Filed 8/31/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

BAY AREA CLEAN ENVIRONMENT, 

INC.,

Plaintiff and Appellant,

 v.

SANTA CLARA COUNTY et al.,

Defendants and Respondents;

LEHIGH SOUTHWEST CEMENT 

COMPANY et al.

Real Parties In Interest and 

Respondents.

 H040789

 (Santa Clara County

 Super. Ct. No. 1-12-CV229236)

The Permanente Quarry (Quarry) is a 3,510-acre surface mining operation 

producing limestone and aggregate for the manufacture of cement, and is located in an 

unincorporated area of Santa Clara County. The Quarry has been in existence since 

1903, and is currently owned by Lehigh Southwest Cement Company and Hanson 

Permanente Cement (collectively “Lehigh”). 

At issue in this case is the Santa Clara County Board of Supervisors’ (County)

2012 approval of a reclamation plan amendment for closing and reclaiming the Quarry’s 

mining operations over a 20-year period. The County approved the reclamation plan 

amendment following a review under the California Environmental Quality Act (CEQA)
2

(Pub. Resources Code, § 21000, et seq.) and certification of an environmental impact 

report. 

Bay Area Clean Environment, Inc. (Bay Area) is a non-profit organization that 

represents residents of Santa Clara County. On July 26, 2013, Bay Area filed a petition 

for peremptory writ of mandate challenging the County’s approval of the reclamation

plan amendment. Bay Area asserted claims under the Surface Mining and Reclamation 

Act (SMARA) (Pub. Resources Code, § 2710, et seq.) and CEQA.

The trial court denied Bay Area’s writ petition, affirming the County’s approval of 

the reclamation plan amendment. Bay Area appeals the denial of the petition, arguing 

that the trial court erred in affirming the County’s decision, because the reclamation plan 

amendment does not comply with SMARA and CEQA.1

STATEMENT OF THE FACTS AND CASE2

The Quarry is located at the end of Permanente Road, which is the continuation of 

Stevens Creek Road in unincorporated Santa Clara County near the western border of the 

 

1

 The Towns of Los Altos Hills and Atherton, and the cities of Cupertino and Los 

Altos filed an application to file an amicus curiae brief in support of Bay Area. County 

requested leave to file an objection to the application. We granted County leave to file 

the objection, and deferred consideration of the application and the objection with the 

appeal. County’s objection to the application to file an amicus brief is overruled and the 

application is granted. 

2

 Bay Area filed a request for judicial notice that we deferred for consideration 

with the appeal. The first item that is the subject of Bay Area’s request is the fact that 

Midpeninsula Regional Open Space District brought an action against Santa Clara 

County alleging the same claims as were alleged in the trial court in this case. 

Midpeninsula filed a notice of appeal in this court in case number H040839 and later 

dismissed the appeal. We take notice of the action under Evidence Code section 452, 

subdivision (c). 

Bay Area’s request that we take judicial notice of information contained in the 

Federal Register about aquatic life is denied, because it is not properly noticeable under 

Evidence Code section 452.
3

city of Cupertino. Since 1903, the Quarry has been conducting a surface mining 

operation producing limestone and aggregate. 

In 1939, The Permanente Corporation (Permanente) purchased the Quarry

property, which at that time consisted of approximately 1,300 acres. From the date of the 

original purchase in 1939, Permanente expanded the Quarry’s operations, opening new 

mining areas on the property, and acquiring adjacent land. By 2011, the Quarry had 

grown to 3,510 acres.

The Quarry has a central pit where limestone and other rock are mined. There are 

two overburden3storage areas surrounding the pit. The Quarry also contains a rock 

crushing area and administrative offices. The quarry operates within the upper portion of 

the Permanente Creek watershed. The creek flows east and borders the south side of the 

pit, then leaves the Quarry property and runs to the bay.

The Quarry’s first reclamation plan was approved by the County in 1985, and was 

meant to be updated after a 25-year period. In 2006, the Department of Conservation 

found that the Quarry was in violation of SMARA, because the 1985 reclamation plan 

did not provide a solution for slope instability. In response to the Department of

Conservation’s finding, the County issued a notice of violation to the Quarry in 

October 2006, ordering that the 1985 plan be amended to address slope instability, and to 

expand the boundaries to encompass all areas disturbed by mining. 

In addition to slope instability occurring in the Quarry, selenium levels 

downstream of the Quarry were discovered to be above normal levels. The elevated 

selenium levels could adversely affect aquatic life in the downstream areas. The 

selenium levels were the result of mining operations that caused limestone surfaces to be 

exposed to oxygen and water. 

 

3

 Overburden in mining is the “material overlying a deposit of useful geological 

materials or bedrock.” (Merriam-Webster 10th Collegiate Dict. (2001) p. 826.)
4

In April 2007, Lehigh filed an application to amend the 1985 reclamation plan. 

Since that time, three amendment applications have been filed. The 2007 and 2010 

amendments included proposals to open new mining areas to replace the reclaimed pit. 

Specifically, the 2010 amendment proposed the creation of a new pit in an area south of 

Permanente Creek, called the South Quarry. The July 2011 application that is the subject 

of this appeal did not in include the South Quarry proposal, and superseded all earlier 

applications.

The County issued a draft environmental impact report for public review on 

December 23, 2011. The County set a 60-day review period, ending February 21, 2012. 

The County Planning Commission held five workshops to receive public input and 

comment. In May 2012, the County published the final environmental impact report that 

consisted of the draft as well as public comments and revisions to the draft. At the 

June 7, 2012 meeting, the Planning Commission approved the reclamation plan

amendment, certified the final environmental impact report, and made CEQA findings. 

Following an appeal of the County Planning Commission’s action, the County 

reviewed the reclamation plan amendment. On June 26, 2012, the County voted to

approve the reclamation plan amendment and certify the environmental impact report. In 

doing so, the County found that the reclamation plan amendment was designed to protect 

water quality and was consistent with SMARA and County ordinances. The County also 

found that the reclamation plan amendment would achieve compliance with all applicable 

water standards and the 5.0 micrograms per liter selenium standard. The County found 

that the potential impacts of excess selenium runoff during the 20-year period of 

reclamation were significant and unavoidable, because the effectiveness of the mitigation 

measures during that period was uncertain. Finally, based on information provided by 

water-quality experts, the County found that a water treatment facility was not feasible 
5

because the technology for such a facility would be unproven and the costs were 

disproportionately high.4

On July 26, 2012, Bay Area filed a petition for writ of mandate in the Santa Clara 

County Superior Court, asserting claims under SMARA and CEQA. On

November 29, 2012, the Midpeninsula Regional Open Space District (Midpeninsula) also 

filed suit alleging CEQA claims. The two actions were consolidated for hearing and on 

September 13, 2013, the court affirmed the County’s approval of the reclamation plan 

amendment. A consolidated judgment was entered denying both petitions for writ of 

mandate. Midpeninsula filed a notice of appeal in this court on February 27, 2014, and 

Bay Area filed its notice on March 3, 2014.

Midpeninsula settled its dispute with Lehigh, and dismissed its appeal on August 

20, 2014. Bay Area proceeds with this appeal. 

DISCUSSION

On appeal, Bay Area asserts that in approving the reclamation plan amendment for 

the Quarry, the County violated SMARA and CEQA. Bay Area also argues that the trial 

court erred in allowing the County to augment the administrative record.

SMARA Claims

Bay Area argues that the County abused its discretion when it determined that the 

reclamation plan amendment satisfied SMARA regulatory standards for water quality and 

wildlife habitat. (Pub. Resources Code, § 2710, et seq.) The reclamation plan 

amendment in this case was designed to reclaim all of the land affected by mining 

operations in the Quarry and would occur over a 20-year period.

 

4

 Bay Area filed a motion to strike portions of the County’s brief that included 

information regarding Lehigh’s implementation of a water treatment system to reduce 

selenium levels. This information was not part of the administrative record and was not 

considered by the County. Bay Area’s motion to strike page 19 in the final paragraph 

beginning, “These protections . . .” through the end of the paragraph on page 20, and 

page 25, last line, parenthetical phrase “(which is now in operation)” is granted.
6

SMARA was enacted in 1975 to implement a comprehensive surface mining and 

reclamation policy, which would, among other objectives, prevent or minimize adverse 

environmental effects and eliminate residual public health and safety hazards generally 

attendant to surface mining. (Pub. Resources Code, § 2712.) Also in 1975, the County 

amended its mining ordinance to require mine operators to periodically obtain a 

certificate of compliance. A certificate of compliance verifies that existing mining

operations comply with permit conditions, County ordinances, and federal and state 

statutes. (Santa Clara County Code, §§ 16.54.020, 16.54.100.) In 1987, SMARA was 

amended to require existing mining operations without approved reclamation plans to 

submit proposed reclamation plans by March 31, 1998 for approval by the lead agency. 

(Pub. Resources Code, § 2770, subds. (a), (b).) “Reclamation” is land treatment that 

minimizes the adverse effects of mining operations so that mined lands may be reclaimed 

to a usable condition. (Pub. Resources Code, § 2733.) 

Approval of a reclamation plan under SMARA is reviewed for abuse of discretion 

pursuant to Code of Civil Procedure section 1094.5. (Hansen Bros. Enterprises, Inc. v. 

Board of Supervisors (1996) 12 Cal.4th 533, 543.) We consider all reasonable inferences 

from the administrative record in favor of the agency. (Evid. Code, § 664; Norris v. State 

Personnel Bd. (1985) 174 Cal.App.3d 393, 396.)

Water Quality

SMARA’s water quality provisions state the following: “(a) Surface mining and 

reclamation activities shall be conducted to protect on-site and downstream beneficial 

uses of water in accordance with the PorterCologne Water Quality Control Act, Water 

Code section 13000, et seq., and the Federal Clean Water Act, 33 U.S.C. section 1251, et 

seq. (b) The quality of water, recharge potential, and storage capacity of ground water 

aquifers which are the source of water for domestic, agricultural, or other uses dependent 

on the water, shall not be diminished, except as allowed in the approved reclamation 
7

plan. (c) Erosion and sedimentation shall be controlled during all phases of construction, 

operation, reclamation, and closure of a surface mining operation to minimize siltation of 

lakes and watercourses, as required by the Regional Water Quality Control Board or the 

State Water Resources Control Board. (d) Surface runoff and drainage from surface 

mining activities shall be controlled by berms, silt fences, sediment ponds, revegetation, 

hay bales, or other erosion control measures, to ensure that surrounding land and water 

resources are protected from erosion, gullying, sedimentation and contamination. Erosion

control methods shall be designed to handle runoff from not less than the 20 year/1 hour 

intensity storm event.” (Cal. Code of Reg., tit. 14, § 3706.)

The County found that the reclamation plan amendment met the standards for 

water quality as set forth in SMARA. In making this finding, the County relied on a 

hydrologic investigation prepared by Golder Associates that was contained within the 

reclamation plan amendment itself. The investigation stated different types of water 

sampling, laboratory analysis and testing, and included the collection of water samples in 

Permanente Creek and other nearby creeks, groundwater sampling from Quarry wells, 

and field “wall wash” tests.

In addition to the investigation report, the reclamation plan amendment also 

contained a water quality report that was prepared by Strategic Engineering & Science, 

Inc., a company specializing in water analysis. The report contained analysis of water 

data that had been collected by Golder, and provided a prediction of future water quality

if the reclamation plan amendment were to be implemented. The report projected that the 

strategies stated in the reclamation plan amendment would amount to the water quality 

meeting acceptable standards. The specific reclamation strategies included backfilling of 

the Quarry pit and placing non-limestone on the exposed areas of limestone which would 

reduce the amount of the Quarry’s release of selenium. In addition, the Quarry’s release 

of selenium would be reduced by mixing organic matter into the backfill.
8

Bay Area concedes that when completed, the reclamation plan amendment would 

meet the requirements of California Code of Regulations, Title 14, sections 3706 and 

3710. However, Bay Area argues that during the 20-year interim period of the 

reclamation activities, water quality downstream of the Quarry would deteriorate because 

there would be an increase in selenium contamination in Permanente Creek. Specifically, 

Bay Area asserts that during the interim period, selenium-containing limestone and 

overburden would be deposited in and moved around within the Eastern Mineral Storage 

Area and the Quarry pit. According to Bay Area, the continued degradation of water 

quality due to selenium contamination during the interim period would violate SMARA.

Bay Area’s argument that the reclamation activities would cause further water 

contamination and would violated SMARA is inconsistent with the provisions of 

SMARA itself. Specifically, California Code of Regulations, Title 14, section 3706, 

subdivision (b) provides that water quality may be affected if it is necessary to complete a 

reclamation plan. Here, according to SMARA, the County had discretion to allow 

reclamation actions that were necessary to achieve compliance with federal and state 

water laws, including potential additional selenium deposits in the water. This 

occurrence as a result of the reclamation activities does not mean that the reclamation 

plan amendment violates SMARA.

Here, the record supports the County’s finding that the reclamation plan 

amendment complies with SMARA with regard to water quality. The County did not 

abuse its discretion.

Wildlife Habitat

In addition to water quality, Bay Area also argues that the reclamation plan 

amendment does not comply with SMARA’s standards for preservation of wildlife 

habitat. California Code of Regulations, Title 14, section 3703, subdivision (b) provides: 

“Wildlife habitat shall be established on disturbed land in a condition at least as good as 
9

that which existed before the lands were disturbed by surface mining operations, unless 

the proposed end use precludes its use as wildlife habitat or the approved reclamation 

plan establishes a different habitat type than that which existed prior to mining.”

The California red-legged frog (frog) is protected under the Federal Endangered 

Species Act, and lives in Permamente Creek downstream of the Quarry pit and the 

eastern mineral storage area. The frog was found in the lower segment of the creek 

outside of the reclamation plan amendment’s boundary in 1997. The frog has remained 

confined to this area since its discovery.

Bay Area argues that the reclamation plan amendment does not comply with the 

wildlife provisions of SMARA, because it does not specifically mention the frog. In 

addition, Bay Area asserts that the reclamation plan amendment does not protect the frogs 

that are located downstream of the Quarry from selenium released by the reclamation 

work itself.

While the reclamation plan amendment does not itself mention the frog, the record 

in this case shows that a study of wildlife species was appended to the reclamation plan 

amendment entitled “Biological Resources Assessment,” which included a description of 

the frog’s habitat and results of surveys tracking the location of the frog within the 

vicinity of the Quarry. The assessment stated that because the frog was not found within

the reclamation plan amendment boundaries, it would not be directly affected by the 

reclamation activities. However, the assessment also provided protective measures such 

as pre-construction surveys and daytime only work to limit the potential risk of harming 

the frog if it swam upstream into Permanente Creek.

In addition, the environmental impact report analyzed the potential selenium 

impact to aquatic wildlife downstream of the creek, including the frog. The report

recommended measures to mitigate the effect of the selenium runoff. These measures 

included the study and design of a water treatment facility and water protection measures. 
10

However, the report concluded that the impacts of selenium discharge to aquatic life 

downstream of the Quarry as a result of reclamation activities were significant and 

unavoidable, because the effectiveness of the proposed mitigation measures was 

unknown. 

In its June 26, 2012 findings, the County adopted the information in the 

environmental impact report, and imposed new water protections as suggested in the 

report, and concluded that the selenium runoff impacts were significant and unavoidable.

Contrary to Bay Area’s assertion, the record supports the conclusion that impacts 

of the reclamation activities on the frog as a result of reclamation activities were 

considered by the County, and were mitigated to the extent possible under the 

circumstances. The County’s conclusion that the reclamation plan amendment ultimately 

protected the frog and its habitat is supported by the record. The record shows that the 

reclamation plan will reduce the selenium levels in Permanente Creek and will ultimately 

improve the conditions for the frog. The reclamation plan amendment also adopted the 

provisions of the environmental impact report to restrict work near the creek and to 

conduct pre-construction surveys of the area so that the frog would not be directly 

affected by the reclamation. 

Office of Mining Reclamation’s Statements Related to SMARA

Bay Area argues that the statements of the Office of Mining Reclamation to the 

Department of Conservation that the reclamation plan amendment complied with 

SMARA were not substantial evidence to support the County’s findings in this case.

The Department of Conservation is a state agency that oversees the administration 

of SMARA in reclamation plans. (See Dept. of Conservation v. El Dorado County

(2005) 36 Cal.4th 971, 988-989.) The Department of Conservation reviews all new and 

amended reclamation plans. (Pub. Resources Code, § 2774, subds. (c) & (d).) In its 
11

regulatory role, the Department of Conservation is permitted to appeal and comment at a 

public hearing to review a reclamation plan. (Id.)

Here, based on the statements of the Office of Mining Reclamation, the 

Department of Conservation made a formal determination that the reclamation plan 

amendment complies with the standards set forth in SMARA, including those for water 

quality and wildlife habitat. (Code of Regulations, tit. 14, §§ 3703, 3706.) The 

Department of Conservation’s conclusion that the reclamation plan amendment complied 

with SMARA constitutes substantial evidence upon which the County relied in its 

findings. 

Conclusion on the SMARA Claims

We find that the County did not abuse its discretion when it determined that the 

reclamation plan amendment satisfied SMARA’s regulatory standards for water quality 

and wildlife habitat. (Pub. Resources Code, §§ 2710, et seq.) In addition, the statements 

of the Office of Mining Reclamation were properly considered by the County and 

provided substantial evidence to support the County’s findings.

CEQA Claims

Bay Area asserts that the environmental impact report for the reclamation plan 

amendment violates the provisions of CEQA. Specifically, Bay Area argues that the 

environmental impact report does not state a sufficient cumulative impact analysis, and 

that the County’s CEQA findings supporting certification of the report are not supported 

by substantial evidence. 

“A public agency must prepare an [environmental impact report] or cause an 

[environmental impact report] to be prepared for any project that it proposes to carry out 

or approve that may have a significant effect on the environment. (Pub. Resources Code, 

§§ 21100, subd. (a), 21151, subd. (a); Guidelines, § 15064, subd. (a)(1).) The 

[environmental impact report] must describe the proposed project and its environmental 
12

setting, state the objectives sought to be achieved, identify and analyze the significant 

effects on the environment, state how those impacts can be mitigated or avoided, and 

identify alternatives to the project, among other requirements. (Pub. Resources Code, 

§§ 21100, subd. (b), 21151; Guidelines, §§ 15124, 15125.)

“The agency must notify the public of the [draft environmental impact] report, 

make the draft [environmental impact report] and all documents referenced in it available 

for public review, and respond to comments that raise significant environmental issues.

(Pub. Resources Code, §§ 21091, subds. (a), (d), 21092; Guidelines, §§ 15087, 15088.) 

The agency also must consult with and obtain comments from other agencies affected by 

the project and respond to their comments. (Pub. Resources Code, §§ 21092.5, 21104, 

21153; Guidelines, § 15086.) It must prepare a final [environmental impact report]

including any revisions to the draft [environmental impact report], the comments received 

from the public and other agencies, and responses to comments. (Guidelines, §§ 15089, 

subd. (a), 15132.)

“An agency may not approve a project that will have significant environmental 

effects if there are feasible alternatives or feasible mitigation measures that would 

substantially lessen those effects. (Pub. Resources Code, §§ 21002, 21002.1, subd. (b); 

Guidelines, § 15021, subd. (a)(2); [citation].) An agency may find, however, that 

particular economic, social, or other considerations make the alternatives and mitigation 

measures infeasible and that particular project benefits outweigh the adverse 

environmental effects. (Pub. Resources Code, § 21081, subds. (a)(3), (b); Guidelines, 

§ 15091, subd. (a)(3).) Specifically, an agency cannot approve a project that will have 

significant environmental effects unless it finds as to each significant effect, based on 

substantial evidence in the administrative record, that (1) mitigation measures required in 

or incorporated into the project will avoid or substantially lessen the significant effect; 

(2) those measures are within the jurisdiction of another public agency and have been 
13

adopted, or can and should be adopted, by that agency; or (3) specific economic, legal, 

social, technological, or other considerations make the mitigation measures or 

alternatives identified in the [environmental impact report] infeasible, and specific 

overriding economic, legal, social, technological, or other benefits outweigh the 

significant environmental effects. (Pub. Resources Code, §§ 21081, 21081.5; Guidelines, 

§§ 15091, subds. (a), (b).) A finding that specific overriding project benefits outweigh

the significant environmental effects (Pub. Resources Code, § 21091, subd. (b)) is known 

as a statement of overriding considerations. (Guidelines, § 15093.)

“Thus, a public agency is not required to favor environmental protection over 

other considerations, but it must disclose and carefully consider the environmental 

consequences of its actions, mitigate adverse environmental effects if feasible, explain 

the reasons for its actions, and afford the public and other affected agencies an 

opportunity to participate meaningfully in the environmental review process. The 

purpose of these requirements is to ensure that public officials and the public are aware of 

the environmental consequences of decisions before they are made.” (Federation of 

Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1197-

1198, fns. omitted.)

CEQA depends on the environmental impact report. “An environmental impact

report is an informational document” the purpose of which “is to provide public agencies 

and the public in general with detailed information about the effect which a proposed 

project is likely to have on the environment; to list the ways in which the significant 

effects of such a project might be minimized; and to indicate alternatives to such a 

project.” (Pub. Resources Code, § 21061) According to our Supreme Court, “The 

purpose of an [environmental impact report] is to give the public and government 

agencies the information needed to make informed decisions, thus protecting ‘ “not only 

the environment but also informed self-government.” ’ [Citation.] The [environmental 
14

impact report] is the heart of CEQA, and the mitigation and alternatives discussion forms 

the core of the [environmental impact report].” (In re Bay-Delta Etc. (2008) 43 Cal.4th

1143, 1162.)

Once the environmental impact report has been adopted, the scope of judicial 

scrutiny proceeds along two paths. “ ‘Section 21168.5 [of the Public Resources Code] 

provides that a court’s inquiry in an action to set aside an agency’s decision under CEQA 

“shall extend only to whether there was a prejudicial abuse of discretion. Abuse of 

discretion is established if the agency has not proceeded in a manner required by law or if 

the determination or decision is not supported by substantial evidence.” As a result of 

this standard, “The court does not pass upon the correctness of the [environmental impact 

report’s] environmental conclusions, but only upon its sufficiency as an informative 

document.” [Citation.]’ [Citations.] ‘We may not set aside an agency’s approval of an 

[environmental impact report] on the ground that an opposite conclusion would have 

been equally or more reasonable.’ [Citation.] [¶] ‘An appellate court’s review of the 

administrative record for legal error and substantial evidence in a CEQA case, as in other 

mandamus cases, is the same as the trial court’s: The appellate court reviews the 

agency’s action, not the trial court’s decision; in that sense appellate judicial review 

under CEQA is de novo.’ [Citation.]” (In re Bay-Delta Etc., supra, 43 Cal.4th 1143, 

1161-1162.)

“The agency is the finder of fact and a court must indulge all reasonable inferences 

from the evidence that would support the agency’s determinations and resolve all 

conflicts in the evidence in favor of the agency’s decision. [Citation.] ‘ “Technical 

perfection is not required; the courts have looked not for an exhaustive analysis but for 

adequacy, completeness and a good-faith effort at full disclosure.” ’ [Citation.] ‘A 

court’s task is not to weigh conflicting evidence and determine who has the better 

argument when the dispute is whether adverse effects have been mitigated or could be 
15

better mitigated. We have neither the resources nor scientific expertise to engage in such 

analysis, even if the statutorily prescribed standard of review permitted us to do so.’

[Citation.] ‘[T]he relevant inquiry here is not whether the record establishes compliance 

but whether the record contains evidence [the agency] failed to comply with the 

requirements of its . . . regulatory program. In the absence of contrary evidence, we 

presume regular performance of official duty. (Evid.Code, § 664.)’ ” (Gilroy Citizens 

for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 918-919.) Every 

court “presumes a public agency’s decision to certify the [environmental impact report] is 

correct, thereby imposing on a party challenging it the burden of establishing otherwise.” 

(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530.)

Legal error, in the form of failure to comply with CEQA, is reviewed 

independently, but all factual determinations are reviewed according to the substantial 

evidence standard. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of 

Rancho Cordova (2007) 40 Cal.4th 412, 426-427, 435.) “The substantial evidence 

standard is applied to conclusions, findings and determinations. It also applies to 

challenges to the scope of an [environmental impact report’s] analysis of a topic, the 

methodology used for studying an impact and the reliability or accuracy of the data upon 

which the [environmental impact report] relied because these types of challenges involve 

factual questions.” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 

124 Cal.App.4th 1184, 1198.)

A substantial evidence challenge is subject to an important proviso: “As with all 

substantial evidence challenges, an appellant challenging an [environmental impact 

report] for insufficient evidence must lay out the evidence favorable to the other side and 

show why it is lacking. Failure to do so is fatal. A reviewing court will not 

independently review the record to make up for appellant’s failure to carry his burden.” 

(Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.)
16

Cumulative Impact of the Reclamation Plan Amendment

Bay Area asserts that the environmental impact report for the reclamation plan 

amendment was inadequate, because it failed to address the cumulative impact of the new 

South Quarry pit that had previously been proposed to replace the reclaimed pit. 

Specifically, Bay Area argues that the reclamation plan amendment implicitly relies on 

the establishment of a new pit in the South Quarry to replace the reclaimed North Quarry 

pit, and the new pit was not included in the reclamation plan or considered in the 

environmental impact report.

Bay Area cites the primary objectives of the reclamation plan amendment, which

were to “maintain a local, reliable, and economic source of cement-grade limestone and 

to continue operations of the existing quarry.” (Emphasis omitted.) Bay Area asserts that 

the only way to achieve the stated objective was to open a new quarry pit to replace the 

one being reclaimed.

Bay Area notes that the 2010 comprehensive plan amendment that immediately 

preceded the approved 2011 reclamation plan amendment included an application for a 

use permit for a new South Quarry pit. Bay Area theorizes that in order for Lehigh to 

achieve quick approval of the reclamation plan amendment so that it could continue to 

supply cement to California public agencies, it removed the application for a use permit

for South Quarry pit from the reclamation plan amendment. 

Bay Area argues that the new quarry pit was a reasonably foreseeable future 

project, and it should have been included in the environmental impact report in order to 

comply with CEQA. Bay Area makes this argument based in part on the concept that 

segmentation of proposed projects should be avoided. “Segmentation” refers to the 

division of a project into pieces, thereby avoiding review of the physical impact of the 

project as a whole. “A public agency may not divide a single project into smaller 

individual projects in order to avoid its responsibility to consider the environmental 
17

impacts of the project as a whole.” (Sierra Club v. West Side Irrigation Dist. (2005) 128 

Cal.App.4th 690, 698.) “CEQA mandates that environmental considerations do not 

become submerged by chopping a large project into many little ones, each with a 

potential impact on the environment, which cumulatively may have disastrous 

consequences.” (Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 

Cal.App.3d 577, 592.) “A project under CEQA is the whole of an action which has a 

potential for resulting in a physical change in the environment, directly or ultimately, and 

includes the activity which is being approved and which may be subject to several 

discretionary approvals by governmental agencies.” (Ibid.) 

The record contains no support for Bay Area’s assertion that the County

segmented the review of the reclamation plan amendment. The application for a use 

permit for the South Quarry was withdrawn before the final iteration of the reclamation 

plan amendment was subjected to the environmental impact report. The new pit (if it

were a subsequent project) would not change the scope of the nature of the reclamation of 

the North Quarry pit or the reclamation’s environmental effects. (See Laurel Heights 

Improvement Assoc. of San Francisco, Inc. v. The Regents of the University of California

(1988) 47 Cal.3d 376, 396.) The reclamation plan amendment in this case is a standalone project and does not require approval of a future project, such as the South Quarry 

pit for reclamation of the North Quarry to occur. 

City of Antioch v. City Council (1986) 187 Cal.App.3d 1325 (City of Antioch),

relied upon by Bay Area, is distinguishable. In that case, the project at issue was an 

infrastructure system on four parcels of undeveloped land, which was designed to serve 

subsequent development on the land. It was conceded that the sole and exclusive purpose 

of the infrastructure development at issue was “to provide a catalyst for further 

development in the immediate area.” (Id. at p. 1337.) The court addressed the question 

of whether a negative declaration was a sufficient environmental document for this
18

project. It found that an environmental impact report must be prepared since it was 

reasonably certain that development would follow, even though permits had not been 

applied for. The infrastructure by itself had no independent utility and served no purpose 

other than to facilitate development at that site. By issuing the permit for the first stage 

of the development, the agency had committed itself to the second phase. Therefore, the 

court concluded, “[c]onstruction of the roadway and utilities cannot be considered in 

isolation from the development it presages.” (Id. at p. 1336.) 

In contrast to City of Antioch, here the reclamation plan amendment is not a first 

phase in a larger development. It is the complete process by which the North Quarry will 

be reclaimed, and does not require approval of other future projects to be completed. 

In sum, the environmental impact report sufficiently reviewed the project 

proposed in the reclamation plan amendment, and did not omit to review a possible 

replacement quarry pit. 

Adequacy of the County’s CEQA Findings to Support Certification

Bay Area argues that the County’s findings supporting certification of the 

environmental impact report were insufficient, because they were not supported by 

substantial evidence. Specifically, Bay Area asserts that the findings are insufficient 

because they do not state that the impacts of the plan on the frog were significant and 

unavoidable, or that the impact could be adequately mitigated. In addition, Bay Area 

argues that the statement of overriding considerations was deficient because it did not 

address the significant impacts on the frog. 

Impact 4.4-4 is entitled “Project activities could result in adverse negative effects 

on special status aquatic organisms. (Less than significant impact).” (Emphasis in 

original.) The Impact states “[The frog] is the only special status aquatic species of 

concern in the Study Area. However, no [frogs] have been found during surveys in the 

Project Area. Upland migration habitat for [the frog] is not present in the Project Area, 
19

preventing significant movements of this species in the Project Area [record citation]. 

[¶] Consequently, it is considered unlikely for the species to occur in the Project Area and 

therefore no direct impacts to special status aquatic species would be expected to result

from Project activities.” 

With regard to the direct impacts on the frog from reclamation activities, the 

environmental impact report states that the impacts were less than significant. This 

conclusion is supported by substantial evidence in the record. Most notably, the evidence

of less than significant impact is demonstrated by the facts that support the finding that 

the plan complies with SMARA.5 Under CEQA, additional findings regarding mitigation 

of impact are required only when the findings show a significant impact. (Pub. 

Resources Code, § 21081; Cal. Code Regs., tit. 14, § 15091.) If the direct potential 

impacts are less than significant, no additional findings are required. Here, in Impact 4.4-

4, the environmental impact report concluded that the direct potential impacts of the 

reclamation plan on the frog were less than significant. As a result, contrary to Bay 

Area’s assertion, additional findings regarding Impact 4.4-4 were not required.

(Environmental Protection Information Center v. California Dept. of Forestry and Fire 

Protection (2008) 44 Cal.4th 459, 522; Mira Mar Mobile Community. v. City of

Oceanside (2004) 119 Cal.App.4th 477, 492-493.) 

To the extent Bay Area is referring to the indirect potential impacts to the frog 

from reclamation activities, Impact 4.4-5 of the environmental impact report discusses 

the risks to aquatic life, of which the frog is included, from excess selenium runoff in the 

downstream areas. The report states that the potential impact is significant and 

unavoidable. Consistent with the requirements of CEQA, Impact 4.4-5 also states the 

 

5

 Bay Area also asserts that the findings are insufficient because they rely in part 

on a conclusion that the reclamation plan amendment does not violate SMARA. As 

stated supra, the County properly found that the reclamation plan amendment satisfied 

the provisions of SMARA.
20

mitigation measures that would be applicable, including interim storm water control and 

sediment management, and an interim storm water monitoring plan in the eastern 

material storage area of the Quarry. These specific mitigation measures are described in 

detail in the environmental impact report. These statements of the indirect impacts to the 

frog are supported by substantial evidence in the record and comply with the CEQA 

requirements. 

Finally, Bay Area argues that the statement of overriding considerations was 

defective because it did not specifically direct significant impacts to the frog. However, 

as discussed above, the finding that there was a less than significant impact on the frog 

from the reclamation activities is supported by substantial evidence. As a result, CEQA 

does not require a statement of overriding considerations because the potential direct 

impacts to the frog were found to be less than significant. (Cal. Code Regs., tit. 14, 

§ 15093.) 

Augmentation of the Administrative Record

Bay Area argues that the trial court erred in granting Lehigh’s motion to augment 

the administrative record to include an e-mail exchange between Dr. Mark Jennings, a 

herpetologist who conducted studies and contributed reports about the frog during the 

environmental review process, and David Johnston of the California Department of Fish 

and Wildlife. The e-mail discussed inconsistencies in Jennings’s prior reports about his 

observation of the frog in Pond 13, which is within the boundaries of the reclamation plan 

amendment. 

In his 2006 and 2007 reports, Jennings stated that the frog inhabited Pond 13, a 

location farther upstream from where it had ever been previously found, and within the 

boundaries of the reclamation plan amendment. In subsequent reports, however, 

Jennings did not include any reference to the frog being located in Pond 13. 
21

Jennings sent an e-mail to Johnston in 2009, stating that he had erred in his 2007

report when he said that he had observed the frog in Pond 13. Jennings opined that the 

error was likely the result of a typographical mistake in the numbering of the map of the 

Quarry. Jennings further reiterated to Johnston that he had never observed the frog in 

Pond 13, and that this was consistent with what he had told Johnston in the field. 

The contents of the administrative record, are governed by Public Resources Code 

section 21167.6, subdivision (e), which states: “The record of proceedings shall include, 

but is not limited to, all of the following items . . . .” Subdivision (e) includes 11 

categories of material that must be included in the administrative record. (Madera 

Oversight Coal. , Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 63, disapproved 

on other grounds in Neighbors for Smart Rail v. Exposition Metro Line Const. Authority 

(2013) 58 Cal.4th 439.)

In the present case, the e-mail exchange falls within subdivision (e)(10) of the 

Public Resources Code section 21167.6, which states that an administrative record 

includes “any other written materials relevant to the respondent public agency’s 

compliance with this division or to its decision on the merits of the project, including the 

initial study, any drafts of any environmental document, or portions thereof, that have 

been released for public review, and copies of studies or other documents relied upon in

any environmental document prepared for the project and either made available to the 

public during the public review period or included in the respondent public agency’s files 

on the project, and all internal agency communications, including staff notes and 

memoranda related to the project or to compliance with this division.”

Here, the e-mail exchange was properly part of the administrative record. Jennings 

wrote the e-mail in 2009, and that e-mail was communicated to the firm that prepared the

biological resources assessment for the environmental review process. The draft 

environmental impact report relied on the biological resource assessment in stating its 
22

findings. Evidence of the presence or absence of the frog in the reclamation area that was 

relied upon by the firm completing the biological study for the environmental review 

process falls within the parameters of Public Resources Code section 21167.6, 

subdivision (e) for inclusion in the administrative record.

Conclusion on the CEQA Claims

We find that the County properly certified the environmental impact report and 

approved the reclamation plan amendment in compliance with CEQA. The County’s 

findings regarding the direct and indirect environmental impacts from the reclamation 

plan amendment were sufficient under CEQA. Finally, the administrative record 

properly included information about the location of the frog relevant to the reclamation 

area boundaries. 

DISPOSITION

The order denying Bay Area’s petition for writ of mandate is affirmed.
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______________________________________

RUSHING, P.J.

WE CONCUR:

 

____________________________________

PREMO, J.

____________________________________

ELIA, J.

Bay Area Clean Environment, Inc. v. Santa Clara County et al.

H040789
24

Trial Court: Santa Clara County Superior Court

Superior Court No.: 1-12-CV229236

Trial Judge: The Honorable Joseph Huber

Attorneys for Plaintiff and Appellant Stuart M. Flashman

Bay Area Clean Environment, Inc.:

Attorneys for Defendants and Respondents Office of the County Counsel

Santa Clara County et al.:

Orry P. Korb

Elizabeth G. Pianca

Harrison, Temblador, Hungerford & 

Johnson

Mark D. Harrison

Sean K. Hungerford

Attorneys for Amicus Curiae: Babak Naficy

Towns of Los Altos and Atherton and the 

Cities of Cupertino and Los Altos:

Bay Area Clean Environment, Inc. v. Santa Clara County, et al.

H040789