses. (See National
Audubon, 33 Cal.3d at 440-41.) “[T]he public trust is more than an affirmation of state power to
use public property for public purposes. It is an affirmation of the duty of the state to protect the
people’s common heritage of streams, lakes, marshlands and tidelands . . ..” (/d. at 441.) If any

activity that conferred a public benefit was considered a public trust use, “in practical effect the

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doctrine would impose no restrictions on the state’s ability to allocate trust property.” (/d. at 440.)
The Court then held that diverting water from Mono Lake for public drinking water supplies, a
use that undeniably provides a public benefit, was not a public trust use. (/d. at 440-41, 445-48.)

The Court of Appeal applied this holding from National Audubon, when it rejected SLC’s
contention that sand mining was a public trust use because it “serves a public need.” (Baykeeper,
242 Cal.App.4™ at 235.) “[A] use does not qualify as a trust use simply because it might confer a
public benefit.” (/d.) Thus, whether mined sand may be used for public infrastructure or habitat
restoration is irrelevant for purposes of evaluating whether sand mining is a public trust use. Even
if it did have some bearing, it is important to note that nothing in SLC’s approval requires the

Real Party to sell or use the mined sand for public projects.

II. SLC’s Conclusion that Sand Mining Will Not Impair Coastal Beaches Is Not Supported
by Substantial Evidence.

In addition to erroneously finding that private sand mining is a public trust use, SLC
improperly found that sand mining will not interfere with or impair public trust uses. (See SAR
43.) In determining that the leases will not interfere with sediment transport and coastal
morphology, SLC relied on a consultant report that blatantly misinterprets the scientific studies
upon which it purports to rely. (See SAR 39-41.) Because SLC’s conclusion relies on evidence
that is clearly erroneous, it is not supported by substantial evidence. (See San Franciscans
Upholding the Downtown Plan, 102 Cal.App.4" at 675.)

The extensive scientific evidence in the record shows that (a) significant erosion at Ocean
Beach correlates to reduced sediment within the Bay; (b) sand mining is one of the primary
anthropogenic causes of reduced sediment within the Bay; and (c) thus, sand mining is a major
cause of coastal erosion. Since certification of the Final Environmental Impact Report (“FEIR”),
additional studies compiled in a special volume of Marine Geology published in 2013 have made
these conclusions even more certain. (See SAR 2100-2425 (“2013 Studies”).)

SLC does not dispute that erosion at Ocean Beach is occurring at alarming rates. Yet even

when faced with a growing scientific consensus to the contrary, SLC continues to assert that sand

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mining has “no or negligible impacts to coastal erosion.” (See SAR 40-41.) The report prepared
by SLC’s consultant, Coast and Harbor Engineering (“CHE”) during the reapproval process (see
SAR 1951-82 (“Fenical Report”)), purports to address new studies, but merely reiterates the
report prepared for the FEIR (see AR 918-79). SLC further attempts to avoid reassessing its
analysis by asserting that the Court of Appeal has already decided this issue when it upheld the
FEIR. (MPA at 11.) In fact, the Court of Appeal determined that SLC never analyzed whether
sand mining impaired public trust resources. (Baykeeper, 242 Cal.App.4" at 240-43.)° Moreover,
SLC has an ongoing duty to evaluate the harm to trust resources from permitted activities. (See
National Audubon, 33 Cal.3d at 447 [“the public trust imposes a duty of continuing supervision
over the taking and use of [trust resources]”’].) SLC may not dismiss the overwhelming new
evidence to blindly conclude that sand mining does not impair trust resources.

SLC relies on the Fenical Report as the basis for its decision, but the report consistently
misreads or ignores the relevant scientific evidence. First, for example, the Fenical Report relies
heavily on a finding that the mining areas are not naturally replenished with sand, and thus, “the
mining areas are not likely to capture sand and induce deficits in other areas (including the Bar
and Ocean Beach) .. ..” (SAR 1972.) The finding that mining areas are not naturally replenished
is based on USGS bathymetric analysis from 1997 and 2008, that showed the holes caused by
mining in the Central Bay did not significantly refill with sand during that period. (/d.) However,
in early 2014, USGS updated its 2008 bathymetric analysis, finding that not only had the mining
holes refilled between 2008 and 2014, but there was accretion, or build-up of sand, within the
lease areas. (SAR 1642.) The period from 1997 to 2008 represented a period of peak mining
activity, during which time 13.5 million cubic yards of sand was mined from the Central Bay

(1.35 million cubic yards per year on average). (/d.) In contrast, from 2008 to 2014, only 2.2

* Further, SLC does not provide any authority that the CEQA standard and public trust standard are the same. CEQA
requires analysis of “significant environmental effects.” (Pub. Res. Code § 21002.) The public trust doctrine requires
a determination whether public trust uses are “substantially impaired.” (/inois Central, 146 U.S. at 435.) SLC’s
kneejerk application of statutorily defined CEQA standards (MPA at 9) ignores the Court of Appeal’s conclusion that
the FEIR alone was insufficient to support SLC’s public trust analysis (Baykeeper, 242 Cal.App.4th at 240-43).

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million cubic yards of sand was mined (approximately 0.4 million cubic yards per year), which
equals a 71% reduction in extraction rates. (/d.) The only difference between the 1997-2008 and
2008-2014 study was the rate of mining. Thus, the most logical reason the mining holes did not
refill during the 1997-2008 period is due to the high rate of mining during that period, rather than
anything about the transport patterns themselves. In short, the 2014 bathymetric analysis shows
that sand does refill the mining holes in periods of reduced mining, indicating that the holes not
only have the potential to, but do in fact, capture sand and may induce deficits in other areas, such
as Ocean Beach. Thus, one of the major rationales cited for the Fenical Report’s conclusion that
sand mining would have no impact on coastal erosion has proven to be incorrect. Neither the
Fenical Report nor SLC even mentions this updated 2014 evidence.

Second, although purporting to rely on the 2013 Studies, the Fenical Report flatly
contradicts those studies when it concludes that sand in the Central Bay lease areas would not
make its way to Ocean Beach. (See SAR 1958 [“direct transport” from the Central Bay to the Bar
to Ocean Beach “does not appear to be occurring.”].) In fact, the 2013 Studies conclude that
“Td]espite some relatively minor local conflicts, [all methodologies] indicate that the regional-
scale net sediment transport direction is seaward,” (i.e., from the Bay), “toward the mouth of San
Francisco Bay and the open-coast beaches.” (SAR 2188; see also SAR 2283 [finding that sand on
south coast beaches is primarily from the Bay], 2299 [“[b]each-sized sand in the Central Bay, the
Golden Gate, the ebb-tidal delta and southern open coast is strongly geochemically linked”].)
Also, several papers from the 2013 Studies demonstrated that the primary source of the sand-sized
sediment that feeds the Bar and the beaches south of the Golden Gate, (i.e., Ocean Beach), is
sediment that flows through the lease areas. (SAR 2188.) In short, the Fenical Report’s conclusion
that sand from the lease areas would not reach Ocean Beach is unsupported by evidence.

Finally, the Fenical Report ultimately concludes that no impacts to the coast will result
from the leases because it finds that “[a]ll studies by a variety of experts suggest that the Bar
evolution and related coastal erosion (included [sic] erosion at South Ocean Beach) are controlled

by much larger-scale and long-term processes than sand mining.” (SAR 1972.) This statement is

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patently false.° Prior to the FEIR’s certification, researchers had concluded that the removal of
sand from the Central Bay “is likely to limit the sand supply to adjacent, open-coast beaches.”
(AR 3381; see also AR 9801, 26052 [finding that erosion will likely continue due to the mining
of 1 million cubic meters of sand per year on average].) Since the FEIR, the evidence linking sand
mining to coastal erosion has continued to mount.

The 2013 Studies show that sand mining contributes to the erosion of beaches, especially
when the sand is removed from seaward transport pathways. (SAR 2188; see also SAR 2262.)
Indeed, because of sand mining’s direct contribution to coastal erosion, USGS scientist Dr.
Patrick Barnard, in one of the 2013 Studies, specifically addressed the leases at issue here and

offered specific ways to minimize the impacts:

[T]o minimize the impacts of aggregate mining in west-central San Francisco
Bay on the coastal sediment supply, lease sites could be targeted in areas of net
sediment transport convergence such as the area of accretion in Pt. Knox Shoal
(northern section of PRC709 North) and the three zones of convergence in the
lease site to the south (PRC7779 West). At the very least, mining should be
Socused along bayward-directed sediment transport pathways, such as PRC2036
in Point Knox Shoal, where ongoing heavy mining has resulted in significant
local erosion . .. but does not appear to directly impact sediment supply to the
mouth of San Francisco Bay. Conversely, mining along distinct seaward-
directed pathways, such as the southern section of west-central San Francisco
Bay (PRC709 South and PRC7780 South) would directly limit the supply of
sediment to the open coast.

(SAR 2190 [emphasis added].) In short, the leading scientist studying this issue found that these
specific sand mining leases impact coastal erosion and recommended that SLC take specific steps
to reduce the impacts that these leases would have on coastal beaches—namely, he recommended
reducing mining along seaward sediment transport pathways. The Fenical Report does not
acknowledge these conclusions. Nor does SLC take any action to mitigate impacts to coastal trust
resources as a result of these conclusions. (National Audubon, 33 Cal.3d at 446 [SLC must

“protect public trust uses whenever feasible]; compare Carstens v. Cal. Coastal Com. (1986)

® SLC failed to consult with USGS scientist Dr. Patrick Barnard, the leading researcher on this issue, despite his
availability. (SAR 494.) Dr. Barnard staunchly disagreed with the Fenical Report’s interpretation of his studies. (/d.)

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182 Cal.App.3d 277, 288, 291 [upholding non-trust use of public trust resources because the
agency required measures to mitigate impacts to trust uses].)

A review of the record shows that the Fenical Report’s, and thus SLC’s, conclusion that
sand mining is not impairing coastal beaches (SAR 1972) is unsupported and directly contradicted
by the evidence. As shown above, the consensus of scientists studying Ocean Beach erosion and
sediment transport in the Bay is that sand mining is a principal anthropogenic factor contributing
to coastal erosion. As a result, those scientists have suggested specific modifications to the leases
to reduce those impacts. SLC has either ignored or mischaracterized this scientific evidence.
Thus, SLC abused its discretion because its decision was not supported by substantial evidence
and it did not proceed in the manner required by law.

II. SLC’s Action Was Prejudicial Error.

As explained above, both of SLC’s findings supporting the lease reapproval were
unlawful. However, if the Court finds that sand mining is not a trust use but upholds SLC’s
finding that sand mining will not impair trust uses, the Court should still deny the Join Motion to
Discharge the Peremptory Writ of Mandate. SLC’s approval of the leases was based on both
findings, and it is impossible to discern whether SLC would have approved the leases, if it had
found that sand mining was not a trust use. The case law is clear that an agency’s public trust
determination must be conducted transparently and reflected in the record. (See Zack’s, 165
Cal.App.4" at 1188-89.) Thus, an unlawful finding that sand mining was a trust use is prejudicial.

CONCLUSION

For the reasons stated above, Baykeeper respectfully asks the Court to deny the Motion to

Discharge the Peremptory Writ of Mandate and to order SLC to fully comply with the Writ.
Respectfully Submitted,
DATED: January 30, 2017 SAN FRANCISCO BAYKEEPER

/ /

“A
0. fly f
Caer “Pit KAn _
Erica A. Maharg é
Attorney for Petitioner

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PROOF OF SERVICE

lam a resident of the State of California, over the age of eighteen years, and not a party to
the action. My business address is 1736 Franklin Street, Suite 800, Oakland, CA 94612.

On January 30, 2017, I served the following document(s), OPPOSITION TO MOTION
TO DISCHARGE PEREMPTORY WRIT OF MANDATE, on the following parties or
attorney for parties, as shown below:

Joel Jacobs

Deputy Attorney General
Office of the Attorney General
1515 Clay Street, 20th Floor
Oakland, CA 94612-0550

Joel Jacol -2OV

Christian L. Marsh

Arielle Harris

Downey Brand LLP

455 Market Street, Suite 1500
San Francisco, CA 94105
cmarsh@downeybrand.com
aharris@downeybrand.com

X BY EMAIL: Per agreement between the parties, I caused each document to be sent by
email to the following persons or their representative listed above.

O BY FACSIMILE: I caused each such document to be sent by facsimile to the
following persons or their representative listed above.

O BY FIRST CLASS MAIL: I am readily familiar with this business’s practice of
collecting and processing correspondence for mailing with the U.S. Postal Service. On the date
written above, following ordinary business practices, I delivered to the U.S. Postal Service the
attached document in a sealed envelope, with postage fully prepaid, addressed as shown above.

I declare under the penalty of perjury that the foregoing is true and correct and that this
declaration was executed at Oakland, California on January 30, 2017.

OPPOSITION TO MOTION TO DISCHARGE, PROOF OF SERVICE CASE NO. CPF-12-512620