Filed 11/18/15
                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                      DIVISION FOUR


SAN FRANCISCO BAYKEEPER, INC.,
        Petitioner and Appellant,
v.
CALIFORNIA STATE LANDS                              A142449
COMMISSION,
                                                    (San Francisco City & County
        Defendant and Respondent;                   Super. Ct. No. CPF-12-512620)
HANSON MARINE OPERATIONS, INC.
et al.,
        Real Parties in Interest.


                                               I.
                                     INTRODUCTION
        In October 2014, the California State Lands Commission (SLC) approved the San
Francisco Bay and Delta Sand Mining Project (the project), which authorizes real parties
in interest Hanson Marine Operations, Inc., Morris Tug & Barge, Inc. and Suisun
Associates (collectively, Hanson) to continue dredge mining sand from sovereign lands
under the San Francisco Bay pursuant to 10-year mineral extraction leases. San
Francisco Baykeeper, Inc. (Baykeeper) filed a petition for writ of mandate challenging
the SLC’s decision to approve the project, which the trial court denied. In this court,
Baykeeper contends (1) the SLC failed to comply with the California Environmental
Quality Act (CEQA) (Pub. Resources Code,1 § 21000 et seq.), and (2) the mineral leases
authorized by the SLC’s approval of the project violate the common law public trust

        1
            Statutory references are to the Public Resources Code unless otherwise stated.


                                               1
doctrine. As we explain, the SLC’s environmental review of the mining project complied
with CEQA, but its failure to consider whether the sand mining leases are a proper use of
public trust property requires us to reverse the judgment, and to direct the trial court to
grant the writ of mandamus requiring the SLC to address this important issue.
                                             II.
                                STATEMENT OF FACTS
       A. The Project
       In 1998, the SLC granted Hanson’s predecessors-in-interest 10-year mineral
extraction leases authorizing the dredge mining of sand from delineated areas under the
Central San Francisco Bay, Suisun Bay and the western Sacramento-San Joaquin River
Delta. In 2006, Hanson applied for an extension of the leases for an additional 10 years.
The lease parcels are all sovereign lands, owned by the State of California subject to the
public trust, and managed by the SLC. Because the leases expired before the SLC
decided whether to extend them, it authorized Hanson to continue mining on a month-to-
month basis while it reviewed an application for five new 10-year mineral extraction
leases of essentially the same parcels of sovereign lands. Four of these leases, along with
another lease of a privately owned parcel in the Suisun Bay, comprise the project that has
become the subject of this litigation.
       The purpose of Hanson’s dredge mining operation is to obtain marine aggregate
sand for construction purposes within the greater San Francisco area. Bay sand is
composed of “alluvial sand and gravel resulting from erosion and sediment transport”
which, in contrast to other types of crushed stone aggregate, has rounded edges making it
desirable for construction because it is easier to use and causes less wear on equipment.
The mining method Hanson employs involves the use of a trailing arm hydraulic suction
dredge and barge. A tugboat positions the barge over the mining site, and the hydraulic
suction dredge creates a flurry of water and sand, which mobilizes the sand and then
pumps it into the barge. A typical mining event lasts approximately three to four hours.
       The project “objective” proposed by Hanson was “[t]o obtain renewal of all
necessary permits and approvals necessary to continue mining sand at an economically


                                              2
viable level in San Francisco Bay for the next 10 years.” Hanson sought authorization to
mine a maximum volume of sand in the amount of 2.04 million cubic yards per year
(cy/yr). This figure was lower than the total permitted annual mining volume during the
previous lease period which was capped at 2.240 million cy/yr. However, the average
annual volume of sand that was actually mined from the lease areas between 2002 and
2007 was only 1,426,650 cy/yr.
       B. Environmental Review
       The SLC determined this project may have a significant adverse impact on the
environment necessitating preparation of an environmental impact report (EIR). In July
2007, it published a “Notice of Preparation” (NOP) of the EIR. In a July 2010 Draft EIR
(the 2010 Draft EIR), SLC staff examined “the potential environmental effects of the
proposed new leases and continuing sand mining for an additional 10-year period.” The
public was invited to submit comments on the 2010 Draft EIR in writing and in person at
two public meetings that were held in August 2010. Thereafter, SLC staff determined
that changes to the project constituted significant new information which required
recirculating a full revised draft EIR in November 2011 (the 2011 Revised Draft EIR).
       The change most relevant to this appeal pertained to the EIR’s definition of the
“baseline” condition against which to measure the environmental impacts of the project.
The 2010 Draft EIR had defined that baseline as the volume of sand mined from the lease
parcels in 2007, the year the NOP for this EIR was published. However, in the 2011
Revised Draft EIR, SLC staff concluded that “a baseline that accounts for mining levels
over several years provides a more accurate measure of the current level of mining
activity against which to evaluate Project impacts.” Therefore, the baseline used in the
2011 Revised Draft EIR was the average annual volume of sand mined in the proposed
project area per year from 2002 to 2007.
       In September 2012, the SLC published a Final EIR for the project. In that
document, SLC staff provided responses to 12 sets of comments on the 2011 Revised
Draft EIR and additional “Master Responses” which addressed three topics that were the
subject of multiple comments: (1) the definition of the baseline used to evaluate the


                                            3
impacts of the project; (2) the potential adverse impact of the project on the erosion of the
San Francisco Offshore Bar and shoreline;2 and (3) the standards of significance used to
evaluate the impact of the project on mineral resources. Additional information
responsive to some of these comments was also incorporated into the Final EIR’s
analyses of pertinent issues. SLC staff concluded these revisions did not require
recirculation of the EIR.
       The Final EIR’s analyses of the environmental impacts of the project examined
“the differences between the proposed sand mining operations and the sand mining that
occurred, on average, under the original lease agreements in the five years before the
NOP was issued.” SLC staff concluded the project “would have the potential for several
significant impacts, including impacts on Biological Resources, Hazards and Hazardous
Materials, Air Quality, Cultural Resources, and Land Use and Recreation.” All but one
of these impacts could be reduced through mitigation to a less than significant level. The
one impact which was considered both a significant project impact and a significant
cumulative impact even after all appropriate mitigation measures were applied was that
the “[r]egular operation of sand mining activities will cause entrainment and mortality of
delta and longfin spelt.”
       The Final EIR also evaluated four project alternatives: (1) a “No Project
Alternative” under which the SLC would not issue the proposed mining leases and other
regulatory agencies would not renew permits necessary for Hanson to continue mining on
public lands or on the privately held parcel within the project area; (2) a “Long-term
Management Strategy Conformance Alternative,” which would require Hanson to
comply with temporal and special restrictions on dredging contained in the “Long-Term
Management Strategy for the Placement of Dredged Material in the San Francisco Bay
Region Management Plan 2001,” but would otherwise approve the project as proposed by
Hanson, including the proposed mining volumes; (3) a “Clamshell Dredge Mining

       2
          The San Francisco Offshore Bar (Bar) “is an area directly west of the Golden
Gate Bridge where sand and sediments flow through at high velocities from the narrow
gate into a wide and shallow horse-shoe shaped plateau where sediments are deposited.”


                                             4
Alternative,” which would require Hanson to employ an alternative to its suction dredge
mining method; and (4) a “Reduced Project Alternative” which would “reduce permitted
annual mining volumes in all of the lease areas to a level equivalent to the baseline
mining volumes (i.e., the 2002 to 2007 average mined at each Project parcel).”
       According to the Final EIR, the No Project Alternative would avoid most of the
significant impacts of the project, but would also “require the Bay Area construction
industry to acquire sand from other, likely more distant sources, with consequent
increases in air emissions, including greenhouse gases.” Therefore, this No Project
Alternative was “not considered environmentally superior to the other alternatives or to
the Project as proposed.” Instead, the Final EIR identified the Reduced Project
Alternative as the environmentally superior alternative because it would “reduce the
intensity of the Project’s significant impacts, and would likely render mitigation measures
easier to implement and achieve.” Furthermore, although this alternative could result “in
significant unavoidable air quality impacts associated with importing sand and obtaining
sand from quarries, the overall intensity of impacts would be less than the other
alternatives.”
       C. The SLC’s Decision
       On October 19, 2012, the SLC certified the Final EIR and approved a modified
version of the project, which was referred to as the “Reduced Project Alternative with
Increased Volume Option.” The SLC adopted the Reduced Project Alternative proposed
in the Final EIR, but added an “Option” which provided that the total volume of sand
Hanson would be allowed to mine could be increased to the proposed project levels if
Hanson complied with conditions demonstrating a reduction of the two most significant
adverse impacts of the project: (1) the entrainment and mortality of delta and longfin
smelt, and (2) the emission of criteria pollutants.
       The SLC formalized its decision in a “Statement of Findings and Statement of
Overriding Considerations.” The SLC made findings addressing each of the significant
environmental impacts identified in the final EIR. The SLC’s decision included a
“Statement of Overriding Considerations” because the final EIR identified significant


                                              5
impacts of the approved project that “cannot feasibly be mitigated to below a level of
significance.”3 In that Statement, the SLC balanced the unavoidable environmental
impacts against the benefits of the project, which included providing jobs, supplying high
quality sand to the Bay Area construction industry, and generating substantial royalties
for the state. The SLC found, among other things, that if the project was not approved,
regional demand for construction aggregate would require obtaining sand from other
sources including quarries in the region and imports from Canada, which was feasible but
would result in “greater environmental consequences, particularly air quality impacts.”
Ultimately, the SLC concluded that “the benefits anticipated by implementing the Project
outweigh and override the expected significant effects.”
       Like the Final EIR, the SLC’s Statement of Findings and Statement of Overriding
Considerations recognized that the project involves 10-year mineral extraction leases of
California sovereign lands. However, the SLC did not address its obligations under the
common law public trust doctrine or make any findings regarding the propriety of
authorizing private parties to mine sand from sovereign lands.
       D. The Mandate Proceeding
       In November 2012, Baykeeper filed a petition for writ of mandate to compel the
SLC to set aside its approval of the project for failing to comply with CEQA. Pursuant to
a March 2013 amendment, Baykeeper added a cause of action for violating the public
trust doctrine. Initially, the superior court sustained a demurrer to Baykeeper’s public
trust claim, concluding that this doctrine does not create a separate cause of action for
enforcing CEQA. Subsequently, however, this court granted Baykeeper’s petition for a
writ of mandate and directed the superior court to vacate its prior order and overrule the
demurrer to the public trust cause of action. As we explained in our order, the issue

       3
         “A statement of overriding considerations is required ‘ “[i]f approval of the
project will result in significant environmental effects which ‘are not at least substantially
mitigated . . . .’ ” ’ [Citations.] Such statement provides the agency’s reasons for
proceeding with the project despite its unavoidable environmental risks. [Citation.]”
(Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 569
(Citizens for East Shore Parks).)


                                              6
whether sand mining is a public trust use is distinct from CEQA. On April 28, 2014, the
trial court denied Baykeeper’s mandate petition, finding that the final EIR satisfied all the
pertinent requirements of CEQA, and that the mineral leases did not violate the public
trust doctrine.
                                            III.
                                  CEQA DISCUSSION
       A. Issues on Appeal
       Baykeeper contends that the SLC violated CEQA by approving the project
pursuant to a deficient EIR. “ ‘ “The EIR is the heart of CEQA” and the integrity of the
process is dependent on the adequacy of the EIR. [Citations.]’ [Citation.] ‘The purpose
of an [EIR] 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 ways in which the significant effects of such a project might be
minimized; and to indicate alternatives to such a project.’ (§ 21061.)” (Citizens for a
Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th
1036, 1045 (Treasure Island).)
       “An EIR should be prepared with a sufficient degree of analysis to provide
decisionmakers with information which enables them to make a decision which
intelligently takes account of environmental consequences. An evaluation of the
environmental effects of a proposed project need not be exhaustive, but the sufficiency of
an EIR is to be reviewed in the light of what is reasonably feasible. . . . The courts have
looked not for perfection but for adequacy, completeness, and a good faith effort at full
disclosure.” (Guidelines, § 15151.)4



       4
          All references to “Guidelines” are to the CEQA Guidelines promulgated by the
state’s Resources Agency pursuant to section 21083. (Cal. Code Regs., tit. 14, § 15000
et seq.) “ ‘In interpreting CEQA, we accord the Guidelines great weight except where
they are clearly unauthorized or erroneous.’ [Citation.]” (Communities for a Better
Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319,
fn. 4 (South Coast Air).)


                                              7
       “We review an agency’s determinations and decisions for abuse of discretion. An
agency abuses its discretion when it fails to proceed in a manner required by law, or
when its determination or decision is not supported by substantial evidence. [Citations.]
Judicial review of these two types of error differs significantly: While we determine
de novo whether the agency has employed the correct procedures, scrupulously enforcing
all legislatively mandated CEQA requirements, we accord greater deference to the
agency’s substantive factual conclusions. [Citation.] In CEQA cases, as in other
mandamus cases, we independently review the administrative record under the same
standard of review that governs the trial court. [Citation.]” (Treasure Island, supra, 227
Cal.App.4th at p. 1045.)
       With these standards in mind, we turn to Baykeeper’s specific complaints about
the Final EIR, which are: (1) the baseline for assessing projects is not supported by the
record; (2) SLC staff failed to analyze properly project impacts on soil erosion and to
elicit public comment on significant new information about this issue which was included
in the Final EIR; (3) SLC staff criteria to evaluate project impacts on mineral resources;
and (4) the SLC failed to notify and consult with interested agencies about the project.
       B. The Baseline
       Baykeeper contends that the SLC abused its discretion by using a baseline which
did not accurately reflect existing conditions at the mining sites.
              1. Background
       As noted in our factual summary, when the SLC started its environmental review
it used the volume of sand mined from the leased parcels during 2007, the year the NOP
was filed, as its baseline for measuring project impacts. However, it subsequently
determined that a five-year average of annual mining volumes was a better indicator of
existing mining conditions than the 2007 rate. The 2011 Revised Draft EIR, which was
circulated for agency and public comment, explained how and why the baseline was
changed. SLC staff found that the volume of sand mined from the leased areas during
2007 was not an accurate reflection of existing baseline conditions because (1) limiting
the baseline to any single calendar year would fail to account for the fact that the “annual


                                              8
quantity of sand mined fluctuates substantially due to changes in demand, economic
conditions, capacity, and other factors,” and (2) the volume of sand that was mined in
2007 was in the “low range when compared with previous years.”
       The Final EIR further explained the baseline change in responses to comments on
the 2011 Revised Draft EIR and in a Master Response about the baseline. SLC staff
acknowledged that the time of NOP publication normally constitutes the baseline
condition for the project, but also found that “[i]n some instances, as here, where the level
of an existing operation can vary substantially from year to year, a lead agency may opt
to consider an average level of operations over some period of years to characterize that
existing operation.” SLC staff also opined that using the average volume of sand mined
per year from 2002 to 2007 “recognizes that sand mining activity levels can fluctuate
substantially from year to year depending on market demand and other factors: the
average of several years best characterizes the overall level of mining activity at the time
the NOP was published.” Furthermore, staff explained that its baseline was conservative
because the intensity of sand mining operations during the 2002-2007 period was lower
than the average for the entire 10-year period covered by Hanson’s prior set of leases and
was also lower than permitted levels for that prior period.
              2. Analysis
       Baykeeper contends the Final EIR’s entire impacts analysis was deficient because
the baseline conditions were artificially inflated and not reflective of current mining
conditions in the project area.
       To consider properly any significant adverse effects a project is likely to have on
the physical environment, “an EIR must delineate environmental conditions prevailing
absent the project, defining a baseline against which predicted effects can be described
and quantified. [Citation.]” (Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority (2013) 57 Cal.4th 439, 447 (Neighbors for Smart Rail).) This
baseline “must ordinarily be the actually existing physical conditions rather than
hypothetical conditions that could have existed under applicable permits or regulations.
[Citation.]” (Id. at p. 448, italics omitted; see also South Coast Air, supra, 48 Cal.4th at


                                              9
pp. 320–323.) This general rule derives from Guidelines section 15125, subdivision (a),
which states: “An EIR must include a description of the physical environmental
conditions in the vicinity of the project, as they exist at the time the notice of preparation
is published, or if no notice of preparation is published, at the time environmental
analysis is commenced, from both a local and regional perspective. This environmental
setting will normally constitute the baseline physical conditions by which a lead agency
determines whether an impact is significant.”
       However, “ ‘the date for establishing a baseline cannot be a rigid one.
Environmental conditions may vary from year to year and in some cases it is necessary to
consider conditions over a range of time periods.’ [Citation.]” (South Coast Air, supra,
48 Cal.4th at pp. 327-328.) Thus, “despite the CEQA Guidelines’ reference to ‘the time
the notice of preparation is published, or if no notice of preparation is published, . . . the
time environmental analysis is commenced’ [citation], ‘[n]either CEQA nor the CEQA
Guidelines mandates a uniform, inflexible rule for determination of the existing
conditions baseline. Rather, an agency enjoys the discretion to decide, in the first
instance, exactly how the existing physical conditions without the project can most
realistically be measured, subject to review, as with all CEQA factual determinations, for
support by substantial evidence.’ [Citation.]” (Neighbors for Smart Rail, supra, 57
Cal.4th at p. 449.)
       In this case, the SLC determined that a five-year average of annual mining
volumes was a better indicator of existing mining conditions than the 2007 rate in light of
the financial crisis of 2007, and the general nature of the mining industry. Those findings
are supported by substantial evidence including data from the California Geological
Survey that “California’s residential construction slowdown during [2007] contributed to
a significant decrease in both production and value of construction aggregate (sand and
gravel and crushed stone).” Statistics regarding the permitted and actual sand mining
volumes from the lease areas during the previous lease period also support the SLC’s
conclusions about the fluid nature of mining activities in general. Thus, the SLC did not



                                              10
abuse its discretion by adopting a baseline that accounted for mining conditions during
the five-year period prior to the filing of the NOP.
       Arguing for a contrary conclusion, Baykeeper contends that the SLC’s baseline is
not supported by “meaningful analysis.” (Citing Save Our Peninsula Committee v.
Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 128 [EIR contained
inadequate baseline discussion because it invited agency to select among multiple water
production figures with no meaningful analysis or showing that figures were accurate];
County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955
[“An adequate EIR requires more than raw data; it requires also an analysis that will
provide decision makers with sufficient information to make intelligent decisions.”].)
However, we find that the parts of the Final EIR summarized above contain a meaningful
analysis of the information that the SLC considered when defining the baseline for this
project.
       Baykeeper insists the baseline analysis was inadequate because the Final EIR “did
not disclose, let alone analyze, more recent sand mining levels, which dropped
substantially after 2007, during the precise period between the publication of the Draft
EIR and the Revised Draft EIR.” In fact, the SLC did address this issue in the comments
section of the Final EIR where it explained that “inclusion of the unusually low mining
volumes in years after NOP publication during the economic downturn commonly
considered the most pronounced recession since the Great Depression would distort the
baseline by understating the overall levels of mining in years prior to the expiration of the
previous leases and commencement of EIR preparation.” Baykeeper’s disagreement with
the Final EIR’s analysis is insufficient to establish that the SLC abused its discretion.
       C. Erosion and Sedimentation
       Baykeeper contends that the Final EIR’s discussion of the environmental impacts
of the project on the erosion of coastal beaches is (1) inadequate because EIR preparers
did not actually analyze the cumulative impacts of commercial sand mining on erosion of
the coast and Bar, and (2) improper because it included significant new information that
was not circulated for public or agency comment.


                                             11
              1. Background
       The potential direct and cumulative impacts of the project on soil erosion were
considered in a section of the Final EIR, which analyzed impacts on hydrology,
geomorphology, and water quality. This analysis included a comprehensive discussion of
the relevant environmental setting, including the regional setting and climate, surface
water hydrology and drainage, estuarine circulation, sediment dynamics, bathymetry, and
morphology. Significantly, SLC staff “estimated that the net change in volume within
the Central Bay sand mining lease areas was a loss of approximately 11.6 million cubic
yards of sediment from 1997 to 2008,” and recognized that this volumetric loss “is
roughly equivalent to the reported volumes of sand mined from the Central Bay lease
areas over this same time period.”
       The Final EIR used a 2009 study by Coast Harbor Engineering (the CHE study) to
evaluate the project impacts on erosion or sedimentation. The CHE study included a
sand mining resource evaluation as well as an impact assessment of this specific project.
CHE performed a bathymetry analysis of data collected from the lease areas and
surrounding locations over the past 10 years. It also used numerical models to compare
existing conditions to two project-condition scenarios. These analyses showed, among
other things, that (1) reported mining volumes in the lease areas are approximately equal
to the measured erosion from 1997 to 2008, an indication that mining resources available
for the proposed additional 10 years of mining are limited to sand already in place;
(2) erosion attributable to mining is confined to the vicinity of the mined areas; (3) sand
mining is not likely to cause measurable sediment depletion outside the mining areas;
(4) the effects of mining on sediment transport are limited to the vicinity of the mining
activity; and (5) very little sediment is transported from the mining areas to the outer
coast location of the San Francisco Bar. Adopting these findings, the Final EIR
concluded that “an additional 10 years of mining, combined with the last 10 years of
mining and future maintenance dredging, is expected to further alter the morphology of
the seabed in these locations, with concomitant, though minor and less-than significant
effects on circulation, sediment transport, and water quality.”


                                             12
       In addition to finding a less than significant project impact, the final EIR
separately considered the potential “cumulative effects on sediment transport and coastal
morphology.” SLC staff recognized that some studies “suggest[]” that sand mining in the
Bay contributes to the observed erosion of the coastal beaches, the theory being that
sand-sized sediment from the San Francisco Bar is transported through wave energy and
distributed along coastal beaches and, therefore, any erosion of the Bar caused by sand
mining also substantially contributes to the erosion of coastal beaches. Despite these
suggestions, the Final EIR found that “a direct or empirical causal link between
commercial sand extraction from the Bay and erosion of the San Francisco Bar has not
been established,” noting that other plausible explanations for the erosion of the Bar
include increase in wave height and changes in the tidal prism of the Bay. Furthermore,
the Final EIR found that, although sand mining has caused a reduction in the average
annual net sediment within the Bay-Delta estuary, “it is not clear if and how the losses
due to mining translate to observed changes in other areas within or just outside of the
estuary, including the San Francisco Bar.”
       As noted in our factual summary, a Master Response in the Final EIR addressed
several comments the SLC received about the impacts of the project on sediment
transport and coastal morphology. To better respond to those comments, SLC staff
arranged for the “EIR preparers to undertake supplemental analysis, including new
modeling, to further investigate and quantify the potential for the Project to reduce the
volume of sediment transported through the Golden Gate to the Bar and Ocean Beach.”
       The new information SLC staff reviewed included two recent but not yet
published scientific articles authored by United States Geological Survey Coastal
Geologist Patrick Barnard and others (the 2012 Barnard articles), which drew
connections between sediment transport in the Bay, the shrinking Bar, and the erosion of
coastal beaches. The SLC was particularly concerned by a conclusion in one article that
corroborated an earlier finding by Barnard that sand waves patterns indicate that sediment
is transported from the central Bay in the direction of the Bar. The 2012 Barnard articles
did not quantify the rate at which sediment was being transported to the Bar or explore


                                             13
the effects of sand mining on that process. Nevertheless, out of an abundance of caution,
SLC staff arranged for a supplemental modeling study which was “intended to quantify
the potential contribution of the Project, and in particular continued sand mining in the
Central Bay lease areas, to the observed shrinking of the Bar, and therefore erosion
within certain areas of Ocean Beach.”
       CHE performed the supplemental modeling and sediment transport analysis and its
conclusions were incorporated into the Final EIR’s discussion of project impacts on
sediment transport and coastal morphology. According to the Final EIR, CHE’s
supplemental findings reinforced the conclusions in the 2011 Revised Draft EIR
regarding the less than significant project specific and cumulative impacts on coastal and
Bar erosion. In this regard, the Final EIR stated:
       “[S]upplemental analysis of the previous modeling effort and the results of new
modeling presented in this EIR confirm the findings and conclusions previously reached
for [the project impact] and for cumulative effects of the Project on sediment transport, as
reiterated below. The original CHE study presented in Appendix G of the EIR, and
supplemental analyses confirm the EIR conclusions regarding [the project] impact . . .
and the potential cumulative effects of the Project on sediment transport and coastal
morphology. The results of these analyses clarify and quantify the conclusion reached in
Appendix G of the EIR: if the Project is approved and sand mining continues at the
proposed volume for a 10-year period, there is likely to be a reduction of 5,000-7,000
cubic yards of sediment transported from Central Bay through the Golden Gate annually.
This range represents approximately 0.2-0.3 percent of the long-term rate of erosion of
the Bar, as calculated by Hanes and Barnard (2007). Consistent with the conclusions
presented in this EIR, the [SLC] considers this Project-associated reduction in sediment
transport, and any secondary effects on coastal morphology, to be a less-than-significant
impact, and a less-than-cumulatively considerable contribution to a cumulative impact.”




                                            14
              2. Adequacy of Cumulative Impacts Analysis
       Baykeeper contends the cumulative impact analysis was incomplete because it did
not include an actual assessment of the impact of this project in combination with other
relevant past, present and future sand projects.
       “ ‘The cumulative impact from several projects is the change in the environment
which results from the incremental impact of the project when added to other closely
related past, present, and reasonabl[y] foreseeable probable future projects. Cumulative
impacts can result from individually minor but collectively significant projects taking
place over a period of time.’ (CEQA Guidelines, § 15355, subd. (b).) ‘Cumulative
impact analysis “assesses cumulative damage as a whole greater than the sum of its
parts.” ’ [Citation.]” (Association of Irritated Residents v. County of Madera (2003) 107
Cal.App.4th 1383, 1403.)
       The Guidelines require that an EIR discuss “cumulative impacts of a project when
the project’s incremental effect is cumulatively considerable.” (Guidelines, § 15130,
subd. (a).) If, on the other hand, the cumulative impact is insignificant or if the project’s
incremental contribution to the impact is not cumulatively considerable, the Lead Agency
is not required to conduct a full cumulative impacts analysis, but the EIR must include a
brief explanation of the basis for the agency’s finding(s). (Ibid.; City of Long Beach v.
Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 909 (City of Long Beach).
       As discussed above, the Final EIR provided more than a brief explanation for its
conclusions regarding the project’s incremental contribution to the cumulative impact on
sediment transport and coastal erosion. Because SLC staff found that impact was less
than significant, a more comprehensive analysis of the cumulative impact of past,
present, and future sand mining projects on sediment transport and coastal erosion was
not required. (Guidelines, § 15130, subd. (a); City of Long Beach, supra, 176
Cal.App.4th at p. 909.)
       Baykeeper contends that the Final EIR’s conclusion regarding the incremental
effect of the project was erroneous because it was based on an improper “ratio” theory,
pursuant to which SLC staff found the project’s incremental impact was relatively


                                             15
insignificant by comparing it to the overall problem of coastal erosion. To support this
argument, Baykeeper relies on Kings County Farm Bureau v. City of Hanford (1990) 221
Cal.App.3d 692 (Kings County). The Kings County court found that an EIR prepared for
a project to develop a 26.4-megawatt coal-fired cogeneration plant in the City of Hanford
contained “insufficient information in several respects for the Hanford City Council to
have made an informed decision whether to approve the project.” (Id. at p. 707.)
       Among its many problems, the Kings County EIR contained insufficient
information about the cumulative impacts of the project on air quality within the valley-
wide area. (Kings County, supra, 221 Cal.App.3d at pp. 718-721.) Acknowledging that
cumulative ozone impacts of valley-wide energy development projects were potentially
significant, the EIR preparers nevertheless found that the project would not have a
significant cumulative impact because it would contribute less than one percent of area
emissions for all criteria pollutants in the valley. (Ibid.) The Kings County court found
that this “ ‘ratio’ theory” “improperly focused upon the individual project’s relative
effects and omitted facts relevant to an analysis of the collective effect this and other
sources will have upon air quality.” (Id. at p. 721.) As the court explained, this approach
“avoids analyzing the severity of the problem and allows the approval of projects which,
when taken in isolation, appear insignificant, but when viewed together, appear startling.”
(Ibid.) Beyond that, the court found that this ratio theory creates the false impression that
the greater the overall environmental problem, the less significant an individual project’s
contribution to the problem will be. (Ibid.)
       Kings County and its progeny illustrate that a project’s cumulative environmental
impact cannot be deemed insignificant solely because its individual contribution to an
existing environmental problem is relatively small. (Kings County, supra, 221
Cal.App.3d 692, 718-721; Los Angeles Unified School Dist. v. City of Los Angeles (1997)
58 Cal.App.4th 1019, 1024-1026; Communities for a Better Environment v. California
Resources Agency (2002) 103 Cal.App.4th 98, 118-121 (California Resources Agency),
overruled on another ground in Berkeley Hillside Preservation v. City of Berkeley (2015)
60 Cal.4th 1086, 1109, fn. 3.) In fact, “the greater the existing environmental problems


                                               16
are, the lower the threshold should be for treating a project’s contribution to cumulative
impacts as significant.” (California Resources Agency, supra, 103 Cal.App.4th at p. 120,
fn. omitted.) By the same token, however, these cases do not hold that any additional
effect a project may have “necessarily creates a significant cumulative impact; the ‘one
[additional] molecule rule’ is not the law.” (Ibid., fn. omitted, original italics.) Rather, to
conduct a proper assessment of cumulative impact an EIR must consider not just whether
that cumulative impact is significant but also whether the proposed project’s incremental
effects are cumulatively considerable. (Ibid.)
       Here, as discussed above, the Final EIR’s analysis of cumulative impacts of Bay
mining on the erosion of the San Francisco Bar and coastal beaches discussed efforts by
CHE to quantify the potential contribution of the project to the erosion of the San
Francisco Bar. If, as Baykeeper contends, that exercise produced an irrelevant ratio, it
was only one minor component of the EIR’s cumulative impacts analysis. Indeed, this
attempt to measure the project’s contribution to the erosion of the Bar was a supplemental
component of the Final EIR that was added to reinforce the impact conclusions
previously reached in the 2011 Revised Draft EIR. Thus, the Final EIR bears little
resemblance to the cursory analysis of the cumulative ozone impacts that was found
lacking in Kings County, supra, 221 Cal.App.3d 692. It did not employ a misleading
ratio to avoid addressing the complex issue of sediment erosion. Rather, as reflected in
our discussion above, it analyzed pertinent studies regarding sediment transport and
resulting erosion which substantially supported its conclusion that there was insufficient
proof that this type of mining activity has a significant impact on the erosion of the Bar
and coastal beaches.
              3. EIR Circulation Requirement
       Baykeeper contends that the SLC violated CEQA by failing to recirculate the Final
EIR because the 2012 Barnard articles and the CHE supplemental modeling and analysis
constituted significant new information about the causal link between sediment transport
and coastal erosion.



                                              17
       “The Guidelines describe the types of ‘significant new information’ requiring
recirculation of a draft EIR. (Guidelines, § 15088.5, subd. (a).) These include disclosure
of ‘[a] new significant environmental impact,’ ‘[a] substantial increase in the severity of
an environmental impact,’ and the addition of a ‘feasible project alternative or mitigation
measure considerably different from the others previously analyzed.’ (Guidelines,
§ 15088.5, subd. (a)(1)–(3).) The Guidelines state that ‘[n]ew information added to an
EIR is not “significant” unless the EIR is changed in a way that deprives the public of a
meaningful opportunity to comment upon a substantial adverse environmental effect of
the project or a feasible way to mitigate or avoid such an effect . . . .’ (Guidelines,
§ 15088.5, subd. (a).)” (Treasure Island, supra, 227 Cal.App.4th at p. 1063.)
       “[C]ourts must defer to an agency’s explicit or implicit decision not to recirculate
a draft EIR so long as it is supported by substantial evidence. [Citations.] Indeed, . . . an
agency’s determination not to recirculate is given ‘substantial deference’ and is presumed
‘to be correct.’ ” (Treasure Island, supra, 227 Cal.App.4th at pp. 1063-1064.) Thus, the
appellant bears the burden of proving substantial evidence does not support the agency’s
decision not to recirculate an EIR. (Western Placer Citizens for an Agricultural & Rural
Environment v. County of Placer (2006) 144 Cal.App.4th 890, 903.)
       In the present case, substantial evidence supports the SLC’s decision not to
recirculate the Final EIR. The 2012 Barnard articles and the supplemental CHE study
were relevant to the scientific controversy regarding the impact of sand mining on coastal
erosion. However, that controversy had been fully disclosed and considered in the 2011
Revised Draft EIR, and this new information did not alter any of the substantive
conclusions about the controversy itself or the significance of the impacts of this project
on coastal erosion. Both the 2011 Revised Draft EIR and the Final EIR stated that the
reduction of sediment from the Bay-Delta estuary is a possible and plausible cause of the
erosion of the San Francisco Bar, but posited that there is a missing causal link between
the erosion or removal of sediment in different parts of the estuary and the reduction of
the supply of sediment from the Bay-Delta estuary to the San Francisco Bar. Crucially,



                                              18
both versions of the report concluded that, in any event, the project would not have a
significant project specific or cumulative impact on sediment transport or coastal erosion.
       Baykeeper’s interpretation of the new studies is fundamentally different than the
interpretation adopted by the SLC. It views the 2012 Barnard articles as establishing an
undeniable connection between sand mining and coastal erosion and the supplemental
CHE modeling as disclosing for the first time that the project will have a measurable
quantifiable impact on sediment transport and coastal erosion. We will not endeavor to
resolve the parties’ lengthy argument about the proper interpretation of these studies and
their implications with respect to the controversy regarding the effect of sand mining on
coastal erosion. “Disagreement among experts does not make an EIR inadequate, but the
EIR should summarize the main points of disagreement among the experts.” (Guidelines,
§ 15151.) As discussed above, the 2011 Revised Draft EIR thoroughly addressed the
controversy about impacts of sand mining on sediment transport and coastal erosion. The
new studies discussed in the Final EIR did not significantly alter the main points of
disagreement. Therefore, the SLC’s decision not to recirculate is supported by
substantial evidence.
       D. Impacts on Mineral Resources
       Seeking de novo review, Baykeeper contends that the SLC misconstrued CEQA
provisions governing proper analysis of project impacts on mineral resources.
              1. Background
       The final EIR evaluated “the potential loss of availability of known mineral
resources, including sand and construction aggregate associated with the proposed
[project] over the next 10 years.” This analysis was limited to minerals within sediments
on or under the Bay floor, of which only two were identified: (1) sand and gravel
deposits valuable as construction aggregate or construction fill material; and (2) oyster
shells that have been commercially mined for their mineral content since 1924. To
measure the impacts of the project on these two mineral resources, the EIR used
threshold of significance criteria that are set forth in appendix G of the CEQA Guidelines
(Appendix G).


                                            19
       Appendix G is an “Environmental Checklist Form” that agencies use to evaluate
the potential environmental impacts of a project. (Guidelines, Appen. G; see, e.g.,
Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 896 & fn. 5
(Oakland Heritage Alliance).) To assess project impacts on “Mineral Resources,”
Appendix G asks whether the project would: “a) Result in the loss of availability of a
known mineral resource that would be of value to the region and the residents of the
state?” or “b) Result in the loss of availability of a locally-important mineral resource
recovery site delineated on a local general plan, specific plan or other land use plan?”
(Guidelines, Appen. G.)
       According to the Final EIR, these threshold criteria “reflect State and local policy
that recognizes the importance of mineral resources in meeting society’s needs and [are]
intended to ensure the disclosure of a proposed project’s potential to preclude mineral
extraction, for example by developing a land use over or adjacent to a deposit of mineral
resources that was incompatible with or that would preclude future mining activities.”
       Applying these criteria, SLC staff determined that oyster shell deposits are located
far from the lease areas in the shallow southern reaches of the Bay. Thus, the Final EIR
concluded that the proposed operations “would not interfere with mining of these known
oyster shell beds nor would they preclude the future development of mineral resources
other than sand, should such resources be identified within any of the lease areas in the
future.”
       With respect to sand—the object of the mining project—SLC staff acknowledged
that an additional 10 years of sand mining would reduce the amount of sand that would
be available for future mining in most of the lease areas. It also found that the mining of
a nonrenewable mineral resource will generally deplete that resource. However, staff
concluded that the purpose of a CEQA impact analysis was not to assess whether mining
would deplete the mined resource, but rather whether the project would interfere with
important mineral resource deposit areas that should be conserved for purposes of
extraction of the valued mineral and not be lost to an incompatible use. Because the



                                             20
project was compatible with this environmental goal, the SLC concluded it did not have a
significant adverse impact on known mineral resources.
       One of the Master Responses in the Final EIR addressed multiple comments the
SLC received about the project impacts on mineral resources. In that response, SLC staff
rejected the contention that Appendix G required it to assess whether the project will
deplete a sand resource, reiterating that mining “is inherently not a sustainable activity: it
extracts raw materials from the earth at a ratio greater than the natural processes that
created the raw material.” Furthermore, the SLC maintained that the “commonly used
interpretation of the [Appendix G] significance criteria for Mineral Resources impacts”
calls for an examination of “the potential for [the] proposed project to interfere with or
prevent mineral extraction.” For example, a housing development blocking access to a
known mineral deposit would have a significant impact on that resource. Here, by
contrast, the project does not propose to limit access to or limit the availability of a
known mineral resource.
              2. Analysis
       Baykeeper contends that the SLC committed a prejudicial abuse of discretion by
misconstruing the Appendix G thresholds for measuring impacts on mineral resources.
According to Baykeeper, the plain language of those standards mandated that the Final
EIR evaluate the impact resulting from the allegedly permanent depletion of sand
minerals. We disagree with this argument for at least three reasons.
       First, Baykeeper misconstrues the function of Appendix G by treating it as part of
the CEQA statute. “[T]he Guidelines make clear that the checklist form in appendix G is
‘only suggested, and public agencies are free to devise their own format for an initial
study.’ (Guidelines, § 15063, subd. (f).) Furthermore, ‘CEQA grants agencies discretion
to develop their own thresholds of significance (CEQA Guidelines, § 15064, subd. (d)).’
[Citation] ‘To require any deviation from [the standards of significance in appendix G]
to be documented and justified . . . is to elevate Appendix G from a suggested threshold
to the presumptive threshold. This flatly contradicts both CEQA’s description of
Appendix G as only suggested and CEQA’s mandate that agencies have the power to


                                              21
devise their own thresholds.’ [Citation.]” (Rominger v. County of Colusa (2014) 229
Cal.App.4th 690, 716.)
       Second, Baykeeper fails to provide authority supporting its interpretation of the
Appendix G thresholds pertaining to mineral resources. The Final EIR’s use of the
Appendix G standards to measure impacts on accessibility to a known mineral resource
that would be valuable to the region or locality is consistent with state policies regarding
the regulation of land uses that are incompatible with mineral extraction. (See, e.g.,
§ 2711, subd. (a) [“the extraction of minerals is essential to the continued economic well-
being of the state and to the needs of the society”]; § 2711, subd. (d) [“the production and
development of local mineral resources that help maintain a strong economy and that are
necessary to build the state’s infrastructure are vital to reducing transportation emissions
that result from the distribution of hundreds of millions of tons of construction aggregates
that are used annually in building and maintaining the state”]; § 2790 [authorizing the
State Geologist to designate geographic areas as areas of statewide or regional
significance in order to prevent premature development incompatible with the
“advantages that might be achieved from extraction of the minerals of the area”].)
       Finally, “ ‘ “[t]he substantial evidence standard is applied to conclusions, findings
and determinations. It also applies to challenges to the scope of an EIR’s analysis of a
topic, the methodology used for studying an impact and the reliability or accuracy of the
data upon which the EIR relied because these types of challenges involve factual
questions.” [Citation.]’ ” (Oakland Heritage Alliance, supra, 195 Cal.App.4th at
p. 898.) Here, the conclusion in the Final EIR that the mining activities authorized by the
project will not have a significant adverse impact on mineral resources is supported by
evidence that the project will not lead to the loss of the availability of a mineral resource,
but instead will provide the citizens of this state with access to that very resource.
       Baykeeper disputes this last point, arguing that the depletion of Bay sand
authorized by the project will necessarily have “significant, permanent effects” on the
availability of mineral resources because the project “will preclude the mining of this
resource by any other entity, at any other time.” But this theory is premised on


                                              22
Baykeeper’s interpretation of the Appendix G thresholds, which would measure the
depletion of a mineral resource, rather than the interpretation of these CEQA thresholds
that the SLC applied, which considered availability in terms of access. For the reasons
discussed above, Baykeeper has failed to establish that CEQA required the SLC to adopt
Baykeeper’s interpretation of Appendix G.
       E. Notice and Consultation
       Baykeeper contends that the SLC violated CEQA by failing to consult with the
Coastal Commission and the City of San Francisco before it certified the Final EIR.
               1. CEQA Requirements
       CEQA requires that the lead agency consult with all responsible agencies and
trustee agencies before determining whether an EIR is required for a project.
(§ 21080.3.) “ ‘Trustee agency’ means a state agency that has jurisdiction by law over
natural resources affected by a project, that are held in trust for the people of the State of
California.” (§ 21070.) Upon determining that a project requires preparation of an EIR,
the lead agency “shall” send notice of that determination (i.e., the NOP) “by certified
mail or an equivalent procedure to each responsible agency, the Office of Planning and
Research, and those public agencies having jurisdiction by law over natural resources
affected by the project that are held in trust for the people of the State of California.”
(§ 21080.4.)
       CEQA further requires that before completing the EIR, the lead agency “shall
consult with, and obtain comments from, each responsible agency, trustee agency, any
public agency that has jurisdiction by law with respect to the project, and any city or
county that borders on a city or county within which the project is located . . . .”
(§ 21104.)
               2. Analysis
       Baykeeper contends that the SLC failed to comply with notice and consultation
requirements applicable to trustee agencies because it did not consult with the California
Coastal Commission before deciding to prepare an EIR for the project (§ 21080.3),
provide the Coastal Commission with notice of the 2007 NOP (§ 21080.4), or consult


                                              23
with that agency at any time prior to certifying the Final EIR (§ 21104). Without
independent analysis, Baykeeper also contends the SLC violated section 21104 by failing
to consult with the City of San Francisco before it certified the Final EIR.
       The SLC first contends that the Coastal Commission was not a trustee agency for
this project because its jurisdiction is limited to the “coastal zone” (§ 30103), while this
project is located outside that zone in the middle of the Bay. However, the fact that the
project location is outside the coastal zone is beside the point because the pertinent
inquiry for identifying a trustee agency is whether the project will have an effect on
natural resources over which the state agency has jurisdiction. (§ 21070.) Here, the Final
EIR explicitly acknowledged that this sand mining project would have a tenuous although
ultimately insignificant effect on coastal erosion.
       Alternatively, the SLC contends that it substantially complied with CEQA’s notice
and consultation requirements because the record establishes that both the Coastal
Commission and the City received actual notice of the preparation of an EIR for this
project, had the opportunity to comment on the project, and ultimately declined to do so.
       To support this substantial compliance theory, the SLC invokes Guidelines
section 15207, which states: “If any public agency or person who is consulted with
regard to an EIR or negative declaration fails to comment within a reasonable time as
specified by the lead agency, it shall be assumed, absent a request for a specific extension
of time, that such agency or person has no comment to make.” In Citizens for East Shore
Parks, supra, 202 Cal.App.4th 549, the appellate court applied Guidelines section 15207
to find that CEQA’s consultation requirements were not violated in a case in which the
SLC provided responsible agencies with notice and a copy of a draft EIR, asked for
comments within 45 days, and neither agency responded. (Id. at pp. 567-568.) In this
case, however, Guidelines section 15207 does not support the SLC’s substantial
compliance argument.
       In contrast to Citizens for East Shore Parks, supra, 202 Cal.App.4th at page 567,
the record before us does not show that the SLC attempted to consult with either the City
or the Coastal Commission before it approved this project. The SLC cites to evidence


                                             24
that the City received actual notice of the 2007 NOP, but does not even contend the City
was provided with any version of the EIR. Furthermore, the record reflects that the State
Clearinghouse provided a copy of the 2010 Draft EIR to “selected state agencies for
review,” that the Coastal Commission was one of those agencies, and that “no state
agencies submitted comments” on the 2010 Draft EIR.5 However, the Coastal
Commission was not provided with the 2011 Revised Draft EIR, which contained
indisputably significant new information about coastal erosion, the very impact that
affected its jurisdiction.
       Courts have found that “ ‘ “[f]ull compliance with the letter of CEQA is essential
to the maintenance of its important public purpose.” [Citation.] ‘ “[W]e must be
satisfied that [administrative] agencies have fully complied with the procedural
requirements of CEQA, since only in this way can the important public purposes of
CEQA be protected from subversion.” [Citation.]’ ” (Schenck v. County of Sonoma
(2011) 198 Cal.App.4th 949, 959 (Schenck).) By the same token however, a violation of
CEQA notice and consultation requirements requires reversal only upon proof of
prejudice. (Id. at p. 959.) “The ‘error is prejudicial where failure to comply with the law
results in “a subversion of the purposes of CEQA by omitting information from the
environmental review process . . . .” ’ [Citation.]” (Ibid.; see also § 21005, subd. (a).)
       In its appellant’s opening brief, Baykeeper characterizes the failure to consult with
the City and Coastal Commission as a prejudicial abuse of discretion, but it does not
identify any information that was omitted from the environmental review process that
would have been provided by these other agencies. In its reply brief, Baykeeper contends
that the Coastal Commission would have provided crucial information about the impacts
of the project on coastal erosion if had it been given the opportunity to consult. Finding
no evidence to support this argument in the appellate record, Baykeeper requests that this
court take judicial notice of a January 2015 letter from members of the Coastal

       5
         Guidelines section 15087, subdivision (f) states: “Public agencies shall use the
State Clearinghouse to distribute draft EIRs to state agencies for review and should use
areawide clearinghouses to distribute the comments to regional and local agencies.”


                                             25
Commission staff to the executive director of the San Francisco Bay Conservation and
Development Commission (BCDC) regarding an application that Hanson filed with the
BCDC for 10-year mining permits it needs to move forward with the project (the January
2015 letter). The January 2015 letter recommends that permits for Hanson’s project be
limited and monitored in recognition of its effect on the eroding coastal system and the
limited sources of new sand. It also discusses the Final EIR for the project and disagrees
with some of the SLC’s conclusions regarding the effects of sand mining on coastal
erosion.
       Baykeeper contends the January 2015 letter is relevant to establish that violations
of CEQA’s notice and consultation requirements precluded “relevant information from
being presented” to the SLC (quoting § 21005, subd. (a)), and it requests that this court
take judicial notice of the letter as an official act of the executive branch. (See Evid.
Code, § 452.) Without resolving the parties’ dispute as to whether the January 2015
letter was an official act, we deny the request for judicial notice because Baykeeper fails
to substantiate its theory of relevancy. (Golden Gate Land Holdings LLC v. East Bay
Regional Park Dist. (2013) 215 Cal.App.4th 353, 366 [“Only relevant evidence is
admissible by judicial notice.”].)
       The primary problem with Baykeeper’s theory is that the January 2015 letter
expresses current opinions of Coastal Commission staff as opposed to opinions it held
prior to October 2012 when the SLC completed its five-year environmental review of this
project. Indeed, the only record evidence on this issue shows that the Coastal
Commission had the opportunity to comment on the 2010 Draft EIR in 2010 and elected
not to do so.
       Arguably, the additional information in the 2011 Revised Draft EIR about the
controversy regarding the effect of sand mining on coastal erosion might have stimulated
the Coastal Commission to comment on the project. However, even if we make this
assumption, the January 2015 letter is not relevant absent some proof that it contains
material information that should have been considered during the environmental review
process. (Schenck, supra, 198 Cal.App.4th at p. 960 [“The critical factor is that even


                                              26
without notice to the [agency] the information gathering and presentation mechanisms of
CEQA were not subverted or even compromised.”].)
       Here, the record demonstrates that the issue of coastal erosion was thoroughly
explored during the CEQA review process, not just by SLC staff, but by interested
citizens and agencies including the BCDC. Baykeeper does not identify any material
information in the January 2015 letter that was actually available at the time the SLC
conducted its CEQA review, and yet not considered by the SLC as part of its review.
       Thus, we conclude that the appellate record shows that the SLC violated CEQA
requirements designed to ensure that it consult with affected agencies including the
California Coastal Commission and the City of San Francisco. However, Baykeeper’s
failure to demonstrate that these violations resulted in the omission of pertinent
information from the environmental review process requires that we reject its contention
that there was a prejudicial violation of CEQA notice and consultation requirements in
this case.
                                            IV.
                            PUBLIC TRUST DISCUSSION
       A. Issue on Appeal
       As our factual summary reflects, there is no dispute that the project authorizes the
private use of land that is protected by the public trust. “When California became a state
in 1850 it succeeded to sovereign ownership of various tidelands and submerged lands
under the terms of the common law trust doctrine.” (Western Oil & Gas Assn. v. State
Lands Com. (1980) 105 Cal.App.3d 554, 562 (Western Oil & Gas).)
       The question on appeal is whether the SLC violated the public trust doctrine by
failing to consider whether the sand mining leases constitute a permissible use of public
trust property. Conceding that it did not conduct an inquiry or make findings under the
public trust doctrine, the SLC takes the position that, as the public trustee of submerged
lands under the Bay, it had plenary authority to approve the mining leases without
making any findings under the public trust doctrine.



                                             27
       B. Guiding Principles
       “The public trust doctrine, which is traceable to Roman law, rests on several
related concepts. First, that the public rights of commerce, navigation, fishery, and
recreation are so intrinsically important and vital to free citizens that their unfettered
availability to all is essential in a democratic society. [Citation.] ‘An allied principle
holds that certain interests are so particularly the gifts of nature’s bounty that they ought
to be reserved for the whole of the populace. . . . [¶] Finally, there is often a recognition,
albeit one that has been irregularly perceived in legal doctrine, that certain uses have a
peculiarly public nature that makes their adaptation to private use inappropriate.’. . .
[Citation.]” (Zack’s, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1175-1176,
fn. omitted (Zack’s).)
       The United States Supreme Court announced the public trust doctrine in Illinois
Central Railroad v. Illinois (1892) 146 U.S. 387 (Illinois Central), which is still the
primary authority elucidating its function and purpose. (National Audubon Society v.
Superior Court (1983) 33 Cal.3d 419, 437 (National Audubon).) Illinois Central
established that “the title which a State holds to land under navigable waters is . . . held in
trust for the people of the State, in order that they may enjoy the navigation of the waters
and carry on commerce over them, free from obstruction or interference by private
parties; that this trust devolving upon the State in the public interest is one which cannot
be relinquished by a transfer of the property; that a State can no more abdicate its trust
over such property, in which the whole people are interested, so as to leave it under the
control of private parties, than it can abdicate its police powers in the administration of
government and the preservation of the peace; and that the trust under which such lands
are held is governmental so that they cannot be alienated, except to be used for the
improvement of the public use in them.” (Long Sault Development Co. v. Call (1916)
242 U.S. 272, 278-279.)
       “While the public trust doctrine has evolved primarily around the rights of the
public with respect to tidelands and navigable waters, the doctrine is not so limited.”
(Center for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349,


                                              28
1360 (Center for Biological Diversity).) More than “ ‘a set of rules about tidelands,’ ” or
“ ‘a restraint on alienation by the government,’ ” this doctrine functions “ ‘largely as a
public property right of access to certain public trust natural resources for various public
purposes.’ [Citation.]” (Ibid.) Thus, the doctrine protects “expansive public use of trust
property.” (Ibid.)
       The range of public trust uses is broad, encompassing not just navigation,
commerce, and fishing, but also the public right to hunt, bathe or swim. (City of Berkeley
v. Superior Court (1980) 26 Cal.3d 515, 521 (City of Berkeley).) Furthermore, the
concept of a public use is flexible, accommodating changing public needs. (National
Audubon, supra, 33 Cal.3d at p. 434.) For example, an increasingly important public use
is the preservation of trust lands “in their natural state, so that they may serve as
ecological units for scientific study, as open space, and as environments which provide
food and habitat for birds and marine life, and which favorably affect the scenery and
climate of the area.’ [Citation.]” (Id. at pp. 434-435.)
       The public trust is also “more than an affirmation of state power to use public
property for public purposes. It is an affirmation of the duty of the state to protect the
people’s common heritage of streams, lakes, marshlands, and tidelands, surrendering that
right of protection only in rare cases when the abandonment of that right is consistent
with the purposes of the trust.” (National Audubon, supra, 33 Cal.3d at p. 441.) Thus,
the state or trustee has “an affirmative duty to take the public trust into account in the
planning and allocation of [trust] resources, and to protect public trust uses whenever
feasible.” (Id. at p. 446, fn. omitted.)
       “Where . . . the propriety of a governmental relocation of trust land from one
public use to another is placed in question, the seminal opinion in Illinois Central, supra,
146 U.S. 387, makes clear that courts should ‘look with considerable skepticism upon
any governmental conduct which is calculated either to reallocate that resource to more
restricted uses or to subject public uses to the self-interest of private parties.’ [Citation.]
Trust lands may be devoted to purposes unrelated to the trust if such purposes are
incidental to and accommodate trust uses but . . . there are limits on the legislative


                                               29
authority to free use of trust land for nontrust purposes.” (Zack’s, supra, 165 Cal.App.4th
at p. 1176, italics omitted.)
       There is no set “procedural matrix” for determining state compliance with the
public trust doctrine. (Citizens for East Shore Parks, supra, 202 Cal.App.4th at
pp. 576-577.) However, “[a]ny action which will adversely affect traditional public
rights in trust lands is a matter of general public interest and should therefore be made
only if there has been full consideration of the state’s public interest in the matter; such
actions should not be taken in some fragmentary and publicly invisible way. Only with
such a safeguard can there b[e] any assurance that the public interest will get adequate
public attention.’ [Citation.]” (Zack’s, supra, 165 Cal.App.4th at pp. 1188-1189.)
       C. Analysis
       Applying the principles summarized above, we conclude that the SLC’s authority
to approve private sand mining leases of public trust property carries with it an
“affirmative duty to take the public trust into account . . . and to protect public trust uses
whenever feasible.” (National Audubon, supra, 33 Cal.3d at p. 446, fn. omitted.) The
appellate record, jointly prepared by the parties, does not demonstrate that the SLC
fulfilled that duty in this case.
       The SLC acknowledges that it did not make any findings about this project under
the public doctrine, implicitly conceding that it did not consider whether Hanson’s
mining project is a proper use of trust property. Nevertheless, the SLC takes the position
that it did not violate the public trust doctrine for three reasons: First, sand mining is
indisputably a public trust use of sovereign land; second, even if the mining leases are not
a public trust use, the public trust doctrine does not apply to mineral extraction leases
which do not permanently alienate the trust res; and finally, CEQA review eliminates the
obligation to consider whether a project violates the public trust. We will separately
address the flaws in each of these theories.
               1. Private Sand Mining Is Not Per Se a Public Trust Use
       The SLC contends that it was not required to consider whether the project violates
the public trust doctrine because sand mining is categorically a public trust use and, in


                                               30
National Audubon, supra, 33 Cal.3d 419, our Supreme Court expressly confirmed that
the public trustee has sole discretion to prefer one public trust use over any other.
       In National Audubon, supra, 33 Cal.3d 419, plaintiffs argued that permits
authorizing the Department of Water and Power of the City of Los Angeles to divert
water from Mono Lake violated the public trust doctrine. The Attorney General defended
the permits as a valid public trust use of the lake property which met the water needs of
Los Angeles residents, and argued that the public trust doctrine did not prevent the state
“from choosing between trust uses.” (Id. at p. 440.) The National Audubon court
rejected this argument and remanded the case for administrative review under the public
trust doctrine. In reaching its decision, our Supreme Court affirmed the state’s authority
to chose between trust uses, but it rejected the Attorney General’s improper attempt to
“maximize state power under the trust” by adopting an overbroad concept of trust uses
that would encompass “all public uses, so that in practical effect the doctrine would
impose no restrictions on the state’s ability to allocate trust property.” (Ibid.) Although
the court did not articulate a single test for identifying a valid public trust use, it approved
authority holding that trust uses “relate to uses and activities in the vicinity” of the trust
property at issue. In doing so, it explicitly rejected the idea that the state is free to
alienate trust property solely because the grant would serve “some public purpose, such
as increasing tax revenues, or because the grantee might put the property to a commercial
use.” (Ibid.)
       In the present case, the SLC’s argument that it has unfettered discretion to prefer
sand mining as a preauthorized public trust use of the lease parcels rests on the same
overbroad concept of trust uses that was rejected in National Audubon—it takes the
position that extraction of a mineral resource for commercial purposes is a public use
because it serves a public need for construction grade sand. However, a use does not
qualify as a trust use simply because it might confer a public benefit. (National Audubon,
supra, 33 Cal.3d at p. 440; see also Zack’s, supra, 165 Cal.App.4th at p. 1176
[distinguishing the state’s trust obligations from its general obligation to act for the public
benefit].) The scope of this public right is expansive and flexible in order to


                                               31
accommodate changing needs. (National Audubon, supra, 33 Cal.3d at p. 434; City of
Berkeley, supra, 26 Cal.3d at p. 521 [doctrine encompasses broad range of “public
uses”].) But, by its very essence, a public trust use facilitates public access, public
enjoyment, or public use of trust land. (Ibid.; Center for Biological Diversity, supra, 166
Cal.App.4th at p. 1360 [doctrine confers a public property right of access to trust
resources].) The private activity of removing valuable soil sediment for commercial
profit from beneath the Bay does not necessarily comport with that definition.
       The SLC contends that courts have recognized that the production of mineral
resources for commercial purposes constitutes a public trust use of state land since 1928
when our Supreme Court decided Boone v. Kingsbury (1928) 206 Cal. 148 (Boone). The
issue in Boone was whether a statute violated the public trust doctrine by authorizing the
granting of permits to California residents to prospect for oil and gas on “tidal and
submerged lands and to lease the same on a royalty basis.” (Id. at p. 154.) The Boone
court held the Legislature had “fully considered all questions of fact and policy germane
to the subject, and found that oil-wells could be operated in the soil of the ocean without
substantially impairing any of the rights for which said lands are held in trust for the
benefit of the state.” (Id. at p. 193.) In reaching this decision, the court found, among
other things, that evidence in the record was sufficient to establish that the mining
activities authorized by the statute would not substantially interfere with navigation or
fishery. The court also found that the interception of oil, gas and mineral deposits that
could be reduced to useful purposes would be a value to commerce and that gasoline, in
particular, was “so closely allied with state and national welfare as to make its production
a matter of state and national concern” and a clear “ ‘public benefit.’ ” (Id. at p. 181.)
       The SLC interprets Boone as establishing a rule that mineral extraction is per se a
public trust use of sovereign lands. We disagree with this interpretation for two
independent reasons. First, the SLC relies exclusively on excerpts from Boone discussing
the commercial and public benefits of oil drilling. (See Boone, supra, 206 Cal. at p. 181.)
Even if that discussion could be construed as a formal holding that oil drilling is a public
use, Boone did not address the fundamentally different activity of sand mining under the


                                              32
San Francisco Bay. Indeed, as the Boone case illustrates, the Legislature views oil and
gas drilling differently from other types of mining activities. (See, e.g., § 6830.1
[legislative finding “that the people of the State of California have a direct and primary
interest in assuring the production of the optimum quantities of oil and gas from lands
owned by the state, and that a minimum of oil and gas be left wasted and unrecovered in
such lands”].)
       Second, and in any event, the Boone court did not actually characterize any private
mining activity as a public use of trust property, but instead affirmed a legislative
determination that the highly regulated private mining activities authorized by the
challenged statute did not interfere with the public trust. (Boone, supra, 206 Cal. at
p. 193.) Since no comparable findings were made in this case, the SLC’s heavy reliance
on Boone is misplaced.
       The SLC suggests that the Legislature has conclusively determined that sand
mining is a public use of trust property because it has made a “specific finding that the
extraction of minerals is ‘essential’ for the commercial well-being of California.” To
support this argument, the SLC cites section 2711, subdivision (a), which states in full:
“The Legislature hereby finds and declares that the extraction of minerals is essential to
the continued economic well-being of the state and to the needs of the society, and that
the reclamation of mined lands is necessary to prevent or minimize adverse effects on the
environment and to protect the public health and safety.” But, section 2711 is a provision
of the Surface Mining and Reclamation Act of 1975 (§§ 2710, et seq.), a law which does
not regulate mining activities on state lands subject to the public trust. To the extent
legislative findings under that 1975 Act are relevant here, the SLC overlooks the
legislative finding that “the state’s mineral resources are vital, finite, and important
natural resources and the responsible protection and development of these mineral
resources is vital to a sustainable California.” (§ 2711, subd. (f).)
       The SLC also fails to acknowledge that the Legislature has addressed the subject
of public lands in a separate division of the Public Resources Code. (§ 6001 et seq.) As
noted above, in this pertinent part of the code, the Legislature has distinguished oil and


                                              33
gas leases from other types of mineral extraction leases, and adopted a specific policy to
promote the state’s interest in oil and gas mining. (§ 6830.1.) Leases for the extraction
of minerals other than oil and gas from tide and submerged lands are governed by section
6900, which authorizes the SLC to grant such leases “when it appears to be in the public
interest” and when “it appears that the execution of such leases and the operations
thereunder will not interfere with the trusts upon which such lands are held or
substantially impair the public rights to navigation and fishing.” Therefore, although the
Legislature has conferred authority on the SLC to approve sand mining leases, it did not
find that sand mining is a public use or an automatically authorized use of trust land.
       The SLC also contends that public trust case law supports a broad definition of
“commerce,” which includes activities that have both a private and public benefit.
However the authority it cites only reinforces the distinction between a public trust use
and a private use which is deemed valid because it is does not interfere with the purposes
of the public trust doctrine. (See, e.g., Martin v. Smith (1960) 184 Cal.App.2d 571,
577-578.) The SLC’s authority to approve a private lease of sovereign land for a
commercial purpose which is consistent with the public trust is not in dispute. (Ibid.)
However, we are not convinced by the SLC’s much broader claim that it was “free” to
approve the leases of public trust land in this case without any consideration of the public
trust doctrine because sand mining is intrinsically a public trust use.
       Finally, the SLC makes the factual argument that Hanson’s mining operation fits
within the traditional trust uses of navigation and commerce because a tug and barge are
used to reach the mining site, to dredge the sand, and to transport it for commercial
purposes. The SLC maintains that a “more water-dependent and navigational use could
hardly be imagined.” But this factual argument highlights the flawed definition of a
public trust use which runs throughout the SLC’s arguments in this appeal. The trust
doctrine protects and promotes public uses including commerce and navigation. It cannot
justify the private use of public property on the basis that the private party engaged in a
water dependent activity for its own private commercial purpose. Rather such a private



                                             34
use is permissible only if it is consistent with the protections afforded by the public trust
doctrine.
       The SLC’s broad concept of a public trust use as encompassing any private
activities that benefit commerce is unsupported by case law and inconsistent with the
guiding principles we discuss above. Therefore, we reject its theory that commercial
sand mining of submerged lands under the San Francisco Bay automatically qualifies as a
public trust use.
              2. The Public Trust Doctrine Applies To Mining Leases
       The SLC argues in the alternative that “the National Audubon analysis does not
apply” to SLC decisions to authorize mining leases. To support this alternative
argument, the SLC offers the following theory: Because the National Audubon court
analyzed water diversion permits that had the effect of alienating permanently a public
trust resource, that court’s holding that the public trust doctrine imposes affirmative
duties on the state or its trustee applies only in cases which involve a permanent
alienation of a trust resource. Thus, the SLC contends, since mineral extraction is not a
permanent alienation of the trust res (citing Boone, supra, 206 Cal. at p. 182), a mining
lease does not trigger the affirmative trust duties discussed in National Audubon, supra,
33 Cal.4th at page 438.
       First, we are not persuaded by the SLC’s factual contention that Bay sand mining
does not deplete a trust resource. Boone, supra, 206 Cal. at page 182 is inapposite, as
that case involved oil drilling as opposed to sand mining. Furthermore, during its CEQA
review of this project, the SLC acknowledged that sand mining does deplete a trust
resource. As discussed in the first part of our opinion, the Final EIR’s assessment of
project impacts on mineral resources examined the potential for the project to interfere
with or prevent access to mineral extraction, but it did not evaluate whether the project
would deplete a mineral resource because SLC staff concluded that sand mining “is
inherently not a sustainable activity; it extracts raw materials from the earth at a rate
greater than the natural processes that created the raw material.” This conclusion was
supported by findings in the Final EIR that the additional 10 years of sand mining in the


                                              35
lease areas would reduce the amount of sand that would be available in the future and
that, for practical purposes, the mined sand was not a renewable resource. While these
findings supported the impacts analysis on mineral resources under CEQA, they appear
to undermine the SLC’s theory that it had no independent duties under the public trust
doctrine.
       Second, the SLC’s legal theory that mining leases are exempt from public trust
analysis is not sustainable under the legal authorities cited. Boone does not hold or even
suggest that mineral extraction activities on trust land are exempt from the requirements
of the public trust doctrine. Rather, as discussed above, the record in that case confirmed
that the Legislature fulfilled its affirmative duty to take the trust into account when it
enacted a statute which authorized limited private mining for oil on public trust land.
(Boone, supra, 206 Cal. at p. 193.) Indeed, the National Audubon court described Boone
as “[a]pplying the principles of Illinois Central” to uphold the statute in that case “on the
ground that the [oil] derricks would not substantially interfere with the trust.” (National
Audubon, supra, 33 Cal.4th at p. 439.) Thus, our conclusion that a private use of trust
property triggers affirmative obligations under the trust doctrine is consistent with both
National Audubon and Boone.
       Our conclusion is also consistent with the provisions of the Public Resources Code
which confer the SLC’s public trust jurisdiction. (§ 6001 et seq.) The SLC’s jurisdiction
over ungranted submerged lands derives from section 6301, which provides that the SLC
“may lease or otherwise dispose of [trusts] lands, as provided by law.” (§ 6301.) Thus,
the SLC is not exempt from the law, but must comply with the requirements of the
common law trust doctrine when administering trust lands. (See, e.g., Citizens for East
Shore Parks, supra, 202 Cal.App.4th at p. 571 [SLC, “acting on behalf of the state, can
lease tidelands and submerged lands for such uses consistent with the trust”].) The
SLC’s trust obligations are also reflected in statutory provisions regulating the leasing of
public lands. (See, e.g., § 6895 [“whenever the lands for which a lease is sought are tide
and submerged lands, the [SLC] may divide the lands into the size and number of parcels
as the [SLC] determines will not substantially impair the public rights to navigation and


                                              36
fishing or interfere with the trust upon which the lands are held”]; § 6900 [authorizing
mineral extraction leases from tide and submerged lands that are in the public interest
which “will not interfere with the trusts upon which such lands are held or substantially
impair the public rights to navigation and fishing”].)
       For all these reasons, we conclude that Hanson’s application for 10-year sand
mining leases on sovereign lands did trigger the SLC’s affirmative duty under National
Audubon, supra, 33 Cal.3d at page 446, “to take the public trust into account . . . and to
protect public trust uses whenever feasible.” (Fn. omitted.)
              3. The SLC Failed to Discharge Its Trust Obligations
       The SLC maintains it fulfilled its public trust duties by conducting a CEQA
review. To support this contention, it cites two cases: State Water Resources Control Bd.
Cases (2006) 136 Cal.App.4th 674, 776 (State Water); and Citizens for East Shore Parks,
supra, 202 Cal.App.4th 549.
       State Water, supra, 136 Cal.App.4th 674 resolved eight appeals and three cross-
appeals in seven coordinated cases arising out of a five-year proceeding before the State
Water Resources Control Board. That litigation concerned the implementation of a 1995
water quality control plan that was the culmination of a 40-year process to solve water
quality problems in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary. (Id.
at p. 687.) Among the countless interrelated issues addressed in the more than 150 pages
of judicial analysis was whether the Water Board violated the public trust doctrine
because the 1995 plan did not (1) resolve all conflicts between public trust values and
competing water values in favor of the trust, or (2) take every feasible measure to protect
the Chinook salmon. (Id. at p. 778.)
       The State Water court rejected this public trust challenge as untimely and
unfounded. (State Water, supra, 136 Cal.App.4th at p. 778.) In implementing the 1995
plan, the Board had considered all demands that were being made on the waters of the
Bay-Delta and fulfilled its duties to consider and protect not just fish and wildlife but “all
of the other beneficial uses to be made of water in the Bay-Delta.” (Ibid.) Thus the court
found, in dicta, that, to the extent the Water Board implemented the 1995 plan, it also


                                              37
complied with its public trust obligations. However, to the extent that the Water Board
failed to implement that plan, appellants were entitled to writ relief and the “public trust
doctrine entitle[d] them to nothing more.” (Id. at p. 779.)
       State Water is distinguishable from the present case, not just because Baykeeper’s
public trust challenge is timely, but more crucially because, in contrast to State Water, the
record of the SLC’s CEQA proceeding does not affirmatively demonstrate that it
complied with its public trust obligations. Thus, we do not disagree that State Water
supports the SLC’s proposition that “[c]ompliance with other environmental statutes can
serve to fulfill an agency’s trust obligations.” But, State Water does not stand for the
broader proposition that CEQA review of a project involving sovereign property
necessarily satisfies the SLC’s public trust obligations.
       In Citizens for East Shore Parks, supra, 202 Cal.App.4th 549, the SLC approved a
30-year lease authorizing Chevron to continue operating a marine terminal on public trust
land adjacent to the company’s oil refinery. After concluding that the lease renewal did
not violate CEQA, the court addressed appellants’ separate challenge under the public
trust doctrine. Appellants conceded that the maintenance and operation of the marine
terminal was “a permissible public trust use,” but argued that before the SLC could
approve the lease renewal, the public trust doctrine additionally required that it consider
other public trust uses of the property and that it impose mitigation measures to reduce to
the extent possible the impacts of the project on those other public trust uses. (Id. at
p. 569.)
       The Citizens for East Shore Parks court held that “where the Lands Commission
continued a permissible and long-standing trust use and conducted adequate review under
CEQA, there was no violation of the public trust doctrine.” (Citizens for East Shore
Parks, supra, 202 Cal.App.4th at pp. 569-570.) The court reasoned that the additional
procedural requirements that appellants proposed were not supported by public trust law.
(Id. at pp. 576-577.) To the contrary, the court found, “imposing such procedural
constraints would be inconsistent with the recognition that the state is free to choose
between public trust uses and that selecting one trust use ‘in preference to . . . [an]other


                                              38
cannot reasonably be said to be an abuse of . . . discretion. [Citation]” (Id. at
pp. 576-577.)
       The Citizens for East Shore Parks court also opined that requirements imposed by
regulatory schemes like CEQA can often satisfy the state’s obligations under the public
trust doctrine. (Citizens for East Shore Parks, supra, 202 Cal.App.4th at pp. 577-578.)
Reasoning that the trust doctrine and CEQA impose similar obligations, the court found
that the CEQA review process performed in that case “encompassed discussion of other
public trust uses” of the property. (Id. at p. 578.) Thus, the court held that when no
change is being made to a public trust use and there has been compliance with CEQA, the
public trust doctrine does not independently impose an additional impact requirement
mandating the consideration of additional project alternatives and mitigation measures in
connection with those public trust uses. (Ibid.)
       In the present case, the SLC characterizes Citizens for East Shore Parks, supra,
202 Cal.App.4th 549 as “unequivocal” authority that the state satisfies the public trust
doctrine by complying with CEQA. We disagree. First, and crucially, there was no
dispute in Citizens for East Shore Parks that the maintenance and operation of the marine
terminal was a public trust use. (Id. at p. 569.) Here, by contrast, the question whether
Hanson’s sand mining operation is a public trust use, or even a trust consistent use, is
hotly disputed. Second, the Citizens for East Shore Parks court rejected an interpretation
of the trust doctrine which necessarily would have imposed specific additional impact
requirements beyond CEQA that could only be satisfied by separate supplemental
analysis. (Id. at pp. 569-570.) Here, by contrast, we address the more basic question
whether the public trust doctrine imposes any obligation to demonstrate affirmatively that
the state has taken the public trust into account when making a decision about the
management and use of trust property, whether in the context of a CEQA review or
otherwise. Indeed, the record in Citizens For East Shore Parks contained affirmative
evidence that the CEQA review encompassed a consideration of the public trust doctrine.
(Id. at p. 578.) Here, by contrast, the record of the CEQA review process does not
address the SLC’s obligations under the public trust doctrine.


                                             39
       Disputing this last point, the SLC contends that it did fulfill its affirmative duty to
consider the public trust in a section of the Final EIR which discussed project impacts on
existing land and recreational uses in the area and whether the project was consistent with
applicable land use plans and policies. The record citations that the SLC has provided to
us consist of excerpts from the Final EIR finding that, without mitigation, the project will
conflict with policies in applicable land use plans which require that “sand mining
operations be conducted in an environmentally sound manner, that agencies protect
public trust resources, and that sand mining operations be carried out in a manner that
minimizes interference with critical wildlife activities.” The SLC concluded, however,
that mitigation measures for other impacts of the project “would also reduce conflicts
with applicable land use plans and policies to a less-than-significant level,” and therefore,
no additional mitigation would be required. These record citations do not demonstrate
the SLC fulfilled its public trust obligations during the environmental review process. To
the contrary, the brief acknowledgment of the obligation of other agencies to protect
public trust resources reinforces our conclusion that the SLC did not implicitly consider
its own obligations under the public trust doctrine as part of its CEQA review of this
project.
       There may be some activities which unquestionably constitute public trust uses
and, by the same token, there may be activities which are so obviously consistent with the
public trust so as to require only a cursory consideration of the doctrine. However,
private commercial sand mining in the San Francisco Bay does not fall into either of
those categories. The length and breadth of appellate argument about the nature and
effects of this activity belies the claim each party makes that the law is decisively in its
favor. This debate could have been minimized if not avoided had the SLC addressed the
public trust doctrine before approving the project. In any event, on this record we cannot
find that the SLC fulfilled its obligation to conduct a public trust analysis in the CEQA
process. Therefore, a remand for that purpose is required.




                                              40
                                             V.
                                      DISPOSITION
       The order denying the petition for writ of mandate is affirmed to the extent it finds
that the Final EIR complies with CEQA. That part of the trial court’s order finding that
the SLC complied with the public trust doctrine is hereby reversed, and the trial court is
directed to grant the writ of mandate to that extent consistent with this opinion.




                                                  _________________________
                                                  RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




                                             41
Trial Court:                             San Francisco Superior Court

Trial Judge:                             Hon. Teri L. Jackson

Counsel for Appellant:                   San Francisco Baykeeper, Inc., George Torgun,
                                         Sejal Choksi-Chugh, Erica Maharg

                                         Environmental Law Foundation,
                                         James R. Wheaton

Counsel for Amicus Curiae Law            David R. Owen, Professor of Law and
Professors on Behalf of Appellant:       Associate Dean for Research,
                                         University Maine School of Law
Amicus Curiae Law Professors:

Eric Biber, Professor of Law,
University of California , Berkeley
School of Law

Alejandro E. Camacho, Professor of
Law, Director, Center for Land,
Environment, and Natural Resources,
University of California, Irvine

Joseph F.C. DiMento, Professor of Law,
University of California, Irvine

Holly Doremus, James H. House and
Hiram H. Hurd Professor of Environmental
Regulation; Co-Director, Center for Law,
Energy & the Environment; Director,
Environmental Law Program, University of
California, Berkeley School of Law

Tim Duane, Visiting Professor of Law,
University of San Diego School of Law,
Professor of Environmental Studies, University
of California, Santa Cruz

Daniel A. Farber, Sho Sato Professor of Law;
Co-Director, Center for Law, Energy & the
Environment, University of California,


                                           42
Berkeley School of Law
Brian Gray, Professor of Law,
University of California, Hastings
College of Law

Sean B. Hecht, Co-Executive Director,
Emmett Institute on Climate Change and the
Environment, Evan Frankel Professor of Policy
and Practice, UCLA School of Law

Albert C. Lin, Professor of Law, University of
California, Davis School of Law

David R. Owen, Professor of Law and
Associate Dean for Research, University of
Maine School of Law (through June 2015),
Professor of Law, University of California,
Hastings College of Law (beg. July 2015)

Shelley Ross Saxer, Vice Dean and Laure
Sudreau-Rippe Endowed Professor of Law,
Pepperdine Law School

Deborah A. Sivas, Luke W. Cole Professor of
Environmental Law and Director, Environmental
Law Clinic, Stanford Law School

David Takacs, Associate Professor of Law,
University of California, Hastings School
of Law

Jonathan Zasloff, Professor of Law,
UCLA School of Law




                                              43
Counsel for Respondent:                Kamala D. Harris
                                       Attorney General of California

                                       John A. Saurenman
                                       Senior Assistant Attorney General

                                       Christiana Tiedemann
                                       Supervising Deputy Attorney General

                                       Joseph C. Rusconi
                                       Deputy Attorney General

Counsel for Amicus Curiae              Morrison & Foerster, William M. Sloan
Bay Planning Commission
on Behalf of Respondent:

Counsel for Real Parties in            Downey Brand, Christian L. Marsh,
Interest:                              Arielle O. Harris




A142449, San Francisco Baykeeper, Inc. v. Calif. State Lands Comm.



                                         44
