1

Filed 6/16/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

NEWTOWN PRESERVATION SOCIETY et al.,

Plaintiffs and Appellants,

v.

COUNTY OF EL DORADO et al.,

Defendants and Respondents.

C092069

(Super. Ct. No. PC20190037)

APPEAL from a judgment of the Superior Court of El Dorado County, Dylan 

Sullivan, Judge. Affirmed.

Soluri Meserve, Patrick M. Soluri and Osha R. Meserve, for Plaintiffs and 

Appellants.

David A. Livingston, County Counsel, Breann M. Moebius, Deputy County 

Counsel, for Defendants and Respondents.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts II through IV of the Discussion.
2

This California Environmental Quality Act (Act) challenge concerns the adoption 

of a mitigated negative declaration for and approval of the Newtown Road Bridge at 

South Fork Weber Creek Replacement Project (the project) by respondents El Dorado 

County (County) and its board of supervisors (collectively respondents). The proposed 

project is the replacement of an existing bridge. Petitioners Newtown Preservation 

Society, an unincorporated association, and Wanda Nagel (collectively petitioners) 

challenged the mitigated negative declaration, arguing, among other things, the project 

may have significant impacts on fire evacuation routes during construction and, thus, the 

County was required to prepare an environmental impact report. The trial court upheld 

the mitigated negative declaration. Petitioners appeal.

Petitioners argue the trial court erred in upholding the mitigated negative 

declaration because: (1) substantial evidence supports a fair argument of potentially 

significant impacts on resident safety and emergency evacuation; (2) the County 

impermissibly deferred analysis of temporary emergency evacuation impacts; (3) the 

County impermissibly deferred mitigation of such impacts; and (4) the County deferred 

analysis of impacts pertaining to construction of a temporary evacuation route. 

In the published portion of this opinion, we explain that petitioners’ framing of the 

fair argument test in terms of the project having “potentially significant impacts on 

resident safety and emergency evacuation” is erroneous. The test is instead whether the 

record contains substantial evidence that the project may have a significant effect on the 

environment or may exacerbate existing environmental hazards. We conclude petitioners 

have failed to carry their burden of showing substantial evidence supports a fair argument 

of significant environmental impact in that regard.

In the unpublished portion of the opinion, we conclude the County did not 

impermissibly defer mitigation and decline to consider the two remaining arguments. 

Finding no merit in petitioners’ contentions, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

I

The Adopted Final Mitigated Negative Declaration

The hazards and hazardous materials section of the adopted final mitigated 

negative declaration stated the project would “[i]mpair implementation of or physically 

interfere with an adopted emergency response plan or emergency evacuation plan” and 

“[e]xpose people or structures to a significant risk of loss, injury or death involving 

wildland fires, including where wildlands are adjacent to urbanized areas or where 

residences are intermixed with wildlands,” but such impacts would be less than 

significant. As to the first impact, the County explained: “It is anticipated that Newtown 

Road would be closed at the Project site with through traffic detoured to Fort Jim Road 

during construction. The Fort Jim Road route is 0.6 miles longer than the Newtown Road 

route, resulting in minimal delays to through traffic. The Old Fort Jim Road detour 

would be approximately 3 miles in length and would require approximately 6 minutes. 

Access will be provided and maintained to all residences adjacent to the Project area. 

The County will prepare a detour plan in conjunction with the engineering plans. Project 

construction activities would be coordinated with [the El Dorado County Sheriff’s Office 

of Emergency Services (Emergency Services Office)] and [the El Dorado County Fire 

Protection District (County Fire)] as described in Section 3.5.3 of this document.” 

Section 3.5.3 provided, in pertinent part: “The contract plans will include a 

temporary evacuation route located downstream from the Project area . . . . This 

temporary evacuation route will cross South Fork Weber Creek downstream from the 

proposed bridge, join the middle portion of the driveway at 4820 Newtown Road, and

then tie back into Newtown Road just upstream from the Project area. Installation of this 

temporary evacuation route will require a temporary construction easement from the 

owner of 4820 Newtown Road . . . . Prior to construction, the County will consult and 

coordinate with the [Emergency Services Office] and [County Fire] regarding evacuation 
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of residents near the Project site in case of fire or other emergency. If the County 

Department of Transportation (DOT), [Emergency Services Office], and County Fire 

determine that the timing of construction (i.e., starting construction early in the year as 

opposed to late in the year) and other conditions and factors warrant the construction of 

the temporary evacuation route, the temporary evacuation route will be constructed in 

conjunction with the full closure of Newtown Road. If County DOT, [the Emergency 

Services Office], and County Fire determine that adequate options exist to evacuate 

and/or shelter in place residents near the Project site in case of a fire or other emergency, 

and the timing of construction and other conditions and factors do not warrant the 

construction of the temporary evacuation route, the temporary evacuation route will not 

be constructed.

“If the temporary evacuation route is constructed, it will only be used in the event 

of an emergency that warrants an evacuation ordered by [the Emergency Services 

Office].

“Regardless of whether or not the temporary evacuation route is constructed, any 

evacuation order or shelter in place order from [the Emergency Services Office] will be 

executed in whatever manner [the Emergency Services Office] deems appropriate for the 

emergency that necessitates the evacuation. Since each emergency has its own unique set 

of circumstances, it is not possible to predetermine the manner (or direction) any specific 

resident will evacuate or shelter in place during a theoretical emergency. Rather, if an 

emergency occurs, [the Emergency Services Office] will utilize its best practices to notify

the public and direct them to evacuate. Examples of best practices for evacuation 

notification include reverse 911 calls and door-to-door notifications by Sheriff’s 

deputies.” 

As to the second impact, the County explained: “The completed Project will not 

expose people or structures to a new or increased significant risk of loss, injury, or death 

involving wildland fires. Project construction activities would be coordinated with local 
5

law enforcement and emergency services providers as applicable. Project impacts are 

less than significant and no mitigation is needed.” 

In master response to comments number 3, the County responded to a letter 

submitted by attorney Marsha Burch on behalf of Nagel, “assert[ing] that project 

construction may prevent ‘a residential area (including over 100 homes) from having the 

ability to effectively evacuate during a wildfire.’ ” The response stated: “First, there are 

only 47 developed parcels that feed to Newtown Road between the two intersections with 

Fort Jim Road. This is clearly shown by viewing publicly available mapping 

websites . . . . There is no factual basis for the assertion that there are 100 homes that 

might be precluded from evacuating effectively. Second, the County has consulted with 

both the [Emergency Services Office] and [County Fire] regarding the proposed closure 

of Newtown Road at the project site. Representatives from both [the Emergency Services 

Office] and [County] Fire were comfortable with the County’s proposal to mitigate the 

closure of Newtown Road.

“Decisions regarding evacuations are made by the [Emergency Services Office].

“The [mitigated negative declaration] includes a temporary emergency evacuation 

route just downstream from the new bridge. As shown on pages 13 and 15 of the 

[mitigated negative declaration], the temporary emergency evacuation route would be 

constructed across Weber Creek downstream from the proposed bridge, onto parcel 077-

431-62 (Ms. Nagel’s property), and up Ms. Nagel’s driveway to Newtown Road, just east 

of the project site. As was stated in the [mitigated negative declaration], if [the 

Emergency Services Office] and the County determines [sic] that it is necessary to build 

the temporary emergency evacuation route, the County will direct its construction

contractor to build it. If [the Emergency Services Office] and the County determine that 

it is not necessary to build the temporary emergency evacuation route, then the County 

will not direct its construction contractor to build it, thereby minimizing temporary 

construction impacts to Ms. Nagel’s property and saving taxpayers tens of thousands of 
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dollars. The decision whether or not to build the temporary emergency evacuation route 

will be primarily driven by the timing of construction. If construction starts in April or 

May, it is less likely that the temporary emergency evacuation route will be needed, since 

by the time fire season starts, construction will be advanced to a point where emergency 

evacuation traffic would be able to be sent through the construction site. Conversely, if 

construction starts later in the year, it is far more likely that the temporary emergency 

evacuation route will be constructed.

“It is important to note that fires and other emergencies are unpredictable and may 

require instantaneous changes to any plan for evacuation that is developed before the 

emergency. The [mitigated negative declaration] did not initially discuss the plans in 

great detail because it could lead people to believe that they should follow a certain 

evacuation route when in fact the conditions of the actual emergency dictate a 

modification to the plan. That said, in order to address the comments raised by 

Ms. Burch, the County is providing more detail for two scenarios as follows:

“Scenario 1: Temporary Emergency Access Route Is Not Constructed

“The area of primary concern with respect to emergency evacuation is along 

Newtown Road between the two intersections with Fort Jim Road. Newtown Road will 

be closed at the project site for several months to allow for construction of the new 

bridge. This will preclude access to the easterly intersection of Newtown and Fort Jim 

for evacuation purposes for 47 developed parcels. Therefore, if a fire occurs that 

necessitates the evacuation of the Newtown Road corridor between the Fort Jim 

intersections, evacuation will need to occur through the westerly intersection of Newtown 

and Fort Jim.

“If a fire blocks Newtown Road east of the westerly intersection of Newtown and 

Fort Jim such that the westerly intersection of Newtown and Fort Jim cannot be used as 

an evacuation route, [the Emergency Services Office] will use other options to evacuate 

residents, including but not limited to the following:
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“1. If site conditions allow, access through the project site to evacuate to the east.

“2. Use of an inactive road that connects the driveway at 4550 Newtown Road 

with the driveway at 3705 Fort Jim Road. This will allow Newtown Road residents to 

evacuate to Fort Jim Road with the option to then go to either Pleasant Valley or 

Placerville. This road has been inspected by [the Emergency Services Office] and can 

accommodate ingress for emergency vehicles and egress for evacuees.

“3. Use of Paso Way to connect to Deer Canyon Road, Pioneer Hill Road, and 

Newtown Road.

“4. Use of Green Canyon Court to connect to Deer Canyon Road, Pioneer Hill 

Road, and Newtown Road.

“5. Use of Paso Way to connect to Deer Canyon Road, Weber Reservoir Road, 

and Snows Road (vehicles without trailers only).

“6. Use of Paso Way to connect to 4701 Paso Court and surrounding area, where 

[the Emergency Services Office] has determined that there is sufficient clear space to 

allow for sheltering in place. Should sheltering in place be required, it will be 

implemented by [the Emergency Services Office] with support from on-scene firefighting 

assets adequate to protect all evacuees present.

“Scenario 2: Temporary Emergency Evacuation Route Is Constructed

“The area of primary concern with respect to emergency evacuation is along 

Newtown Road between the two intersections with Fort Jim Road. Newtown Road will 

be closed at the project site for several months to allow for construction of the new 

bridge. However, in this scenario, if fire blocks access to the westerly intersection of

Newtown and Fort Jim, the temporary emergency evacuation route will open, allowing 

evacuation egress through the site to points east and south. In addition, [the Emergency 

Services Office] may contemplate use of options 2 through 6 listed under Scenario 1.” 
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II

The Litigation

Petitioners filed a petition for writ of mandate challenging the County’s adoption 

of the final mitigated negative declaration. In their opening trial brief in support of the 

petition for writ of mandate, petitioners raised two arguments: (1) respondents abused 

their discretion by failing to properly assess the no-project alternative; and 

(2) respondents abused their discretion by failing to adequately address the impact of 

closing the bridge without committing to construction of an evacuation route in the event 

of fire. Pertinent to the issues raised in this appeal, as the trial court explained, 

“Petitioners essentially contend[ed] that there is substantial evidence in the record to 

support a fair argument that . . . the project will have a significant impact on public safety 

in that the bridge will be closed without [the] County committing to construction of a 

sufficient evacuation route in the event of fire while the bridge is being replaced leaving 

Newtown bridge unavailable for evacuation of homes in the vicinity; and the many 

alternative evacuation plans set forth in the [mitigated negative declaration] are 

insufficient to mitigate the impact of the project that area residents will be exposed to the 

dangers of wildfires without evacuation during the closure of the bridge.” 

The trial court issued a detailed and extensive tentative ruling finding no merit in 

petitioners’ arguments. The trial court thereafter adopted its tentative ruling, denied the 

petition for writ of mandate, entered judgment in favor of respondents, and awarded 

respondents their reasonable costs of suit subject to filing a timely memorandum of costs 

and the outcome of any timely motion to strike or tax costs. 

Petitioners appeal. The trial court’s ruling on the issues pertinent to this appeal are 

set forth in the Discussion that follows.
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DISCUSSION1

I

The Fair Argument Test

A

Applicable Legal Principles

“ ‘With certain limited exceptions, a public agency must prepare an 

[environmental impact report] whenever substantial evidence supports a fair 

argument that a proposed project “may have a significant effect on the environment.” 

[Citations.] “ ‘Significant effect on the environment’ means a substantial, or potentially 

substantial, adverse change in the environment.” ’ ” (Pocket Protectors v. City of 

Sacramento (2004) 124 Cal.App.4th 903, 927.) “If there is substantial evidence in the 

whole record supporting a fair argument that a project may have a significant 

nonmitigable effect on the environment, the lead agency shall prepare an [environmental 

impact report], even though it may also be presented with other substantial evidence that 

1 We address only the arguments raised by appropriate headings in the argument 

portion of petitioners’ briefs. In the procedural history portion of petitioners’ opening 

brief, they note several disagreements with the trial court’s ruling and appear to raise

arguments as to the merits of the statements made in and procedure of adopting the final 

mitigated negative declaration. We do not address those contentions. “Failure to provide 

proper headings forfeits issues that may be discussed in the brief but are not clearly 

identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)

Petitioners also for the first time argue in their reply brief that the evacuation 

options described in master response to comments number 3 were not properly 

incorporated into the mitigated negative declaration and were not made available for 

public comment. As noted herein, the trial court relied upon the evacuation options 

discussed in master response to comments number 3 in its written ruling, yet petitioners

did not raise this argument in the trial court or in its opening brief in this appeal. We thus 

do not consider the argument. (American Indian Model Schools v. Oakland Unified 

School Dist. (2014) 227 Cal.App.4th 258, 275 [“We will not ordinarily consider issues 

raised for the first time in a reply brief”].)
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the project will not have a significant effect.” (Ibid.) “ ‘Substantial evidence’ means 

‘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.’ [Citation.] Substantial evidence ‘shall include facts, reasonable 

assumptions predicated upon facts, and expert opinion supported by facts.’ [Citation.] 

‘Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly 

erroneous or inaccurate, or evidence of social or economic impacts which do not 

contribute to or are not caused by physical impacts on the environment does not 

constitute substantial evidence.’ ” (Id. at pp. 927-928.) “ ‘Complaints, fears, and 

suspicions about a project’s potential environmental impact likewise do not constitute 

substantial evidence.’ ” (Joshua Tree Downtown Business Alliance v. County of San 

Bernardino (2016) 1 Cal.App.5th 677, 690.)

“ ‘Members of the public may . . . provide opinion evidence where special 

expertise is not required. [Citations.]’ [Citation.] However, ‘[i]nterpretation of technical 

or scientific information requires an expert evaluation. Testimony by members of the 

public on such issues does not qualify as substantial evidence. [Citations.]’ [Citation.]

‘[I]n the absence of a specific factual foundation in the record, dire predictions by 

nonexperts regarding the consequences of a project do not constitute substantial 

evidence.’ ” (Joshua Tree Downtown Business Alliance v. County of San Bernardino, 

supra, 1 Cal.App.5th at pp. 690-691.) 

“The fair argument standard is a ‘low threshold’ test for requiring the preparation 

of an [environmental impact report]. [Citations.] It is a question of law, not fact, whether 

a fair argument exists, and the courts owe no deference to the lead agency’s 

determination. Review is de novo, with a preference for resolving doubts in favor of 

environmental review.” (Pocket Protectors v. City of Sacramento, supra, 124 

Cal.App.4th at p. 928.) “Although our review is de novo and nondeferential, however, 

we must ‘ “giv[e] [the lead agency] the benefit of [the] doubt on any legitimate, disputed 
11

issues of credibility.” ’ [Citation.] The lead agency has discretion to determine whether 

evidence offered by the citizens claiming a fair argument exists meets [the Act’s]

definition of ‘substantial evidence.’ ” (Ibid.)

On appeal, an appellant has the burden to demonstrate by citation to the record the 

existence of substantial evidence supporting a fair argument of significant environmental 

impact. (Joshua Tree Downtown Business Alliance v. County of San Bernardino, supra, 

1 Cal.App.5th at p. 688.)

B

The Trial Court’s Ruling

The trial court’s written ruling on the fair argument issue stated: “In support of 

th[e fair argument test] petitioners cited to the following evidence in the administrative 

record: correspondence from attorney Marsha Burch on behalf of petitioner Nagel, dated 

August 3, 2018 [citations]; retired CalFire aerial firefighter James Barnes’ letter to the 

County urging that the project be disapproved [citation]; local resident Lisa Souza’s 

comments at a . . . hearing on the mitigated negative declaration [citation]; comments by 

local resident Bonnie Robertson at a . . . hearing on the mitigated negative declaration 

[citation]; and petitioner Nagel’s comments at a . . . hearing on the mitigated negative 

declaration [citation]. Petitioners also cited for the first time in the reply a portion of Rod 

Souza’s statements during the . . . hearing. [Citation.]

“Resident Lisa Souza stated at the hearing: ‘My name is Lisa Souza. I live at . . . 

Newtown Road. I have sent a letter to all of you that included the picture of the fire that 

happened on the 17th. A pole went down. It was hit, went down on Newtown Road, 

crossed the road, blocked the road, live wires. The fire started across from our home. 

We-we would have been able to get out perhaps, but everybody else between us and 

where the bridge is going to go would be trapped. And the fire department had to go all 

the way around to that side of where the fire was, and they would not have been able to 

get through if that road was closed. Now, this is something very, very serious and I’m a 
12

little emotional about it but, uh, there are a lot of people that live up there, and we’re 

really worried about the fire situation because of our canyon. So, I would like you to 

really that [sic] put that into your hearts and minds when you’re considering this project 

and how it impacts those of us who live in that canyon.’ [Citation.]

“Resident Bonnie Robertson stated at the hearing: ‘No clear evaluation [sic] route 

has been determined for access prior to the approval of this project. The county report 

states that “transportation will consult and coordinate with [the Emergency Services 

Office] and County Fire.” The discussion goes on that “if a route is not determined, that 

regardless of whether or not the temporary evacuation route is constructed, any 

evaluation [sic] order or shelter in place order from [the Emergency Services Office] will 

be executed in whatever manner [the Emergency Services Office] deems appropriate.” 

This is an undetermined evacuation route which is not acceptable.’ [Citation.]

“Petitioner Nagel stated at the hearing: ‘I have 15 years fighting wildfires from 

the air. I am also a widow of a fallen aerial firefighter. I probably have fought between 

500 and 1000 wildland fires. I was initial attack. That meant that my job was to be there 

when it started as soon as possible and to get resources on it, to stop it while it’s small. 

Therefore, we don’t have the conflagration that we see today. I have been at this board 

meeting several times talking to you about our lack of resources from the air have [sic] 

been cut back to probably about maybe 15% of what they were in the previous 15 to 20 

years. Our fires are getting bigger. The conditions are getting worse, and initial attack is 

something that is primary to the saving of lives and property. This project, among other 

things that it does, is it put forth a very flawed fire evacuation route. Part of the route 

when the county says they’re going to take care of it is going to construct a secondary 

bridge across Newtown Road down into my meadow and shuffle people out to the east. 

Sounds good on paper. In reality, the road is 20 feet above the creek and my meadow. 

Now, I would like to see the construction of this bridge that is going to support all the 

scared public as they try to get out in the dark to evacuate this area. I remember when the 
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county okayed the approval of repairing Newtown Road by Hooker Construction. I was 

here then too asking you to stop doing this in the middle of a fire season.’ [Citation.]

“Retired CalFire aerial firefighter James Barnes’ letter to the County stated: ‘For 

the last 35 years I have served as an aerial firefighter throughout the western states and 

North Carolina flying both the large DC-4 and DC-6 airtankers and the Grumman S-2T 

airtanker for CALFIRE. For several years I was based at the Grass Valley and Columbia 

Air Attack Bases. I have fought fires throughout all of the foothills of California and I 

have witnessed the destruction of many communities with the associated loss of life and 

property. I would like to express my concerns about the proposed road project at 

Newtown road in the bottom of the canyon just East of Placerville. During a wildfire, 

evacuation or rescue of Citizens adjacent to this road would be problematic at best and 

the entrapment of large numbers of residents is likely. The proposed road project would 

block one of the primary escape routes from the canyon for at least one full fire season 

and possibly two. The prospect of having many casualties produced by a wildland fire 

should be all to obvious. ¶ In view of the catastrophes that have resulted from the 

Paradise fire and the Santa Rosa, Napa fires it would be gross negligence to ignore the 

danger posed to the Citizens on this deep canyon East of Placerville. Provisions must be 

made to keep the escape routes open during fire season to protect the lives of Citizens 

trying to escape a deadly fast-moving firestorm. ¶ I hope you will give this dire situation 

your most earnest consideration and arrive at a plan that will protect the Citizens and 

taxpayers of Placerville from the death and destruction that a firestorm will produce.’ 

[Citation.]

“Attorney Marsha Burch stated the following in correspondence on behalf of 

petitioner Nagel [citation]: ‘Another overarching concern in this case is the fact that the 

[mitigated negative declaration] ignores potentially significant adverse impacts as a result 

of preventing a residential area (including over 100 homes) from having the ability to 

effectively evacuate during a wildfire. According to the [mitigated negative declaration], 
14

residents may be left without any emergency evacuation route, or one might be created, 

with the only exit being to the west for at least one full fire season, and like many 

construction projects, it is entirely possible it could be for two or more seasons. 

[Citation.] The [mitigated negative declaration] ignores the fact that in the Project area 

fires generally move from west to east, and so these residents could be trapped during a 

wildfire. The [mitigated negative declaration] also says that any analysis or decisions on 

this will be made later. This is no small matter. The County has not even bothered to 

consult with the [Emergency Services Office] and [County Fire], but claims it will do so 

before construction, and that whatever they come up with will be good enough. 

[Citation.] This is not mitigation, this is deferral of analysis and it could lead to the tragic 

deaths of County residents because the County does not want to go through the trouble to

determine how this impact can be mitigated (if at all) before approving the Project. ¶ 

This is absolutely unacceptable and in blatant violation of [the Act], not to mention an 

appalling stance for a public agency to take. It would be nice to have each of the County 

decision makers answer the question on the record whether this ‘we will figure it out 

later’ approach would be acceptable to them if this was their neighborhood. During the 

deadly fires that are presently raging across California, killing people in their homes, is it 

really okay to speculate about this? To say, maybe these folks can just “shelter in place”? 

The obvious answer is, no.’ [Citations.] 

“Resident Rod Souza stated at the . . . hearing: ‘. . . If we had that large wind and 

blow, which we’ve had in that canyon since we’ve been there almost 12 years now, a 

number of times where it really blows. If that happened, we would have had another 

small, obviously not as well populated as-as [sic] Paradise. So that’s something I’m very 

concerned about and would like to make sure that we have the plans of what’s going to 

happen if -- to me, there should be a -- considered in the construction some type of 

temporary way around that construction site so that you can get through which would 
15

help solve that problem, but otherwise you’re struck in a box canyon. Those are my 

concerns. Thank you.’ [Citation.]” 

The trial court further quoted from the master response to comments number 3 and 

considered “the statements of John Kahling of the County Department of Transportation 

[citation] during the . . . hearing. He stated: he spoke with Tim Cordero at County Fire 

and [Emergency Services Office] professionals wherein it was determined that given the 

canyon’s North facing prominence and working in the very early part of fire season in 

April through July, they were very comfortable with the idea the temporary evacuation 

route not being built; if something happens to delay commencement of the project 

resulting in starting the project in July or August, the temporary evacuation route will be 

built and operational in case it is needed; specific evacuation alternatives were set forth at 

the hearing; the [Emergency Services Office] staff went out to the site, walked the 

evacuation route designated on the Souza property, up to the PG&E easement towards 

Fort Jim Road and confirmed that fire apparatus can make it up and down that hill; 

another alternative was to make Newtown passable and if it is not possible to do that and 

get everyone out to the PG&E easement to Fort Jim Road, there are opportunities to 

shelter in place on Paso Way with firefighting assets adequate to protect the people there; 

in response to the comments that were seeking more detail about evacuation the County 

has provided the list of evacuation routes; and based upon that list, the County’s analysis, 

the County’s work with [the Emergency Services Office], and discussions with . . .

County Fire there is no factual basis to the comments about evacuation, or they are not 

credible.” 

The trial court further noted “Supervisor Frentzen acknowledged at the . . .

meeting that the response to public comments ‘was very detailed, to the point, and I also 

see our [Emergency Services Office] staff here, supporting that, [sic] plan for evacuation 

and emergency cases.’ ” 
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The trial court found: “Residents Lisa Souza’s and Rod Souza’s comments are 

merely expressing a concern about the respondent County providing for evacuation of the 

project area residents in the event of a fire during the closure of the Newtown Road 

bridge for the project. It is not substantial evidence raising a fair argument that despite 

setting forth the fire evacuation impact arising from the project’s closure of Newtown 

Road bridge for a period of time during construction and the mitigation by planning for 

multiple evacuation routes, there remains a significant impact to the safety of the area 

residents even when considering the statements of Mr. Kahling during the County Board 

meeting . . . and the evacuation options described in the [mitigated negative declaration] 

including the ones stated in Master Response Comments Number 3. The comments 

failed to set forth any facts concerning the many plans for evacuation set forth in detail in 

the [mitigated negative declaration] that would give rise to a reasonable assumption that 

despite all these alternative evacuation plans, the impact of closing the bridge remained 

significant. Complaints, fears, and suspicions about a project’s potential environmental 

impact do not constitute substantial evidence. Mere argument, speculation or 

unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair 

argument.

“Resident Bonnie Robertson’s comment that no clear emergency evacuation route 

has been determined prior to the approval of this project was also fully addressed by the 

mitigation explained in the [mitigated negative declaration’s] Master Response to 

Comments Number 3. The statement is not substantial evidence raising a fair argument 

that despite setting forth the fire evacuation impact arising from the project’s closure of 

Newtown Road bridge for a period of time during construction and the mitigation by 

planning for multiple evacuation routes, there remains a significant impact to the safety 

of the area residents even when considering the statements of Mr. Kahling during the 

County Board meeting . . . and the evacuation options described in the [mitigated 

negative declaration], including the ones stated in Master Response to Comments 
17

Number 3. The comments failed to set forth any facts concerning the many plans for 

evacuation set forth in detail in the [mitigated negative declaration] that would give rise 

to a reasonable assumption that despite all these alternative evacuation plans, the impact 

of closing the bridge remained significant. . . .

“Petitioner Nagel’s comments concerning the lack of resources to attack wildfires 

from the air is not an environmental impact that [the Act] requires to be mitigated. . . . [¶] 

In addition, petitioner Nagel’s opinion that mitigation by construction of a temporary 

evacuation route is a very flawed fire evacuation route, because it is unlikely to support 

all the scared public as they try to get out in the dark to evacuate this area is not an 

opinion of an expert in construction and ground evacuation routes. Petitioner Nagel has 

not set forth any facts to establish she is an expert in the construction of ground 

evacuation routes . . . and her comments amount to mere argument, speculation, and 

improper opinion that is not substantial evidence supporting a fair argument of a 

significant environmental impact despite mitigation. Furthermore, her comments did not 

discuss the many plans for evacuation set forth in the [mitigated negative declaration] and 

failed to set forth any facts concerning the many plans for evacuation that would give rise 

to a reasonable assumption that despite all these alternative evacuation plans, the impact 

of closing the bridge remained significant. . . .

“Attorney Marsha Burch’s comments on behalf of petitioner Nagel also lacks facts 

establishing that petitioner Nagel and attorney Burch are experts in construction and 

ground evacuation routes, therefore, any opinion as to the sufficiency of the construction 

of a temporary evacuation route or that there are insufficient evacuation routes amount to 

mere argument, speculation, and improper opinion that is not substantial evidence 

supporting a fair argument of a significant environmental impact despite mitigation. . . .

“Attorney Burch’s comments that wildfire evaluation routes have not been 

determined or only one western evacuation route that may not be constructed has been 

designated prior to the approval of this project was also fully addressed by the mitigation 
18

explained in Master Response to Comments Number 3 and the statements of 

Mr. Kahling . . . . Attorney Burch’s comments are not substantial evidence raising a fair 

argument that despite setting forth the fire evacuation impact by the project’s closure of 

Newtown Road bridge for a period of time during construction and the mitigation by 

planning for multiple evacuation routes, there remains a significant impact to the safety 

of the area residents even when considering the statements of Mr. Kahling . . . and the 

evacuation options described in the [mitigated negative declaration], including the ones 

stated in Master Response to Comments Number 3. The comments failed to set forth any 

facts concerning the many plans for evacuation set forth in detail in the [mitigated 

negative declaration] that would give rise to a reasonable assumption that despite all 

these alternative evacuation plans, the impact of closing the bridge remained significant. 

Complaints, fears, and suspicions about a project’s potential environmental impact do not 

constitute substantial evidence. . . . 

“Attorney Burch’s comment that the County has not even bothered to consult with 

the [Emergency Services Office] and [County Fire] was addressed in [Kahling’s 

statements during the hearing]. [¶] Attorney Burch’s legal opinions that the evacuation 

routes specified are not mitigation and there is a deferral of analysis are not admissible 

substantial evidence of a fair argument that there remains a significant environmental 

impact even with the evacuation routes specified by the County in the [mitigated negative 

declaration]. [Citation.]

“Retired CalFire aerial firefighter James Barnes’ letter to the County states an 

opinion that during a wildfire, evacuation or rescue of Citizens adjacent to this road 

would be problematic at best and the entrapment of large numbers of residents is likely; 

and the proposed road project would block one of the primary escape routes from the 

canyon for at least one full fire season and possibly two. Mr. Barnes has not set forth any 

facts to establish he is an expert in ground evacuation routes and, therefore, any opinion 

as to the sufficiency of the ground evacuation routes amount to mere argument, 
19

speculation, and improper opinion that is not substantial evidence supporting a fair 

argument of a significant environmental impact despite mitigation. Furthermore, his 

comments did not discuss the many plans for evacuation set forth in the [mitigated 

negative declaration] and failed to set forth any facts concerning the many plans for 

evacuation that would give rise to a reasonable assumption that despite all these 

alternative evacuation plans, the impact of closing the bridge remained significant. . . .

“In summary, petitioners have not cited substantial evidence in the record that 

raises a fair argument that this project may have a significant non-mitigated impact on the 

environment due to failure to provide adequate evacuation routes for project area 

residents during a wildfire or other emergency during construction of the project.” 

C

Petitioners Have Failed To Carry Their Burden Of Showing Substantial Evidence

Supports A Fair Argument Of Significant Environmental Impact

Petitioners assert the public comments and observations by Nagel, Barnes, the 

Souzas, and Bernard Ross2 constitute substantial evidence supporting “the fair argument 

that the project would have potentially significant impacts on resident safety and 

emergency evacuation.” We disagree that the fair argument standard has been met.

To start, petitioners’ framing of the fair argument test is erroneous. The question 

is not whether substantial evidence supports a fair argument that the proposed project will 

have significant impacts on resident safety and emergency evacuation. As explained 

ante, the question is whether the project may have a significant effect on the environment. 

(South Orange County Wastewater Authority v. City of Dana Point (2011) 196 

2

In their reply trial brief, petitioners relied on a comment from Ross “stating that 

closure of Newtown Road would make it difficult for first responders to gain access to 

the area: ‘Law enforcement cannot overcome a poorly designed road. I have experience 

in that . . . .’ ” The trial court did not address this comment.
20

Cal.App.4th 1604, 1615.) The questions in the sample checklist in appendix G to the 

Act’s guidelines3-- including, whether the project would expose people or structures to a 

significant risk of loss, injury, or death involving wildland fires -- do not extend “the 

[environmental impact report] requirement to situations where the environment has an 

effect on a project, instead of the other way around.” (South Orange County Wastewater 

Authority, at p. 1616.) The Act further “does not generally require an agency to analyze 

how existing hazards or conditions might impact a project’s users or residents,” unless 

the project might exacerbate existing environmental hazards. (California Building 

Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 392.) 

Thus, the question before us is whether the residents’ comments upon which petitioners 

rely (given their burden on appeal) constitute substantial evidence supporting a fair 

argument that the project may have a significant effect on the environment or may 

exacerbate existing environmental hazards. We conclude the comments relied upon do 

not constitute substantial evidence in that regard. 

First, petitioners argue the Souzas discussed their past experiences with wildfires 

in the area and explained that people would be trapped during construction of the project 

if a fire occurred to the west of their property. The Souzas’ statements relate to how 

existing wildfire hazards might impact residents during the project’s construction and do 

not support a fair argument that the project may have a potentially significant effect on 

the environment or may exacerbate existing environmental hazards, i.e., “effects that 

arise because the project brings ‘development and people into the area affected.’ ” 

(California Building Industry Assn. v. Bay Area Air Quality Management Dist., supra, 62

3 The guidelines are regulations for the implementation of the Act codified in title 

14, section 15000 et seq. of the California Code of Regulations, which have been 

developed by the Office of Planning and Research and adopted by the Secretary of the 

Natural Resources Agency. (Pub. Resources Code, § 21083.)
21

Cal.4th at p. 388.) Petitioners further fail to identify any factual foundation for the 

Souzas’ assertion. “ ‘[I]n the absence of a specific factual foundation in the record, dire 

predictions by nonexperts regarding the consequences of a project do not constitute 

substantial evidence.’ ” (Joshua Tree Downtown Business Alliance v. County of San 

Bernardino, supra, 1 Cal.App.5th at p. 691.) 

Second, petitioners argue Barnes expressed “concerns about the lack of an 

emergency evacuation route during Project construction” and said, in his opinion, 

evacuation would be “ ‘problematic at best and the entrapment of large numbers of 

residents is likely’ because the Project would ‘block one of the primary escape routes’ 

from the Project area.” Petitioners fail to identify any factual foundation for Barnes’s 

assertion that a large number of people would likely be trapped during an evacuation

given the existence of the evacuation routes and options identified in the record. That 

assertion is thus mere speculation and does not constitute substantial evidence. Further,

petitioners fail to explain how Barnes’s comments support a fair argument that the project 

may have a potentially significant effect on the environment or may exacerbate existing 

environmental hazards. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 

Cal.App.5th 142, 153 [we disregard arguments that fail to disclose the reasoning by 

which the appellant reached the conclusions he, she, or it asks us to adopt].) Finally, as 

the trial court correctly noted, Barnes did not set forth any facts to establish that he is an 

expert in ground evacuation routes. A lay person’s opinion based on technical 

information that requires expertise does not qualify as substantial evidence. (Joshua Tree 

Downtown Business Alliance v. County of San Bernardino, supra, 1 Cal.App.5th at pp. 

690-691.) Indeed, as the County noted, it had consulted with the Emergency Services

Office and County Fire, agencies with expertise in emergencies and evacuation, and the 

agencies “were comfortable with the County’s proposal to mitigate the closure of 

Newtown Road” through the evacuation routes and options described. While petitioners 
22

note that Barnes is a retired aerial firefighter, they identify no evidence in the record 

establishing he has experience in determining, directing, or effecting evacuation routes.

Third, as to Ross, petitioners assert he commented that he would be a victim when 

a fire starts because they would be trapped with no way out and “detailed his personal 

experiences with wildfires in the area, how fast they can move and how slow responses 

can be.” Like the prior comments relied upon, Ross’s statements relate to how existing 

wildfire hazards might impact residents during the project’s construction; petitioners do 

not explain how these comments support a fair argument that the project may have a 

potentially significant effect on the environment or may exacerbate existing 

environmental hazards. Further, petitioners fail to identify any factual foundation for 

Ross’s assertion that he would be trapped in the event of a fire and, as such, the statement 

is mere speculation and does not constitute substantial evidence.

Finally, petitioners rely on Nagel’s comments that “fires in the area have 

historically moved west to east, which prevents evacuation to the west”4 and “[t]hus, 

while the Newtown Bridge is under construction, residents would not have an emergency 

evacuation route.” Further, Nagel stated the project “included a ‘very flawed [temporary] 

fire evacuation route’ ” and “a prior similar project had been constructed during fire 

season, limiting the emergency routes for local residents.” Like the other comments 

relied upon, Nagel’s comments do not amount to substantial evidence under the fair 

argument test. 

Petitioners fail to explain the pertinence of the west-to-east fire movement 

comment in relation to the evacuation routes and options identified in the record. 

Further, Nagel’s unsubstantiated comment that residents would not have an emergency 

evacuation route is directly contradicted by the evacuation routes and options identified 

4 This comment was actually made by Burch, who represented Nagel. 
23

in the record, and petitioners do not explain how the project may have a potentially 

significant effect on the environment or may exacerbate existing environmental hazards 

in light of those routes and options. Petitioners also do not identify the factual basis and 

foundation for Nagel’s assertions and fail to explain how Nagel’s statement that a prior 

similar project had been constructed during the fire season and had limited emergency 

routes for residents is pertinent to the consideration of this project’s potential 

environmental impacts. For example, there was no comparison provided between the 

evacuation routes proposed for the prior project as compared to this project; nor is there 

any discussion as to how the alleged limited emergency routes in the prior project 

resulted in a significant impact. Moreover, while petitioners note Nagel is an 

experienced firefighter, they do not argue that she has experience in determining, 

directing, or effecting evacuations. Accordingly, Nagel’s lay opinion based on technical 

information that requires expertise does not constitute substantial evidence. (Joshua Tree 

Downtown Business Alliance v. County of San Bernardino, supra, 1 Cal.App.5th at 

pp. 690-691.)

Contrary to petitioners’ assertion, the public comments petitioners rely upon are 

not analogous to the public comments constituting substantial evidence in Arviv, Oro 

Fino, and Protect Niles. (Citing Arviv Enterprises, Inc. v. South Valley Area Planning 

Com. (2002) 101 Cal.App.4th 1333; Oro Fino Gold Mining Corp. v. County of El 

Dorado (1990) 225 Cal.App.3d 872; Protect Niles v. City of Fremont (2018) 25 

Cal.App.5th 1129.) In Arviv, the public comments related to personal observations of 

impacts that had actually occurred from similar projects in the past. (Arviv Enterprises, 

Inc., at pp. 1347-1348.) In Oro Fino, numerous residents testified regarding the noise 

they had experienced during the operation of a similar mineral exploration drilling project

and numerous residents provided evidence of their experiences with the increase in traffic 

and traffic mishaps. (Oro Fino Gold Mining Corp., at pp. 882, 883.) In Protect Niles, 

residents commented as to the aesthetic incompatibility of the project and the traffic 
24

safety hazards that would result from the project due to excessive queueing, a tendency of 

westbound drivers to exceed the posted speed limit, and limited visibility around a 90-

degree curve. (Protect Niles, at pp. 1146, 1151.) As to the traffic impacts, the court 

explained that “[r]esidents’ personal observations of traffic conditions where they live 

and commute may constitute substantial evidence even if they contradict the conclusions 

of a professional traffic study,” especially when, as in that case, “residents cite specific 

facts that call into question the underlying assumptions of a traffic study.” (Id. at 

p. 1152.)

Petitioners assert “[t]he common thread between Arviv, Oro Fino, and Protect 

Niles is that the subject matters local residents opined on would appear to be the types of 

impacts were [sic] some level of expertise would be necessary.” Not so. The common 

thread of those cases is that lay testimony may constitute substantial evidence when the 

personal observations and experiences directly relate to and inform on the impact of the 

project under consideration. In contrast to the public comments in those three cases, 

here, the comments lacked factual foundation and failed to contradict the conclusions by 

agencies with expertise in wildfire evacuations with specific facts calling into question 

the underlying assumptions of their opinions as it pertained to the project’s potential 

environmental impacts. While petitioners assert that the residents’ “[p]ast experiences

with fires indicate that fires to the west of the Project area make using Newtown Road 

Bridge the only viable evacuation route,” the comments relied upon do not establish that 

fact, nor do petitioners cite to the record in support of this assertion. (Italics added.) 

(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [“ ‘[i]f a party fails to support an 

argument with the necessary citations to the record, . . . the argument [will be] deemed to 

have been [forfeit]ed’ ”].) 

Finally, petitioners argue that “[t]he County failed to properly reject the public 

comments as non-credible evidence, because it did not ‘ [“]first identify that evidence 

with sufficient particularity[”] ’ to demonstrate adequate credibility analysis.” (Quoting 
25

Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 208.) We do 

not address this argument in light of our conclusion that petitioners failed to identify 

substantial evidence to support a fair argument that the project may have a significant 

impact on the environment or may exacerbate existing environmental hazards.

II

Deferred Mitigation

A

Applicable Legal Principles

“Generally, it is improper to defer the formulation of mitigation measures. 

[Citations.] However, an exception to this general rule applies when the agency has 

committed itself to specific performance criteria for evaluating the efficacy of the 

measures to be implemented in the future, and the future mitigation measures are 

formulated and operational before the project activity that they regulate begins.” (Center

for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210,

239.) Generally, “ ‘ “[i]mpermissible deferral of mitigation measures occurs when an 

[environmental impact report] puts off analysis or orders a report without either setting 

standards or demonstrating how the impact can be mitigated in the manner described in 

the [environmental impact report].” [Citation.]’ [Citation.]

“ ‘[W]hen, for practical reasons, mitigation measures cannot be fully formulated at 

the time of project approval, the lead agency may commit itself to devising them at a later 

time, provided the measures are required to “satisfy specific performance criteria 

articulated at the time of project approval.” [Citation.] In other words, “[d]eferral of the 

specifics of mitigation is permissible where the local entity commits itself to mitigation 

and lists the alternatives to be considered, analyzed and possibly incorporated in the 

mitigation plan. [Citation.] On the other hand, an agency goes too far when it simply 

requires a project applicant to obtain a biological report and then comply with any 

recommendations that may be made in the report. [Citation.]” [Citation.]
26

“ ‘In sum, “it is sufficient to articulate specific performance criteria and make 

further [project] approvals contingent on finding a way to meet them.” [Citation.] 

Essentially, the rule prohibiting deferred mitigation prohibits loose or open-ended 

performance criteria. Deferred mitigation measures must ensure that the applicant will be 

required to find some way to reduce impacts to less than significant levels. If the 

measures are loose or open-ended, such that they afford the applicant a means of 

avoiding mitigation during project implementation, it would be unreasonable to conclude 

that implementing the measures will reduce impacts to less than significant levels.’ ”

(Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234

Cal.App.4th 214, 240-241.)

B

The Trial Court’s Ruling

As to the deferred mitigation argument, the trial court’s written ruling provided: 

“Seizing on the language in the [mitigated negative declaration] that if timing of the 

construction and other conditions and factors do not warrant construction of the 

temporary evacuation route, it will not be constructed [citation], petitioners contend that 

this amounts to deferral of mitigation. Petitioners ignore the portion of the [mitigated 

negative declaration] on that same page that commits the County to contract for the 

temporary evacuation route and only prior to construction will the final decision to 

construct it be made in consultation with [the Emergency Services Office] and . . . 

County Fire and that it will not be built in connection with full closure of Newtown Road 

only if the timing of construction falls outside the normal fire season and other conditions 

and factors lead to [sic] the County, [the Emergency Services Office], and . . . County 

Fire to determine adequate options exist to evacuate and/or shelter in place residents near 

the project site in the event of fire or other emergency. Petitioners also ignore Master 

Response to Comments Number 3, which addresses comments related to emergency 

evacuation of residents wherein the County expressly states that the decision of whether 
27

to build the temporary evacuation route will be primarily driven by the timing of 

construction, such as if construction starts in April or May it is less likely that the route 

will be needed, because by the time fire season starts, construction will be advanced to 

the point where emergency evacuation traffic would be able to be sent through the 

construction site and if construction starts later in the year, it is far more likely the 

temporary evacuation route will be constructed [citation]; that if the temporary 

evacuation route is not constructed there is no easterly evacuation route, then evacuation 

will occur through the westerly intersection of Newtown and Fort Jim Roads and if the 

fire blocks Newtown Road east of that westerly intersection such that it can not [sic] be 

used, there are six other specifically designated routes for evacuation, with one route 

designed for evacuation and sheltering in place with on-scene firefighting assets adequate 

to protect all evacuees that [sic] are present [citation]; and that if the temporary 

emergency evacuation route is constructed, the temporary evacuation route will be 

opened if the fire blocks access to the westerly intersection of Newton [sic] and Fort Jim 

Roads allowing egress through the project site to points east and south with [the 

Emergency Services Office] contemplating the additional use of the other specified 

evacuation route options, except for the option to go through the project site at the bridge, 

because it will be closed [citation].” 

After citing the pertinent law, the trial court found: “The record establishes that 

the respondent County has identified multiple mitigation measures related to evacuation 

routes, including the possibility of construction of a temporary evacuation route which 

sets forth as the primary consideration for constructing the temporary evacuation route as 

whether the closure of the bridge occurs during the fire season, and the County has 

committed to mitigating the impact of closure of the bridge in relation of [sic] fire and 

emergency evacuations during the project’s construction. The record establishes that 

there is no impermissible deferral of the mitigation measures designed to reduce the 

impact of the project on the risk of project area residents being exposed to a significant 
28

risk of loss, injury or death from wildfires to a less than significant impact by setting 

forth multiple specific planned routes for evacuation.” 

C

The County Did Not Impermissibly Defer Mitigation

Petitioners assert “[t]he County’s assumption that the Project would not have a 

significant impact, while failing to commit to any mitigation, is improper deferral of 

mitigation.” They argue the “County failed to establish specific performance criteria at 

the time of approval” because it “refused to commit itself to any course of action” and did 

not “provide a definitive time table or a specific trigger for construction of the temporary 

emergency evacuation route.” In that regard, petitioners believe Agoura is analogous. 

(Citing Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665.) 

In the pertinent portion of the Agoura decision upon which petitioners rely, the 

court considered the project’s potential impacts to cultural resources. (Save Agoura

Cornell Knoll v. City of Agoura Hills, supra, 46 Cal.App.5th at pp. 686-690.) The City 

of Agoura Hills did not dispute that the project might have significant impacts on cultural 

resources and that mitigation was required to reduce the impacts to less than significant. 

(Id. at p. 686.) The city argued, however, that two mitigation measures were sufficient to 

ensure that an identified prehistoric archaeological site at the project would be avoided 

and undisturbed because the first measure “mandate[d] that ‘the tribal cultural resources 

w[ould] be preserved in place,’ while [the second mitigation measure] require[d] the 

completion of a data recovery program if ‘preservation [became] impossible.’ ” (Id. at 

p. 687.) 

The appellate court disagreed, stating, “[c]ontrary to their contention, . . . neither 

of these measures [were] designed to ensure avoidance of [the prehistoric archaeological 

site] as a tribal cultural resource.” (Save Agoura Cornell Knoll v. City of Agoura Hills,

supra, 46 Cal.App.5th at p. 687.) The court explained: “[The first mitigation measure] 

provide[d] for the monitoring of ground-disturbing activities with allowances for work 
29

stoppages so that ‘appropriate actions’ c[ould] be taken for any significant archeological 

or paleontological resources that [were] discovered at the site. [The second mitigation 

measure] in turn provide[d] for a . . . data recovery excavation program prior to any 

project-related ground disturbance ‘[i]f avoidance of [the prehistoric archaeological site 

was] not possible.’ ” (Ibid.) The mitigated negative declaration did not, however, set 

forth any analysis of whether the prehistoric archaeological site could be avoided and did 

not specify any performance criteria for evaluating the feasibility of avoidance as an 

alternative to excavation. (Ibid.) The city never attempted to define the boundaries of 

the prehistoric archaeological site and never made a finding that it was impractical or 

infeasible to do so. (Ibid.) “On the other hand, the record contain[ed] substantial 

evidence to support a fair argument that avoidance of [the prehistoric archaeological site 

was] not feasible based on the existing project footprint.” (Id. at p. 688.)

The appellate court explained that the second mitigation measure, which would be 

implemented if avoidance of the prehistoric archaeological site was infeasible, among 

other things, “improperly defer[red] mitigation of the project’s impacts to the site by 

delaying formulation of several components of the data recovery plan until some future 

time. [The second mitigation measure] simply provide[d] a generalized list of measures 

to be undertaken by a qualified archaeologist and Native American monitor, but it d[id]

not set forth any performance standards or guidelines to ensure that th[o]se measures 

w[ould] be effective. For instance, the program call[ed] for the future ‘preparation of a 

technical report’ that ‘shall include a mitigation monitoring and reporting plan.’ Yet the

[mitigated negative declaration] d[id] not explain how the undefined monitoring and 

reporting plan would mitigate the potentially significant effects on the site’s cultural 

resources, nor d[id] it specify any criteria for evaluating the efficacy of that plan. There 

[wa]s also no indication in the record that it was impractical or infeasible for the City to

articulate specific performance criteria for th[o]se data recovery measures at the time of 
30

project approval.” (Save Agoura Cornell Knoll v. City of Agoura Hills, supra, 46

Cal.App.5th at p. 688.)

Petitioners assert that, “[a]s in Agoura, the County has offered two de facto

mitigation measures for the Project’s emergency evacuation impacts, namely the two 

‘scenarios’ described in the [mitigated negative declaration], wherein one would be 

necessary if the other was not feasible or effective.” (Fn. omitted.) In petitioners’ view, 

“[l]ike in Agoura where the lead agency failed to analyze whether avoidance was 

feasible, the [mitigated negative declaration] here does not include any analysis of 

whether the alternative mitigation routes would be effective.” 

Agoura is not analogous. The County explained that decisions regarding 

evacuations are made by the Emergency Services Office. Master response to comments 

number 3 states the County had consulted with the Emergency Services Office and 

County Fire regarding the project and both agencies “were comfortable with the County’s 

proposal to mitigate the closure of Newtown Road.” The County further explained it 

would coordinate with the Emergency Services Office and County Fire prior to 

construction to ensure adequate evacuation options are in place in the event of a fire or 

other emergency, “any evacuation order or shelter in place order from [the Emergency 

Services Office] will be executed in whatever manner [the Emergency Services Office]

deems appropriate for the emergency that necessitates the evacuation” and, in that regard, 

the Emergency Services Office will use “best practices to notify the public and direct 

them to evacuate.” In other words, the agency with the expertise and authority over 

evacuations approved of the mitigation proposed and would continue to play a key role in 

determining which mitigation measures to employ in a given emergency. The record also 

shows that it was impractical and infeasible for the County to articulate which evacuation 

option would be implemented in a specific emergency. As the County explained, 

“[s]ince each emergency has its own unique set of circumstances, it is not possible to 

predetermine the manner (or direction) any specific resident will evacuate or shelter in 
31

place during a theoretical emergency” and “fires and other emergencies are unpredictable 

and may require instantaneous changes to any plan for evacuation that is developed 

before the emergency.” The County’s analysis is thus not akin to the city’s analysis in 

Agoura.

We also disagree with petitioners’ assertion that the County failed to commit itself 

to a course of action, failed to commit to any mitigation, and did not provide a timetable 

or trigger for construction of the temporary emergency evacuation route. In addition to 

the information noted in the foregoing paragraph, the mitigated negative declaration 

provided that the contract plans will include the construction of the temporary evacuation 

route and the County will consult with the Emergency Services Office, County Fire, and

the County Department of Transportation prior to construction of the project to determine 

whether the temporary evacuation route should be constructed. In other words, the 

decision whether to construct the temporary evacuation route will be a coordinated effort. 

The mitigated negative declaration further provides that the decision whether to construct 

the temporary emergency evacuation route will be made prior to the project’s 

construction, and the criteria for that decision will include the timing of the construction 

in relation to the fire season. 

This is not a situation where mitigation is based on “loose or open-ended 

performance criteria” such that the mitigated negative declaration affords the County a 

means of avoiding mitigation during project implementation. (Center for Biological

Diversity v. Department of Fish & Wildlife, supra, 234 Cal.App.4th at p. 241.) “Deferral

of the specifics of mitigation is permissible where the local entity commits itself to

mitigation and lists the alternatives to be considered, analyzed and possibly incorporated

in the mitigation plan.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261,

1275.) The County need not commit to a particular mitigation measure, as long as it

commits to mitigating the impacts of the project. (California Native Plant Society v. City 

of Rancho Cordova (2009) 172 Cal.App.4th 603, 621.) The details of exactly how 
32

mitigation will be achieved under the identified measures can be deferred pending further 

review by the agencies responsible for emergency evacuation based on the circumstances 

presented when construction of the project starts, with the primary consideration for 

constructing the temporary evacuation route being whether the bridge is closed during the 

fire season. (See ibid.) The County thus did not impermissibly defer mitigation of the 

project’s impacts.

III

We Do Not Consider Petitioners’ Argument That The County 

Deferred Analysis Of Temporary Emergency Evacuation Impacts

Petitioners claim the County unlawfully failed to analyze and instead deferred the

analysis as to the following impacts: (1) whether the project requires a temporary

emergency evacuation route; (2) whether the project would expose people to a significant

risk of loss, injury or death involving wildland fires; and (3) whether the project would

result in inadequate emergency access. Petitioners further assert that, “[b]y deferring

analysis of these impacts, the County also deferred analysis of whether mitigation is

necessary,” relying on Lotus. (Citing Lotus v. Dept. of Transportation (2014) 223

Cal.App.4th 645.)5 Petitioners argue that, like in Lotus, the “[t]he strategy of

incorporating mitigation measures as part of a project to avoid analysis of the mitigated

impacts violates [the Act’s] public disclosure mandates.”

Respondents counter that petitioners’ “failure to identify substantial evidence in

the record establishing a fair argument of a significant impact to evacuation routes during

Project construction is dispositive of their deferral argument.” Respondents further assert

petitioners “are arguing for the first time on appeal that the County mischaracterized the

temporary culvert as part of the Project when it is in fact mitigation.” 

5 Petitioners further contrast Lotus with Mission Bay Alliance v. Office of 

Community Investment & Infrastructure (2016) 6 Cal.App.5th 160.) 
33

We agree with respondents on both fronts. “Because the concept of deferral of

environmental review does not change the threshold imposed by the fair argument test,

there is no need for a separate inquiry. In other words, the idea of deferral is subsumed in

the fair argument test, which considers whether a potential environmental impact is

speculative or reasonably foreseeable; undertaking a separate inquiry would be

redundant.” (County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th

1544, 1600.)

Petitioners’ Lotus argument also presents a new theory not advanced in the trial

court. In the trial court, petitioners argued that “respondents abused their discretion in

failing to adequately address impacts in the [mitigated negative declaration] and in failing

to prepare a full [environmental impact report].” (Capitalization and bolding omitted.) 

Petitioners’ theories in support of this argument were: (1) substantial evidence supports a

fair argument that the project may have significant emergency evacuation impacts; and

(2) respondents improperly deferred mitigation “of the impact of a fire during

construction.” The trial court addressed both of petitioners’ arguments in its written

ruling. Petitioners’ argument that respondents incorporated mitigation measures as part

of the project was not raised in the trial court. Petitioners’ assertion in their reply brief

that a heading in their opening trial brief preserved the issue for appeal is unavailing. A

heading is not argument based on cogent reasoning with citations to the record and legal

authority. Because petitioners assert this new theory for the first time on appeal, we

decline to consider it. (See Hussey-Head v. World Savings & Loan Assn. (2003) 111 

Cal.App.4th 773, 783, fn. 7.) We further note petitioners have made no effort to

demonstrate they exhausted their administrative remedies in asserting the theory in the

administrative process either. (See Save Agoura Cornell Knoll v. City of Agoura Hills,

supra, 46 Cal.App.5th at pp. 676-677 [exhaustion of administrative remedies requires

that the exact issue must have been presented to the administrative agency].)
34

IV

We Do Not Consider Petitioners’ Argument That The County Deferred Analysis 

Of Impacts Related To Construction Of The Temporary Evacuation Route

In approximately one page, petitioners assert the County violated the Act by 

failing to analyze whether the mitigation measure itself, i.e., the construction of a 

temporary evacuation route, would create new significant impacts because “[t]he County

has floated, but not committed to, the idea of building a temporary emergency evacuation 

route for use when the Project is under construction.” Respondents assert petitioners are 

barred from asserting this argument on appeal because they failed to raise it in the trial 

court. Petitioners do not respond to respondents’ forfeiture argument in their reply.

Respondents are correct that petitioners did not raise this argument in the trial 

court. As stated in the preceding section, we thus do not consider the argument on 

appeal.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(1)-(2).)

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Hoch, J.

/s/ 

Renner, J.