Grassroots Coalition et al. V. California
granted in part
Department of Fish and Wildlife
Petitioners Grassroots Coalition and the B a l l o n Ecosystem Education Project
(collectively,"Grassroots")seek a writ of mandate compelling Respondent California Department
of Fish and Wildlife ("CDFW*) to set aside its certification of the Final Environmental Impact
Report (*EIR") for the Ballona Wetlands Restoration Project ("Project").
the court has read and considered the joint moving papers and appendix, opposition, and
replies, heard oral argument at the May %, 2023 trial, and renders the following decision.
A. Statement of the Case
Petitioners, which are non-profit organizations, commenced this proceeding on January 28,
2021,alleging a cause of action for mandamus pursuant to the California Environmental Quality
Act ("CEQA").The verified Petition alleges in pertinent part as follows.
The Ballona Wetlands is an approximately 600-acre remnant of 1700 acres of marshy land
in the late 1800s. Proponents of the Project have asserted that the Ballona Wetlands was 70%
saltwater marsh, which the Project seeks to restore. Analysis by the U.S. Environmental Protection
Agency ("EPA") instead suggests that the area was a mixture of dynamic and freshwater marsh
and vegetated wetland (salt marsh), not a 70% saltwater monoculture.
The constant full-tidal salt marsh the Project seeks to achieve will mean a massive
disturbance of soil. It would also cause both polluted Santa Monica Bay water and urban run-off
from the Ballona Creek channel to h a r m the water quality and habitat in the wetlands. The h a b i t a t
in the Ballona Wetlands is a rare coastal seasonal freshwater/brackish water marsh ecosystem.
Project opponents identified a freshwater alternative consistent with the historical and
natural topography of Ballona Wetlands, but CDFW ignored that alternative without further
The project description in the final EIR ("FEIR*) is inaccurate and misleading insofar as it
discusses "restoration" but would remove existing freshwater wetlands and replace it with a non-
naturally occurring full tidal estuarine environment.
The FEIR fails to identify a preferred alternative and instead identifies a range of
alternatives in violation of the CEQA mandate for a stable project description.
Most of the studies relied on in the FEIR were prepared before 2012 and do not reflect the
current baseline. The FEIR fails to properly study baseline conditions with a proper hydrological
study or analyze the extent to which the wetlands and underlying aquifers currently are being
drained by related development.
The FEIR fails to consider the change in circumstances that CDFW was required to cap
drains as required by a lawsuit filed against it by Grassroots.
The FEIR fails to evaluate impacts to the oil and gas infrastructure caused by the Project,
as well as to aquifers underlying the Ballona Wetlands, which are potential sources of drinking
Project opponents raised several unmitigable impacts to wildlife and plants in part because
the Project would excavate 2.5 million cubic yards of sensitive wetland habitat. The FEIR fails to
analyze and improperly deferred mitigation for impacts to habitat and wildlife.
MAY 17, 2023
The FEIR fails to properly evaluate the Project's impacts to the existing and historical gas
and oil infrastructure, or to the aquifers underlying the Reserve. It also fails to properly evaluate
or mitigate direct, indirect, and cumulative impacts to several endangered, protected, and special
status wildlife species. The FEIR instead chose to improperly defer study and mitigation of
impacts tohabitats and wildlife.
The FEIR does not acknowledge that the Project would violate Coastal Act section 30240
because it disrupts wetlands for flood control purposes.
The FEIR dismisses the Project's impact on climate change via the illogical conclusion
that the release of carbon dioxide gases from 2.5 million cubic yards of soil will have an
insignificant unmitigable effect. CDFW did not analyze the sequestration of these gases by
CDFW did not reasonably respond to comments or discuss disputes between experts. Its
responses also materially changed the DEIR such that it should have been recirculated. Although
the Project is on a registered Sacred Site, CDFW failed to consult with Native American tribes
before FEIR certification.
The FEIR improperly segments future portions of the Project and related projects that
would be necessitated by approval of the Project.
Petitioners seek a writ of mandate compelling CDFW to set aside certification of the
Project's FEIR and vacate related approvals. Petitioners also seek an injunction enjoining CDFW
from altering the Reserve's environment until an EIR is certified that complies with CEQA.
Grassroots also seeks attorney's fees and costs.
2. Course of Proceedings
On February 11, 2021, CFDW signed a Notice and Acknowledgement for the Petition.
On March 8 , 2021, Department 54 (Hon. Maurice A. Leiter) found this case related to:
Defend BallonaWetlands et al. v. California Department of Fish and Wildlife, (*Defend")
21STCP00240; Protect Ballona Wetlands v. California Department of Fish and Wildlite.
( " P r o t e c t ) 2 1 S T C P 0 0 2 3 7 ; a n d B a l l o n a W e t l a n d s L a n d T r u s t v. C D F W , (" L a n d T r u s t " )
21STCP00242, (collectively, "Ballona Cases").
On March 29, 2021, after a peremptory challenge in Land Trust, Department 1 reassigned
the Ballona Cases to Department 93 (Hon. Joel L. Lofton).
On April 6, 2021, after a peremptory challenge in Grassroots, Department 1reassigned the
Ballona Cases to Department 15 (Hon. Richard L. Fruin).
On April 22, 2021, after a peremptory challenge in Protect, Department I reassigned the
Ballona Cases to Department 20 (Hon. Kevin C. Brazile).
On May 3, 2021, after a peremptory challenge in Defend, Department I reassigned the
Ballona Cases to this court (Dept. 85).
On July 15, 2021, the court consolidated the Ballona Cases for purpose oftrial only.
On August 10, 2021, thecourt related Grassroots Coalition et. al v. California State Coastal
Conservancy (**Grassroots v .Conservancy**), 21STCP02237 to the Ballona Cases.
On August 2, 2022, the parties stipulated to try Grassroots v. Conservancy separately from
the Ballona Cases.
On September 28, 2022, CDFW filed Answers to each of the Ballona Cases.
OnMarch 14, 2023, the court granted an ex parte application allowing Petitioners Protect
and Land Trust and to file a joint reply brief separately from Petitioners Defend and Grassroots,
which would file their own joint reply brief.
The purpose of CEQA, (Public Resources (*Pub. Res.") Code §21000 et seg.), is to
maintain a quality environment for the people of California both now and in the future. Pub. Res.
Code § 21000(a). The Legislature chose to accomplish its environmental goals through public
environmental review processes designed to assist agencies in identitying and disclosing both
environmental effects and feasible alternatives and mitigations. Pub. Res. Code $21002. Public
agencies must regulate both public and private projects so that "major consideration is given to
preventing environmental damage, while providing a decent home and satistying living
environment for every Californian." Pub. Res. Code §21000(g).
"[T]he overriding purpose of CEQA is to ensure that agencies regulating activities that may
affect the quality of the environment give primary consideration to preventing environmental
damage." Save Our Peninsula Committee v. Monterey County Board of Supervisors, (2001) 87
Cal.App.4th 99, 117. CEQA must be interpreted "so as to afford the fullest, broadest protection
to the environment within reasonable scope of the statutory language." Friends of Mammoth v.
Board ofSupervisors, (1972)8 Cal.3d 247, 259.
The EIR is the "heart" of CEQA, providing agencies with in-depth review of projects with
potentially significant environmental effects. Laurel Heights Improvement Assn. v. Regents of
University of California, ("Laurel Heights IT) (1993) 6 Cal.4th 1112, 1123. An EIR describes the
project and its environmental setting, identifies the potential environmental impacts of the project,
and identifies and analyzes mitigation measures and alternatives that may reduce significant
environmental impacts. Id. Using the EIR's objective analysis, agencies "shall mitigate or avoid
the significant effects on the environment... whenever it is feasible to do so. Pub. Res. Code
§21002.1. The EIR serves to "demonstrate to an apprehensive citizenry that the agency has in fact
analyzed and considered the ecological implications of its actions." No Oil, Inc. v. CIty of LOS
Angeles,(1974) 13 Cal.3d 68, 86. It is not required to be perfect, merely that it be a good faith
effort at full disclosure. Kings County Farm Bureau v. City of Hanford, (*KingsCounty") (1990)
221 Cal.App.ad 692, 711-12. A reviewing court passes only on the EIR's sufficiency as an
informational document and not the correctness of its environmental conclusions. Laurel Heights
Improvement Assn. V. Regents of University of California, ("Laurel Heights [*) (1988) 47 Cal.3d
All EIRs must cover the same general content. Guidelines' § 15120-32. An EIR should
be prepared with a sufficient degree of analysis to provide decision-makers with information which
enables them to make a decision which intelligently takes account of environmental consequences.
The environmental effects need not be exhaustively reviewed and the EIR's sufficiency is viewed
in the light of what is reasonably feasible. Guidelines §15151. The level of specificity of an EIR
is determined by the nature of the project and the "rule of reason." Al Larson Boat Shop.Inc. v.
Board of Harbor Commissioners, (1993) 18 Cal. App.4th 729, 741-42. The degree of specificity
"will correspond to the degree of specificity involved in the underlying activity which is described
in the EIR." Guidelines §15146. The agency's decision whether to approve a project is a nullity
if based upon an EIR that does not provide decision-makers, and the public, with the information
1 As an aid ot carrying out the statute, the State Resources Agency has issued regulations
called "Guidelines for the California Environmental Quality Act" ("Guidelines"), contained in
Code of Regulations, Title 14, Division 6, Chapter 3, beginning at section 15000.
about the project required by CEQA. Santiago County Water District v. County of Orange, (1981)
118 Cal.App.3d 818, 829.
C. Standard of Review
A party may seek to set aside an agency decision for failure to comply with CEQA by
petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional
mandamus. CCP §1085. A petition for administrative mandamus is appropriate when the party
seeks review of a "determination, finding, or decision of a public agency, made as a result of a
proceeding in which by law a hearing is required to be given, evidence is required to be taken and
discretion in the determination of facts is vested in a public agency, on the grounds of
noncompliance with [CEQA]." Public Res. Code §21168. This is generally referred to as an
"adjudicatory" or "quasi-judicial" decision. Western States Petroleum Assn.v .SuperiorCourt,
"Western States) (1995) 9 Cal.4th 359, 366-67. A petition for traditional mandamus SI
appropriate in al other actions "ot attack, review, set aside, void or annul adetermination, finding,
or decision of a public agency on the grounds of noncompliance with [CEQA]." Where an agency
is exercising a quasi-legislative function, it is properly viewed as a petition for traditional
mandamus. Id. at 367;Pub. Res. Code §21168.5.
At issue is Petitioners' CEQA challenge to CDFW's action to approve the Project and
certify the FEIR. This procedural setting, in which CDFW acted in a quasi-legislative capacity in
approving the Project, is governed by traditional mandamus. In determining whether to grant a
petition for either traditional or administrative mandamus in a CEQA case, the court decides
whether there was a prejudicial abuse of discretion. Public entities abuse their discretion if their
actions or decisions do not substantially comply with the requirements of CEQA. Sierra Club v .
West Side Irrigation District, (2005) 128 Cal.App.4th 690, 698. Abuse of discretion is established
if the agency has not proceeded in amanner required by law or ifthe determination or decision Is
not supported by substantial evidence. Western States, supra, 9 Cal.4th at 568; PUb. Res. Code
The court must adjust its scrutiny to the nature of thealleged defect, depending on whether
the claim is predominantly one of improper procedure or a dispute over the facts. Vineyard Area
Citizens for Responsible Growth. Inc. v. City of Rancho Cordova, (*Vineyard*) (2007)4 0 Cal.4th
412,435. Challenges to an agency's failure toproceed in the manner required by CEQA, such as
an EIR's failure to address a required subject or to disclose information about a project's
environmental effects, are subject to a less deferential standard than challenges to an agency's
substantive factual conclusions. Id. at 435. In reviewing these claims, the court must "determine
de novo whether the agency has employed the correct procedures and "scrupulously enforced all
legislatively mandated CEQA requirements." Id; Sierra Club v. County of Fresno, (*Friant
Ranch") (2018) 6 Cal.Sth 502, 512. Whether an issue is procedural or factual "is not always clear".
Id. at 513. Clear-cut procedural issues such as whether the agency provided sufficient notice
and opportunity to comment and whether the agency omitted the required discussion of
alternatives are reviewed de novo. Id. at 512.
Greater deference is accorded to factual findings under the substantial evidence standard
of review. Id. At 512. "Substantial evidence" is defined as "enough relevant information and
reasonable inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached. Guidelines §15384(a). A court
may not set aside an agency's approval of an EIR on the ground that an opposite conclusion
would have been equally or more reasonable,' for, on factual questions, our task is not to weigh
conflicting evidence and determine who has the better argument." Sierra Club, supra, 6Cal.S" at
512 (citing Laurel_, supra, 47 Cal.3d at393). When reviewing factual determinations such as
the decision to use a particular methodology-
-substantial evidence review is appropriate. Id. at 514.
Whether substantial evidence exists is a question o f law. See California School Employees
Association v. Department of Motor Vehicles, (1988) 203 Cal.App.3d 634, 6 4 4 . Argument,
speculation, and unsubstantiated opinion or narrative will not suffice. Guidelines, 15384(a), (5).
An EIR may not be overturned simply because the record reveals a disagreement among experts.
Cadiz LandCo.v.RailCycle, (2000) 83 Cal.App.4' 74, 97. Apetitioner must describe the
evidence favorable to the agency and show why i t is lacking. Mani Brothers Real Estate Group v.
CityofLosAngeles, (2007) 153 Cal.App.4' 1385, 1402. The failure to do so is fatal. Defendthe
Bayv .Cityof Irvine, (2004) 119 Cal.App.4th 1261, 1266. fI hte record contains any substantial
evidence supporting the agency's decision, the decision must be upheld. Banning Ranch
Conservancy v. City ofNewport Beach, (BanningRanch*(2012) 21 Cal.App.4th 1209, 1230.
Deference to an agency's factual determinations is even more appropriate where the agency
has been delegated regulatory authority in aparticular field. CDFW is the state agency the missioni
of which is to "manageCalifornia's diverse, fish, wildlife,and plant resources, and the habitats
upon which they depend, for theirecological values and for their use and enjoymentofthe public."
Fish & Game Code $712.1(a). CDFW also is the state's trustee for fish and wildlife resources.
Fish & Game Code $711.7(a). Under CEQA, state lead agencies are required to consult with
CDFW before preparing environmental impact reports that evaluate impacts on these resources.
Pub. Res. Code $21104(a). CDFW has been recognized as possessing special expertise for matters
concerning fish and wildlife conservation. Fish & Game Code $1802 (requiring CDF W to provide
its biological expertise to lead and responsible agencies in their reviews of environmental impacts
under CEQA); see also Environmental Council ofSacramento v. City of Sacramento, (2006) 142
Cal.App.4th 1018, 1042 (*The agencies entrusted with the statutory obligation of balancing the
needs of human populations with those of endangered plants and animals are guided by the
expertise of their scientific staffs"). For this reason, the courts defer to CDFW's fact findings,
even when presented with conflicting opinions from other experts. See ibid. (*We will not arbitrate
between scientists and we will not intrude on the public agencies' duties to make policy and protect
the species"). See Opp. at 11.
The court also may have to determine "whether an EIR's discussion of environmental
impacts is adequate, that is, whether the discussion sufficiently performs the function of facilitating
'informed agency decision making and informed public participation."" Sierra Club, supra, 6
Cal. S"' at 513 (citation omitted). "[T]he adequacy of an EIR's discussion of environmental impacts
is an issue distinct from the extent to which an agency is correct in its determination whether the
impacts are significant." Id. at 514. Where the issue is the adequacy of an EIR's discussion of a
potentially significant impact," the ultimate inquiry ... is whether the EIR includes enough detail
to enable those who did not participate in its preparation to understand and consider meaningfully
the issues raised by the proposed project." Id. at 516 (citation omitted).
The inquiry on the adequacy of an EIR's discussion is generally a mixed question of law
and fact. The court must engage in de novo review to determine "whether the EIR serves its
purpose as an informational document." Id. at 516. This is an issue of law, and no deference is
given to the agency's determination. Washoe MeadowsCommunity v .Department of Parks and
Recreation, ("Washoe*) (2017) 17 Cal.App.Sth 277, 286. However, "to the extent factual
questions (such as the agency's decision which methodologies to employ for analyzing an
environmental effect) predominate, a substantial evidence standard of review will apply." South
of Market Community Action Network v. City and County of SanFrancisco, ("SoMa") (2019) 3
Cal.App.Sth 321, 332. "[I]n reviewing an EIR's discussion, [courts] do not require technical
perfection or scientific certainty." Sierra Club, supra, 6 Cal.Sth at 515. The "overriding issue on
review is thus whether the lead agency reasonably and in good faith discussed a project in detail
sufficient to enable the public to discern from the El the analytic route the . . . agency traveled
from evidence to action." SoMa, supra, 3 Cal.App.5th at 31 (citation omitted).
D. Statement of Facts-
the Reserve is approximately 600acres of open space located in the middle of the County's
coast, approximately five miles north of the Los Angeles International Airport and close to Loyola
Marymount University, bordered by the communities of Westchester, Marina del Rey, and Playa
Vista. AR 103951.
CDFW manages and primarily owns the Reserve, with a smaller interest owned by the
California State Lands Commission. AR 208. The County's Department of Public Works-Flood
Control District ("Public Works" or "LACFCD") owns and operates the Ballona Creek channel
and levee system, which are features of a federally authorized Los Angeles County Drainage Area
("LACDA"). AR 208.
The Corps is the federal agency with jurisdiction over the Ballona Creek channel and levee
system within the Project site. AR 8300. As a result, authorization from the Corps under Section
404 of the Clean Water Act and Sections 10 and 15 of the Rivers and Harbor Act would be
necessary to carry out the Project. AR 8300. Corps approval also would be required to modify
Petitioner Defend requests judicial notice of the Corps' Guidelines for Landscape
Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and
Appurtenant Structures, published April 30, 2014 (*Corps Guidelines"). RJN Ex. A. Petitioners
note that two superseded versions of the Corps Guidelines are in the record (AR 73597-618, 87015)
and that CDFW agreed to allow the inclusion of documents that should have been in the record.
CDFW responds only that RJN Ex. A does not prove that it failed to analyze potential impacts on
flood control levee vegetation and has no objection to judicial notice of RJN Ex A. The request is
granted. Evid. Code $452(c).
Petitioner Defend also requests judicial notice of the following facts: (1) the Project's
Operations and Maintenance Plan (*Operations Plan) states that the levees will be maintained by
applying the Corps Guidelines (AR 5438; RJN No. 2); (2) the Corps Guidelines state that
vegetation must be controlled to limit those habitat characteristics that encourage the creation of
animal burrows. (RJN No. 3); (3) the Corps Guidelines state that an operations and maintenance
manual for levees must include an annual maintenance program to control animal burrows and
vegetative growth (RJN No. 4); (4)the Corps Guidelines require repair of animal burrows (RUN
No. 5); (S) this language is the same as in the Corps Guidelines in the administrative record
(AR73609, 73617, 73618; RJN No. 6); (6) while a local sponsor may request a variance from the
standard vegetation guidelines, such request process must follow specific procedures and meet
certain requirements (Corps. Guidelines; RJN No. 7); and (7) based on the above facts, animal
burrows are not allowed on levees unless a variance is requested and granted (RJN No. 8). The
requested facts are merely Petitioners" interpretation of the Corps Guidelines and Operations Plan
and are not subject to judicial notice. Requests Nos. 2-8 are denied.