California Agency Must Weigh Public Trust Resource Impacts

By Carolyn Whetzel

Nov. 19 — The California State Lands Commission failed to consider potential impacts to public trust resources when it approved a project allowing a company to mine sand from the bottom of San Francisco Bay, a state appellate court said (S.F. Baykeeper Inc. v. Cal. State Lands Comm'n, 2015 BL 379394, Cal. Ct. App., No. A142449, 11/18/15).


The Nov. 18 ruling from California's First Appellate District handed the San Francisco Baykeeper Inc. a partial victory in its effort to curb the mining of sand from the bay. The group said the activity contributes to beach erosion and threatens important species. A trial court had rejected the group's claims that the commission violated the public trust doctrine and the California Environmental Quality Act.


“Sand off the floor of San Francisco Bay is a resource that belongs to the public,” the Baykeeper's attorney George Torgun said in a Nov. 18 written statement. “We applaud the court's decision to stop allowing private companies to extract sand in an unsustainable way and hope the agency will consider more reasonable limits on sand mining.”


At issue are the Baykeeper's challenge of environmental documents the commission prepared for the San Francisco Bay and Delta Sand Mining Project, which allows Hanson Marine Operations Inc. to continue mining aggregate sand in specified areas of the bay. The commission's 2012 decision allowed an increase in sand mining, the group said.


Hanson's prior permit expired in 1998, but the company continues to mine for sand used for Bay Area construction projects while the case is pending.


On appeal, the court said the commission's environmental impact report complied with CEQA, but additional analysis was needed to determine if the project was consistent with the public trust doctrine.


The appellate court rejected the commission's argument that the sand mining doesn't deplete a public trust resource and is exempt from public trust analysis.


Sand Mining ‘Inherently Unsustainable.'
In its CEQA analysis of the project, the commission “concluded that sand mining” is “inherently unsustainable,” the appellate panel said.


As for the exemption claim, the court said “private use of trust property triggers affirmative obligations under the public trust doctrine.”


The appellate court decision sends the case back to trial court, which must issue a writ of mandamus requiring the Lands Commission to address the public trust issues.


To contact the reporter on this story: Carolyn Whetzel in Los Angeles at cwhetzel@bna.com


To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com