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

Opinion

DAWSON, J.

This is the second appeal involving a petition for writ of mandamus challenging the County of Madera’s (County) approval of the Tesoro Viejo mixed-use development project. (See Chawanakee Unified School Dist. v. County of Madera (2011) 196 Cal.App.4th 1016 [126 Cal.Rptr.3d 859] [matter remanded for issuance of writ directing County to analyze certain impacts related to traffic and construction].) Here, the trial court granted a petition for writ of mandamus on the ground that the discussion in the environmental impact report (EIR) concerning the project’s water supply was inadequate and, as a result, violated the California Environmental Quality Act (CEQA).

Plaintiffs appealed, contending the EIR’s discussion of historical resources of an archaeological nature, traffic impacts, and cumulative impacts also violated CEQA. Defendants cross-appealed, contending the discussion of water supply in the EIR was adequate and a writ of mandate should not have been issued. The substantive disputes between the parties involve various questions concerning the scope of the administrative record and the admission of extra-record evidence.

We reach the following conclusions. First, the trial court did not err in applying section 21167.6, subdivision (e) and determining which documents to include and exclude from the administrative record. Second, the mitigation measure that proposes to verify that certain archaeological sites are historical resources for purposes of CEQA constitutes an unlawful deferral of environmental analysis. Third, the EIR’s traffic analysis lacks clarity regarding the baseline used to determine the project’s potential impacts. Fourth, the discussion of cumulative impacts was legally inadequate because it failed to disclose and explain the basis for assuming a 30 percent buildout in the area by 2025. Fifth, the trial court correctly determined that the analysis of the project’s proposed water supply was inadequate for purposes of CEQA. Finally, the trial court did not err in apportioning costs.

The judgment will be affirmed in part and reversed in part.

FACTS

Plaintiffs in this proceeding are (1) Madera Oversight Coalition, Inc., a California nonprofit corporation that alleges its members are residents of Madera County committed to preventing further environmental damage, (2) Revive the San Joaquin, Inc., a California corporation that describes itself as a grassroots nonprofit organization, qualified under section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)), working to restore and sustain a healthy San Joaquin River, and (3) the Dumna Tribal Council, the governing body of the Dumna Tribe, a sovereign entity.

The defendant and real parties in interest in this matter are (1) County, (2) Tesoro Viejo, Inc., (3) Rio Mesa Holdings, LLC, and (4) Tesoro Viejo Master Mutual Water Company (collectively, defendants). Plaintiffs allege that Tesoro Viejo, Inc., and Rio Mesa Holdings, LLC, are the proponents of the development project and that they own, or hold a beneficial interest in, the land within the project.

The Tesoro Viejo project involves the development of 1,579 acres located in southeastern Madera County. The project site is between the San Joaquin River on the east and State Route 41 on the west and north of Coombs Ranch. It is within an area known as Rio Mesa and is subject to the Rio Mesa Area Plan, which County adopted in 1995.

The project proposes a mix of residential, commercial, and light industrial uses plus areas for open space, recreation, and other public uses. The project would contain up to 5,190 dwelling units and about three million square feet for commercial, retail, office, public institutional, and light industrial uses.

In February 2006, Tesoro Viejo, Inc., requested that County initiate the environmental review process for the proposed development.

County issued a notice of preparation of a draft EIR for the Tesoro Viejo project in November 2006 and set an environmental scoping meeting for December 14, 2006.

In February 2008, County published a notice stating that a draft EIR for the Tesoro Viejo project was available for public review and comment. Responses to comments received were included in the final EIR.

On September 23, 2008, County’s planning commission held a public hearing and passed a motion that recommended the board of supervisors certify the final EIR.

On December 8, 2008, County’s board of supervisors held a public meeting to consider approving the final EIR, the specific plan and related rezoning, an infrastructure master plan, a water supply assessment, and a development agreement, all of which concerned the Tesoro Viejo project. At that meeting, the board of supervisors unanimously certified the final EIR. It also approved an ordinance adopting the Tesoro Viejo specific plan and the related comprehensive rezoning of the property within the plan boundaries. The notice of determination for the project was filed the next day.

PROCEEDINGS

On January 7, 2009, plaintiffs filed a petition for writ of mandamus and complaint for declaratory and injunctive relief. They alleged three causes of action that are pertinent to this appeal and cross-appeal for (1) violations of CEQA, (2) violations of the Planning and Zoning Law (Gov. Code, § 65000 et seq.), and (3) violations of the Water Code. Two other causes of action are not pertinent here.

County lodged and certified the administrative record in mid-May 2009. Along with their briefing, plaintiffs thrice requested augmentation of the administrative record.

The hearing on substantive issues occurred on September 8, 2009. At the close of the hearing, the trial court stated its conclusion that the EIR, as an informational document, was inadequate because it did not discuss issues that caused uncertainty regarding the water supply for the project. The court stated it would order decertification of the EIR and would direct County to vacate any entitlements approved on the basis of the EIR.

The trial court filed its written decision, which included an order granting in part the motions to augment the administrative record, on October 26, 2009. The judgment granted in part and denied in part the petition for writ of mandamus. It included the following determination: “County as lead agency abused its discretion by failing to proceed as required by CEQA, in that the Project EIR failed to disclose, discuss or analyze uncertainties surrounding the proposed use of Holding Contract No. 7 as the Project’s source of water, and likewise failed to address alternative water sources which might supply water to the project if Holding Contract water were not available, as well as the environmental impacts of using such alternative sources.”

The judgment also stated that any claim for an award of costs or attorney fees would be determined by the trial court upon a separate posttrial motion.

On the same day that the trial court filed its judgment, it also filed a peremptory writ of mandate directing County and its board of supervisors (1) to set aside the certification of the EIR and all related entitlements, and (2) upon taking final action on the project, to file a return with the court setting forth what it had done to comply with the writ.

Plaintiffs filed a notice of appeal relating to the trial court’s judgment denying parts of the petition for writ of mandate. Defendants filed a cross-appeal relating to that portion of the judgment that (1) granted plaintiffs’ motion to augment the record as to six documents and (2) granted plaintiffs’ petition for writ of mandamus as to the issue of water supply.

In February 2010, the trial court awarded attorney fees to plaintiffs in the amount of approximately $277,000. The award of attorney fees is the subject of a separate appeal (Madera Oversight Coalition, Inc. v. County of Madera (Sept. 14, 2011, F059857) [nonpub. opn.]).

DISCUSSION

I. Scope of the Administrative Record

The parties have raised a number of questions regarding the scope of the record in this case. These questions involve both rulings made by the trial court and motions to augment the record filed in this court.

We publish this part of the opinion because some of the positions taken by the parties demonstrate confusion concerning how to preserve and present evidentiary issues in a CEQA appeal. We provide guidance to practitioners in subsequent cases so that they will proceed more efficiently in the expenditure of their own time and that of the courts.

A. Rules Concerning the Scope of the Administrative Record

Our discussion of the rules of law concerning administrative records begins with clarifying the relationship between the administrative record and other types of evidence. Specifically, there are two distinct ways to place evidence before the superior court in a CEQA matter: The evidence can be (1) included in the administrative record pursuant to the provisions of subdivision (e) of section 21167.6 or (2) admitted as extra-record evidence. (See Western States, supra, 9 Cal.4th 559 [admission of extra-record evidence in a CEQA proceeding involving traditional mandamus].) Extra-record evidence, of course, is “evidence outside the administrative record.” (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1269 [4 Cal.Rptr.3d 536].)

The distinction between materials properly included in the administrative record and materials presented as extra-record evidence is described here because the papers submitted by the parties have not always treated the two categories of evidence as distinct concepts that involve different tests for admissibility. As a general proposition, the proper method of analysis for determining whether a particular item should be considered as evidence in a CEQA matter is to determine first whether the item is part of the administrative record pursuant to subdivision (e) of section 21167.6. If the item does not qualify for inclusion in the administrative record, then its admissibility can be determined under the rules applicable to extra-record evidence. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366-367 [54 Cal.Rptr.3d 485].)

In this part of this opinion, we are concerned primarily with the first inquiry regarding the proper scope of the administrative record.

1. Provisions governing the creation of the administrative record

The three initial steps involving the administrative record in a CEQA case—preparing, certifying and lodging—are addressed in section 21167.6, subdivision (b). That provision states that the administrative record may be prepared by the public agency, the plaintiff, or an alternate method agreed upon by the parties. Regardless of which method is chosen, the administrative record is “subject to certification of its accuracy by the public agency . . . .” (§ 21167.6, subd. (b)(2).) When the public agency prepares the administrative record, the agency is required to lodge a copy of it with the court upon certification. (Id., subd. (b)(1).)

These three steps were followed in this case—County prepared, certified and lodged the administrative record with the trial court.

2. Trial court’s authority regarding disputes over the record

After an administrative record is certified and lodged, disputes over its contents at times arise. For example, here plaintiffs contend the agency omitted documents that should have been included. (See pt. I.B.2., post) Neither CEQA nor the Guidelines specify the procedures parties should follow in presenting these disputes. It is clear, nonetheless, that the Legislature anticipated that such disputes would arise. The CEQA provision that establishes the briefing schedule permits the trial court to extend the schedule for “good cause,” which includes the “determination of the completeness” of the administrative record. (§ 21167.4, subd. (c); see also Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1525 [22 Cal.Rptr.3d 101].)

Though the statute does not identify who makes the “determination of the completeness” of the administrative record, we interpret the statutory phrase to include the action taken by the trial court to resolve disputes between the parties over what should be included in, or excluded from, the administrative record. This interpretation necessarily implies that trial courts have the authority to resolve those disputes. (See Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 335-336 [29 Cal.Rptr.3d 788] [trial court construed plaintiff’s request for judicial notice as motion to supplement administrative record under local rule and granted motion as to two documents].)

3. Rules of law that specify the contents of the administrative record

The contents of the administrative record are governed by subdivision (e) of section 21167.6, which begins: “The record of proceedings shall include, but is not limited to, all of the following items . . . .” Subdivision (e) then enumerates 11 categories of material that must be included in the administrative record. We have not set forth the text of those 11 categories because most are not relevant to the disputes raised in this appeal.

The quoted statutory language is relevant to establishing the legal context for this appeal. First, the language is mandatory—all items described in any of the enumerated categories shall be included in the administrative record. (§ 15 [“ ‘Shall’ is mandatory . . . .”].) Second, the statutory phrase “include, but is not limited to” indicates the extensive list provided in the statute is not exclusive. “It has been observed that this section ‘contemplates that the administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.’ (County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8 [6 Cal.Rptr.3d 286], italics omitted . . . .)” (Eureka Citizens for Responsible Government v. City of Eureka, supra, 147 Cal.App.4th at pp. 366-367.)

4. Reviewability of trial court’s determinations

Once a trial court has determined to include or exclude a document from the administrative record pursuant to subdivision (e) of section 21167.6, the question becomes how the appellate court should treat that determination. One possibility is for the appellate court simply to ignore the trial court’s determination and independently decide whether the administrative record should include or exclude that document. This is the position taken by plaintiffs and, though less clearly, by defendants in this case. Another approach—the one that we will adopt—is for the appellate court to review the trial court’s determination as it would review procedural or evidentiary determinations in other civil cases.

a. Trial court determinations are reviewable

In deciding whether this court should make an independent decision regarding the scope of the administrative record or review the trial court’s determination, we consider the nature of the determinations made by (1) the agency in preparing and certifying the administrative record and (2) the trial court in applying section 21167.6, subdivision (e) to the disputes before it.

When an agency prepares and certifies the administrative record, it exercises no discretion and employs no specialized expertise; it performs a ministerial task when it applies the mandatory language in section 21167.6, subdivision (e). (See County of Orange v. Superior Court, supra, 113 Cal.App.4th at p. 11 [compilation of administrative record is ministerial task].) Ordinarily, when an agency performs a ministerial task, deferential judicial review is not appropriate. (See Western States, supra, 9 Cal.4th at p. 576 [ministerial actions by an agency do not merit deference].) As a result, when a trial court applies section 21167.6, subdivision (e) and determines the contents of the administrative record, it does so in its role as a trier of fact, not a court of review, and it resolves the factual and legal disputes between the parties without deference to the agency’s certification. (See Western States, supra, at p. 576 [independent judicial scrutiny appropriate when actions are ministerial].)

Based on the respective roles of the agency and the trial court in applying section 21167.6, subdivision (e), we conclude that it is the trial court’s determinations regarding the scope of the administrative record that are reviewable by the appellate court. Appellate courts do not review the agency’s decision about what to include in the administrative record.

The foregoing discussion breaks new ground only by being explicit in its reasoning and conclusions. The ultimate conclusion that an appellate court reviews the trial court’s determinations regarding the scope of the administrative record is not new. Such a review has occurred in other published decisions. (E.g., Eureka Citizens for Responsible Government v. City of Eureka, supra, 147 Cal.App.4th 357 [appellate court found no error in trial court’s denial of motion to augment administrative record]; Mejia v. City of Los Angeles, supra, 130 Cal.App.4th 322 [trial court granted motion to supplement administrative record as to two documents, but should have granted motion as to other documents as well]; County of Orange v. Superior Court, supra, 113 Cal.App.4th 1 [peremptory writ directed trial court to include certain documents in administrative record].) The approach adopted by the parties is contrary to the foregoing cases. Furthermore, they have cited no case in which an appellate court determined that it would review the agency’s certification of the administrative record rather than the trial court’s determinations regarding the scope of the administrative record.

b. Standard of review applicable to trial court’s decision

We review a trial court’s determination to include or exclude a document from the administrative record pursuant to the mandatory language of subdivision (e) of section 21167.6 by applying the following ordinary principles of appellate practice.

The trial court’s findings of fact are reviewed under the substantial evidence standard. (See, e.g., People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [86 Cal.Rptr.2d 816, 980 P.2d 371] [appellate court must accept trial court’s findings of fact supported by substantial evidence].) The trial court’s conclusions of law are subject to independent review on appeal. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801 [35 Cal.Rptr.2d 418, 883 P.2d 960] [questions of law are subject to independent review].)

In addition to the foregoing standards of review, appellate review of a trial court’s determinations regarding the scope of the administrative record is subject to the principle that appellate courts presume the trial court’s order is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].) This presumption produces the corollaries that (1) an appellant must affirmatively demonstrate an error occurred and (2) when the appellate record is silent on a matter, the reviewing court must indulge all intendments and presumptions that support the order or judgment. {Ibid.) The intendments and presumptions indulged by the appellate court include inferring the trial court made implied findings of fact that are consistent with its order, provided such implied findings are supported by substantial evidence. (See Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 745 [106 Cal.Rptr.3d 318] [implied finding inferred by appellate court only if supported by substantial evidence].)

B. Proceedings in the Trial Court Regarding the Administrative Record

1. Lodging of the administrative record

The trial court here first addressed the administrative record when it established a schedule for the litigation in its May 21, 2009, order after case management conference. The order directed County to lodge and certify the administrative record no later than June 8, 2009. It also stated that disputes regarding the contents of the record that could not be resolved informally were to be raised with the court no later than the date the parties’ respective briefs were due. The certified administrative record was lodged with the court on May 20, 2009.

2. Disputes presented to the trial court

In early July 2009, when plaintiffs filed their brief on the merits, they also filed a notice of motion to augment the administrative record and for judicial notice concerning 15 documents. The following documents were among the 15 presented:

(1) the June 29, 2006, decision in Madera County Farm Bureau v. Madera County Board of Supervisors (Super. Ct. Stanislaus County, No. 350927) (Farm Bureau decision),

(2) a letter dated April 13, 2007, from Michael P. Jackson, United States Bureau of Reclamation, to Attorney Warren P. Felger (Jackson letter),

(3) permits Nos. 11885, 11886 and 11887 from the State Water Resources Control Board (SWRCB),

(4) State Water Rights Board decision No. D935 dated June 2, 1959,

(5) pages. 118 and 119 of a transcript of the June 9, 2009, hearing of County’s board of supervisors,

(6) the “Baloian Study,”

(7) a comment letter dated March 28, 2008, from Mary Clark Baloian of Applied Earthworks, Inc., to Matthew Treber, a planner with County’s resource management agency, regarding the discussion in section 4.5 of the draft EDR. of archaeological sites (Baloian comment letter), and

(8) a letter dated December 2, 2008, from Michael Navarro, California’s Department of Transportation (CalTrans), to Jerald James, Madera County Planning Director (CalTrans letter).

The motion asserted that the materials were relevant to show County failed to proceed in the manner required by law and to prove County’s misconduct. Plaintiffs argued the materials (1) should have been included in the administrative record pursuant to section 21167.6, (2) were subject to judicial notice, or (3) both.

Subsequently, plaintiffs filed two supplements to their motion to augment the record. The first was filed five days after the original motion. It concerned a comment letter from plaintiffs’ attorney to the board of supervisors of County, which letter had been submitted at the board’s December 8, 2008, hearing. The second supplement was filed on September 1, 2009, and concerned an additional 12 documents, many of which were dated after the prior supplement had been filed. The documents included a 61-page development agreement between County and Tesoro Viejo, Inc., dated June 9, 2009, concerning the Tesoro Viejo project (Development Agreement), and correspondence and materials from July and August related to the agreement.

Defendants filed an opposition to plaintiffs’ motion to augment the administrative record and for judicial notice. Their opposition stated they did not oppose the inclusion in the administrative record of (1) the two pages of transcript from the board of supervisors’ June 9, 2009, hearing, (2) the Baloian Study, which had been filed with the court under seal, and (3) the CalTrans letter dated December 2, 2008. Defendants asserted the other documents were irrelevant and inadmissible extra-record evidence that should be excluded pursuant to Western States, supra, 9 Cal.4th 559.

Defendants also opposed plaintiffs’ second supplement to the motion to augment the administrative record. They argued the second supplement was untimely, violated the court’s scheduling order, and sought to introduce irrelevant and inadmissible evidence. Among other things, defendants argued that plaintiffs’ opening brief had not challenged the Development Agreement and, therefore, the agreement and related documents were irrelevant to the claims set forth in plaintiffs’ writ petition.

3. The trial court’s rulings

The trial court’s written decision, filed on October 26, 2009, included an order granting in part plaintiffs’ motions to augment the administrative record. The court granted their motion to augment with respect to the three items that defendants did not oppose—namely, the two pages of transcript from the board of supervisors’ June 9, 2009, hearing, the Baloian Study, and the CalTrans letter dated December 2, 2008. The court also granted their motion as to the Farm Bureau decision, the Jackson letter, and the December 8, 2008, comment letter from plaintiffs’ attorney. The court denied the remainder of plaintiffs’ requests, including the request concerning the Baloian comment letter.

C. Matters Raised on Appeal Concerning the Record

1. June 30, 2010, motion to augment

On June 30, 2010, plaintiffs filed a motion in this court to augment the record with nine documents. Each of the documents, except notes from the September 14, 2006, Tesoro Viejo project kickoff meeting, were in the clerk’s transcript on appeal and thus already a part of the appellate record. On July 8, 2010, this court filed an order denying the motion to augment without prejudice and stating that eight of the documents were in the clerk’s transcript.

2. November 8, 2010, motion to augment

On November 8, 2010, plaintiffs filed another motion here to augment the record. This motion concerned seven documents—the first seven documents referenced in the plaintiffs’ motion to augment the administrative record filed in the trial court in July 2009. As with their June motion to augment filed in this court, plaintiffs cited to the pages of the clerk’s transcript where the seven documents were located.

Three of the seven documents that are the subject of plaintiffs’ November 8, 2010, motion to augment were made part of the administrative record as a result of the trial court’s October 26, 2009, order. (See pt. I.B.3., ante.) Those three documents are the Farm Bureau decision, the Jackson letter, and two pages of transcript from the June 9, 2009, meeting of the board of supervisors.

The other four documents included in plaintiffs’ November 8, 2010, motion to augment are SWRCB permits Nos. 11885, 11886 and 11887, and State Water Rights Board decision No. D935 dated June 2, 1959, which the trial court decided not to include in the administrative record.

On December 6, 2010, this court ordered that the appellate record be augmented with the seven documents referenced in plaintiffs’ November 8, 2010, motion. The order also stated that this court was not determining whether the materials were relevant or would be considered in this appeal. Our order augmenting the appellate record should not be construed as an order augmenting the administrative record or as a ruling on the propriety of the trial court’s action in admitting and denying admittance to the seven documents with which the November 8, 2010, motion to augment is concerned.

3. December 27, 2010, motion to augment

4. Defendants’ March 8, 2011, request for judicial notice

On March 8, 2011, defendants filed a request for judicial notice concerning (1) a February 24, 2010, letter from the SWRCB to defendants, (2) an SWRCB order dated October 1, 2009, regarding permits Nos. 11885, 11886 and 11887, and (3) excerpts from State Water Rights Board decision No. D935 dated June 2, 1959. Defendants assert that these documents are relevant to their argument that this court should refrain from considering any extra-record evidence at all in ruling on their cross-appeal. Defendants state that the documents “are submitted only to demonstrate the kind of extra-record evidence that the Court would have to entertain if the Court agreed to consider [plaintiffs’] similar extra-record evidence.”

5. Issues regarding the record raised in plaintiffs’ opening brief

In addition to the foregoing motions filed with this court, the parties also raise issues in their appellate briefs regarding the administrative record. In their opening brief, plaintiffs contend that County’s removal of the Baloian comment letter from the public record violated Government Code section 6200 and the provisions that define the scope of the administrative record.

Defendants assert that the Baloian comment letter was properly excluded from the administrative record because Applied Earthworks, Inc., voluntarily withdrew it a few days after Baloian submitted it. Defendants also assert no prejudice occurred from its exclusion because County addressed the concerns raised in the letter elsewhere in its responses to public comments.

6. Evidentiary issues raised in defendants’ opening brief

By way of their cross-appeal, defendants challenge the trial court’s decision that the EIR’s discussion of water supply was inadequate. As part of that challenge, defendants contend that the trial court erred in relying on extra-record evidence to find that the EIR was inadequate.

Specifically, defendants reference the trial court’s ruling augmenting the administrative record with the Farm Bureau decision, the Jackson letter, and the two pages of transcript from the June 9, 2009, hearing of the board of supervisors. They assert that none of these items was part of the record before County at the time of certification of the EIR and that “[t]he trial court improperly relied on such evidence . . . .” Furthermore, they contend, “Such evidence is also not admissible before this Court and, of course, the trial court’s decision is not binding on this Court. [Citation.]”

D. Analysis of Issues Raised in This Court

1. November 8, 2010, motion to augment

The November 8, 2010, motion to augment that plaintiffs filed in this court concerns seven documents. (See pt. I.C.2., ante.) The trial court had already ruled on those documents by granting the motion as to three of them and denying it as to the other four. (See pt. I.B.3., ante.)

We conclude that this motion is not the proper way to present this court with the issues concerning the inclusion of the seven documents in the administrative record.

First, the motion is superfluous as to the three documents that the trial court ordered to be included in the administrative record. Plaintiffs are entitled to rely on those rulings and need not present the documents anew to this court in a motion to augment.

Second, as to the permits from the SWRCB—Nos. 11885, 11886 and 11887—and State Water Rights Board decision No. D935 dated June 2, 1959, which the trial court refused to include in the administrative record, plaintiffs should have challenged the trial court’s refusal as part of their appeal rather than filing with this court a motion to augment. The trial court’s determinations regarding the scope of the administrative record are reviewable on appeal (pt. I.A.4.a., ante). When a party seeks review of a trial court’s determinations regarding the scope of the administrative record, that party bears the burden of demonstrating that the trial court committed error. (See Eureka Citizens for Responsible Government v. City of Eureka, supra, 147 Cal.App.4th at pp. 366-367 [appellants failed to establish proffered documents fell within categories where inclusion in administrative record was mandated by § 21167.6, subd. (e); trial court’s determinations upheld]; see generally Denham v. Superior Court, supra, 2 Cal.3d at p. 564 [appellant must affirmatively demonstrate error occurred because appellate court indulges all intendments and presumptions that support order].)

For the sake of argument, we will construe plaintiffs’ November 8, 2010, motion to augment as a direct challenge to the trial court’s decision to deny the request to include the three permits and the 1959 order in the administrative record. Plaintiffs’ challenge must be rejected because they have failed to establish the trial court erred in excluding the documents. Specifically, plaintiffs’ theory for inclusion of the documents was and continues to be based on (1) the factual assertion that the documents were not discovered until after their petition was filed and (2) a declaration from one Preston Van Camp, who describes how he obtained the documents but omits any explanation of the timing of his actions and why his request was not made earlier. We, as the reviewing court, must infer that the trial court was not convinced that plaintiffs acted with reasonable diligence in obtaining the documents. (See Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1621 [45 Cal.Rptr.2d 688], citing Western States, supra, 9 Cal.4th at p. 578 [reasonable diligence requirement].) Because it is within the province of the trial court, sitting as the trier of fact, to decide factual questions such as reasonable diligence and the persuasiveness of the evidence presented, we will not second-guess the implied findings made by the trial court. Consequently, plaintiffs have failed to establish their theory of error regarding the trial court’s exclusion of the SWRCB permits and State Water Rights Board decision No. D935 dated June 2, 1959, from the administrative record.

Based on the foregoing, we deny the November 8, 2010, motion to augment the record to the extent that it requests this court to include the seven referenced documents in the administrative record. Our denial of the motion filed in this court in no way affects the rulings made by the trial court concerning the same documents.

2. Pages from June 9, 2009, transcript

Defendants contend the trial court erroneously considered pages 118 and 119 of the certified transcript of the June 9, 2009, hearing of the board of supervisors. In the trial court, defendants’ written opposition to plaintiffs’ motion to augment the administrative record stated that defendants did not oppose the motion with respect to the transcript pages. We conclude that defendants have forfeited their claim that the trial court erred in considering the transcript because of their position taken below. (See 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 376, p. 438 [waiver]; id., § 377, p. 439 [invited error].)

Therefore, the two pages of transcript are properly regarded as part of the administrative record in this appeal.

3. Farm Bureau decision

Defendants contend the trial court erroneously considered the Farm Bureau decision. The motion to augment the administrative record that plaintiffs filed in the trial court stated that the Farm Bureau decision was being offered to prove County knew “Holding Contract No. 7” did not create a water right from the San Joaquin River and that County should have (1) consulted with the United States Bureau of Reclamation and the SWRCB or (2) required the project proponent to provide further information about its water rights. Plaintiffs cited subdivision (e)(7) and (10) of section 21167.6 as the grounds for including the decision in the administrative record.

Defendants countered plaintiffs’ arguments by asserting the Farm Bureau decision “is irrelevant because it was not before the Board when the Board considered the Specific Plan. As such, it is extra-record evidence that cannot now be added to the Record. See [Western States, supra,] 9 Cal.4th at [pages] 573-574, 576.”

We will presume that, in granting the request to add the Farm Bureau decision to the administrative record, the trial court found that the decision was “written material[] relevant to the . . . public agency’s compliance with [CEQA] . . . .” (§ 21167.6, subd. (e)(10); see Denham v. Superior Court, supra, 2 Cal.3d at p. 564 [appellate court indulges all intendments and presumptions that support order].)

In their appellate brief, as they did below, defendants treat the Farm Bureau decision as extra-record evidence. This approach is wrong because it fails to give the required deference to the trial court’s factual determination that the Farm Bureau decision is “written material^ relevant to the . . . public agency’s compliance with [CEQA]” and thus is part of the administrative record. (See Carrancho v. California Air Resources Board, supra, 111 Cal.App.4th at p. 1269 [defining “extra-record evidence” as evidence outside administrative record].) Thus, defendants have pointed out no potential errors of fact or law made by the court in reaching the determination that the Farm Bureau decision was part of the administrative record pursuant to subdivision (e)(10) of section 21167.6. They have not affirmatively demonstrated that the trial court erred. (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564 [party challenging ruling must affirmatively demonstrate error occurred].) Therefore, we will treat the Farm Bureau decision as part of the administrative record in this case.

4. Jackson letter dated April 13, 2007

Defendants also contend that the trial court improperly relied on the Jackson letter. Like the Farm Bureau decision, they approach the Jackson letter as though it were extra-record evidence. Again, this approach is inappropriate because the trial court ordered that document to be included in the administrative record.

Plaintiffs argued before the trial court that the Jackson letter was being “offered to prove the County failed to consult with the Bureau about the use of river water for Tesoro Viejo’s water supply” and thereby violated the requirement in section 21153 to consult with other agencies. This argument relates to the requirement that the administrative record shall contain “written material^ relevant to the . . . public agency’s compliance with [CEQA] . . . .” (§ 21167.6, subd. (e)(10).) We will presume that the trial court determined the Jackson letter should be made part of the administrative record pursuant to that provision.

Because defendants have failed to carry their burden of demonstrating affirmatively that the trial court erred by including the Jackson letter in the administrative record pursuant to subdivision (e)(10) of section 21167.6, we will uphold the trial court’s order regarding the Jackson letter and will regard the letter as part of the administrative record in this case.

5. Baloian comment letter

a. Background

Item 10 in plaintiffs’ July 8, 2009, motion to augment the administrative record was the Baloian comment letter dated March 28, 2008. A copy of the letter was attached to a June 15, 2009, declaration of plaintiffs’ attorney and another copy was attached to the motion to augment. The letter uses Applied Earthworks, Inc.’s stationery and is signed by Mary Clark Baloian as “Senior Archaeologist!,] Applied Earthworks, Inc.” The first paragraph of the letter states Baloian reviewed section 4.5 of the draft EIR to assess (1) whether it accurately depicts the findings reported in the Baloian Study and (2) “whether it proposes feasible mitigation measures for potential impacts to historical resources.” The remainder of the letter sets forth Baloian’s concerns.

Matthew Treber, a planner with County’s resource management agency, signed a declaration dated June 18, 2009, that stated (1) he was responsible for compiling the administrative record and (2) the Baloian comment letter “is not in the County’s files and was not considered because Applied Earthworks withdrew the letter within a few days of its receipt and requested that it be destroyed.”

b. Arguments and analysis

Plaintiffs contend that the failure of County to include the Baloian comment letter in the final EIR and to address the substantive concerns raised in the letter violate the information disclosure provisions of CEQA and, therefore, constitute an abuse of discretion. Plaintiffs also contend that the removal of the letter from the files violated Government Code section 6200, which provides that every public officer having custody of any paper filed or deposited in any public office shall not willfully remove or destroy the whole or any part of such paper.

Defendants argue, without citation to authority, that the letter was properly excluded from the administrative record because a “potential commenter can waive the right to comment, is not obligated to comment and can withdraw a comment.” They also assert no prejudice occurred because the letter raised no issues not raised in the EIR, especially the comments made by the Dumna Tribal Council and County’s responses to those comments.

The fundamental issue underlying the dispute over the Baloian comment letter is whether that letter was required to be part of the administrative record. Subdivision (e)(6) of section 21167.6 states that the administrative record shall include “[a]ll written comments received in response to, or in connection with, environmental documents prepared for the project. . . .”

For purposes of this appeal, we will assume that the Baloian comment letter should have been included in the administrative record and will analyze only the question of prejudice.

We conclude that the exclusion of the Baloian comment letter from the administrative record does not constitute reversible error because its exclusion resulted in no prejudice to plaintiffs. (See pt. 13I.B. & C., post [County’s treatment of archaeological resources and mitigation violated CEQA].) Stated otherwise, the outcome of this appeal would have been the same as the outcome reached had the Baloian comment letter never been written or had the letter been included in the administrative record.

6., 7.

II. Standard, of Review

The acts of County’s board of supervisors in (1) certifying the final EIR and (2) approving an ordinance that adopted the Tesoro Viejo specific plan and related rezoning constituted legislative and quasi-legislative decisions. In Yost v. Thomas (1984) 36 Cal.3d 561 [205 Cal.Rptr. 801, 685 P.2d 1152], the California Supreme Court stated that it had “no doubt” that “the adoption of a specific plan is to be characterized as a legislative act.” (Id. at p. 570.) It also stated that “the rezoning of land is a legislative act . . . .” (Ibid.)

A petition for traditional mandamus is appropriate when the challenged action is legislative or quasi-legislative. (Western States, supra, 9 Cal.4th at p. 567.) Alternatively, a petition for a writ of administrative mandamus is appropriate when an adjudicatory or quasi-judicial decision is challenged. (Id. at pp. 566-567.) In this case, plaintiffs’ petition for a writ of mandamus is properly classified as a petition for traditional mandamus (1) subject to the procedures set forth in Code of Civil Procedure section 1085 and (2) reviewed under the standards contained in Public Resources Code section 21168.5. (Wagner Farms, Inc. v. Modesto Irrigation Dist., supra, 145 Cal.App.4th at p. 772.) This conclusion is not controversial, as a vast majority of proceedings challenging agency action for violating CEQA are treated as traditional mandamus reviewed under section 21168.5. (Wagner Farms, Inc., supra, at p. 772; 2 Robie et al., Cal. Civil Practice: Environmental Litigation (2002) § 8:31 (rel. 4/2011).) Moreover, the parties agree that the prejudicial abuse of discretion standard contained in section 21168.5 applies to this case.

Pursuant to section 21168.5, an abuse of discretion is established “if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.”

“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] We therefore resolve the substantive CEQA issues . . . by independently determining whether the administrative record demonstrates any legal error by the [agency] and whether it contains substantial evidence to support the [agency’s] factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427 [53 Cal.Rptr.3d 821, 150 P.3d 709] (Vineyard).)

“Substantial evidence” is defined in the Guidelines as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Guidelines, § 15384, subd. (a).)

When the inquiry into legal error involves an EIR, the question can be phrased generally as “whether the EIR is sufficient as an information document.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391 [133 Cal.Rptr.2d 718].) When the specific claim of legal error concerns an omission of required information from the EIR, the plaintiff must demonstrate that (1) the EIR did not contain information required by law and (2) the omission precluded informed decisionmaking by the lead agency or informed participation by the public. (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 987 [99 Cal.Rptr.3d 572].) These two elements constitute an abuse of discretion and prejudice, respectively, and together form reversible error. (See § 21005, subd. (a); Association of Irritated Residents, supra, at p. 1391 [noncompliance with CEQA’s information disclosure requirements not per se reversible; prejudice must be shown].)

III. Archaeological Sites That Are Historical Resources

A. Contents of EIR

“Cultural Resources” are addressed in section 4.5 of the EIR. The discussion is based primarily on the Baloian Study. Subsection 4.5.1 of the EIR describes the project’s environmental setting from a cultural resources perspective. It includes headings and text concerning (1) prehistoric context, (2) ethnographic setting, (3) historic setting, (4) identification of historical resources in the project site, (5) Native American consultation, and (6) paleontological resources.

The EIR states that the archaeological work reflected in the Baloian Study resulted in the recordation of four prehistoric-period sites and three historic-period sites and that the sites were evaluated under the criteria of the California Register of Historical Resources (California Register). EIR section 4.5’s introduction summarizes its conclusions that the four prehistoric-period resources and one of the historic-period sites, the Madera Canal, are significant “historical resources” for purposes of CEQA.

A description of each of the seven sites is set forth under the subheading “Identification of Historical Resources in the Project Site” in section 4.5.1 of the EIR. The prehistoric site designated CA-MAD-295/827 is a large village site near the San Joaquin River that contains bedrock milling stations, flaked and ground stone artifacts, animal bone, freshwater mussel shell, and human bone. The prehistoric site designated CA-MAD-826 is a large bedrock milling location near the San Joaquin River that might be associated with the Dumna village, I-ah’-pin. The prehistoric site designated CA-MAD-2392 is a large site that includes adjacent knolls and the confluence of two seasonal drain-ages. It contains a sparse scatter of flaked and ground stone artifacts. The prehistoric site designated CA-MAD-2394 contains a number of milling stations, a chert quarry, a rock shelter with an intact midden, and a scatter of flaked and ground stone artifacts. It is the only chert quarry along the San Joaquin River that exhibits thermal spalling, a specific type of prehistoric stone reduction technique.

The EIR states that each of these sites is eligible for listing on the California Register; the Madera Canal, which is an element of the Central Valley Project, also is eligible; the other two sites evaluated, one of which contains an abandoned steel windmill and well, are not eligible for the California Register.

Subsection 4.5.3 of the EIR addresses project impacts and mitigation. The two paragraphs immediately preceding the discussion of impacts labeled as “Impact 4.5-1” through “Impact 4.5-9” state: “CEQA requires consideration of project impacts on either archaeological sites or historical sites deemed to be historical resources. If the project will cause a substantial adverse change to the characteristics of an historical resource that conveys its significance or justifies its eligibility for inclusion in the California Register, the project is judged to have a significant effect upon the environment, according to Section 15064.5 of the CEQA guidelines. Five of the seven resources in the Project Area are considered historical resources: CA-MAD-295/827, 826, 2392, 2394 and P-20-002308. In addition, there are areas that are of special religious or social significance to the Native Americans (e.g., Traditional Cultural Properties) in the Project Area, [f] Based on the current project design, all historical resources and the sites of special religious or social significance within the Project Site may be impacted by the proposed development, either directly or indirectly.” (Fn. omitted.)

Impact 4.5-1 concerns the project’s effect on traditional cultural property. The four prehistoric sites considered historical resources are the subjects of Impacts 4.5-2 through 4.5-5. The historic-period resource, the Madera Canal, is addressed in Impact 4.5-6. Impacts 4.5-7 through 4.5-9 concern the potential impact on undiscovered buried prehistoric- or historic-period resources, paleontological resources not yet discovered, and human remains.

The wording used to describe the impact is the same for each of the four prehistoric sites: “Implementation of the Proposed Project may cause a substantial adverse change in the significance of an historical or archaeological resource identified as CA-MAD-[site number]. This is considered a potentially significant impact.” (Boldface omitted.) In addition, the description of the impact for three of the four prehistoric sites states: “However, implementation of mitigation measures MM4.5-2(a) through MM4.5-2(e) would reduce this impact to a less-than-significant level.” (Boldface omitted.) The statement regarding the impact to the large bedrock milling station, CA-MAD-826, parallels this language but references only mitigation measure MM4.5-2(a).

The five mitigation measures—MM4.5-2(a) through MM4.5-2(e)—address (a) verification, (b) the use of a data recovery plan, if recommended, (c) preservation in place, if approved by County, (d) protection of the sites during construction from vandalism or inadvertent direct contact, and (e) protection of the sites after construction is completed.

The verification mitigation measure contained in MM4.5-2(a) is controversial because it provides for a second determination of whether the site is an historical resource for purposes of CEQA. It provides in full: “Prior to the commencement of construction activities that could directly or indirectly impact CA-MAD-2394, the Project Applicant shall hire a qualified archaeologist to analyze the artifacts previously recovered in test excavations to verify the data potential and integrity of the site. If it is verified that the site is a historical resource for the purposes of CEQA the qualified archaeologist shall review all existing documentation and make recommendations as to the appropriate course of action. Appropriate actions could include a Data Recovery Plan or preservation in place. The County shall review and approve any course of action recommended by the archaeologist.” (Italics omitted.)

B. “Verification” of an Historical Resource

1. Contentions of the parties

Plaintiffs argue that the verification procedure adopted in mitigation measure MM4.5-2(a) implicitly contradicts the EIR’s conclusion that the four prehistoric sites are historical resources for purposes of CEQA.

A similar argument regarding the verification of the archaeological sites as “historical resources” for purposes of CEQA was raised in the Dumna Tribal Government’s comment letter. The letter asserted that the mitigation measure requiring verification was unnecessary. The final EIR responded to this comment by stating that Applied Earthworks, Inc.’s “evaluation did not include standard post-field technological analyses, interpretations, and regional comparisons commonly used by archaeologists to support a determination that the archaeological site meets the CEQA criteria for a unique archaeological resource or a historical resource. Thus, the eligibility determination made by Applied Earthworks requires verification, which is provided for by mitigation measure MM4.5-2(a).”

On appeal, defendants’ description of the verification process differs from that contained in the foregoing response to the Dumna Tribal Government’s comment. Here, defendants assert that the problem regarding verification is one of semantics and that, when properly interpreted, the approach set forth in the mitigation measures complies with CEQA.

Defendants interpret the term “verify” as used in the mitigation measure to mean further study" and analysis and argue that further study is indicated because of the uncertainty surrounding the sites and their contents. The uncertainty includes the total size and precise resources of each site. To illustrate this uncertainty, defendants assert “there may be numerous objects or features within a large site which individually may constitute more or less significant historical resources, such as artifacts, human remains and natural features which have been modified or used by human beings . . . .” Defendants contend that the Baloian Study stated in some cases significant artifacts had been recovered and no more data recovery would be warranted and, in other cases, the Baloian Study “suggested that the significance of a feature would potentially warrant preservation in place if feasible while other resources would be subject to data recovery.” This uncertainty, defendants contend, was recognized in the EIR, which “essentially came to the same conclusions [as the Baloian Study] and required further analysis [(i.e., verification)] as part of mitigation to determine degrees of significance for different resources and feasible mitigation in each case—either preservation in place or data recovery.”

Plaintiffs reply that this verification procedure is not authorized by CEQA and that defendants’ current description of that procedure has not been raised before this appeal and is a post hoc attempt to save an unlawful part of the EIR.

2. Subsequent verification violates CEQA

The threshold question in analyzing the mitigation measure in MM4.5-2(a) is to address the “semantic problems” referenced by defendants and determine what the mitigation measure means.

Defendants suggest (1) that the analysis to be performed by the qualified archaeologist will not reverse the EIR’s determination that certain sites are “historical resources” for purposes of CEQA, but will make determinations regarding specific aspects of those sites, such as features and artifacts, and (2) that those specific determinations will be used in selecting appropriate mitigation.

We reject this interpretation of MM4.5-2(a) because it is contrary to the plain, unambiguous language used in that mitigation measure. The relevant language provides: “If it is verified that the site is a historical resource for the purposes of CEQA . . . .” (Some italics omitted.) This language clearly states that the site, not just aspects contained within the site, will be subject to verification as a historical resource. Moreover, the final EIR’s response to the Durnna Tribal Government’s comments confirms this interpretation with its statement that “the eligibility determination made by Applied Earthworks requires verification . . . .”

Pursuant to our reading of the mitigation measures providing for verification, there are two possible results from the procedure. Either the site will be “verified” as an historical resource and the other mitigation measures listed for the resource will be applied, or it will be determined that the site is not an historical resource and the determination of historicity contained in the EIR will be undone.

We note that the verification process described in the mitigation measure is not expressly authorized by CEQA or the Guidelines. More broadly, neither CEQA nor the Guidelines authorize any mechanism or procedure for undoing an EIR’s conclusion that an archaeological site is an historical resource. Neither, we believe, can such a process be harmonized with CEQA and the Guidelines.

The relevant provisions include Guidelines section 15064.5, subdivision (c)(1), which states: “When a project will impact an archaeological site, a lead agency shall first determine whether the site is an historical resource, as defined in subdivision (a).” In addition, another Guideline states: “Prior to approving a project the lead agency shall certify that: [f] (1) The final EIR has been completed in compliance with CEQA . . . .” (Guidelines, § 15090, subd. (a)(1); see Pub. Resources Code, §21151, subd. (a) [local agencies shall certify completion of the EIR].)

The use of the word “shall” in Guidelines section 15064.5, subdivision (c)(1) indicates that the determination whether an archaeological site is an historical resource is mandatory. (See id., § 15005, subd. (a) [“shall” defined as mandatory].) Also, that provision’s use of the word “first” and the guideline concerning the certification of EIR’s lead to the conclusion that the determination must be made sometime before the final EIR is certified, and it cannot be undone after certification of the EIR. In other words, if the determination regarding historicity is subject to being undone, the EIR cannot be regarded as complete for purposes of CEQA.

Based on the foregoing, we conclude that the mitigation measure for the four prehistoric-period sites contained in MM4.5-2(a) sets forth a course of action that is contrary to law. The postcertification verification procedure allows for an environmental decision to be made outside an arena where public officials are accountable. (Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 96 [108 Cal.Rptr.3d 478].) Furthermore, the adoption of an unlawful mitigation measure means that County “has not proceeded in a manner required by law” for purposes of section 21168.5, and the writ of mandate issued should have directed County to remedy this error.

C. Feasible Mitigation and Preservation in Place

1. General rules regarding the discussion of mitigation

The most general of principles that affect an EIR’s discussion of mitigation is the principle that an EIR is “an informational document.” (§21061.) It is the policy of California that EIR’s and other documents required by CEQA “be organized and written in a manner that will be meaningful and useful to decisionmakers and to the public.” (§ 21003, subd. (b).)

Organizing and providing information in an EIR is guided in part by the requirement in section 21100 for detailed statements on certain matters. (§ 21061.) That section requires, among other things, that EIR’s contain a detailed statement of (1) all significant effects on the environment of the proposed project, and (2) the mitigation measures proposed to minimize the significant environmental effects of the proposed project. (§ 21100, subd. (b)(1), (3).) The purpose of these detailed statements is to provide agencies and the public with “information about the effect which a proposed project is likely to have on the environment [and] list ways in which the significant effects of such a project might be minimized . . . .” (§ 21061.)

The detailed statements in an EIR need not be technically perfect to be legally sufficient. (Guidelines, § 15003, subd. (i).) Instead, they are reviewed for “adequacy, completeness, and a good-faith effort at full disclosure.” (Ibid.)

Section 21100, subdivision (b)(3)’s requirement for a detailed statement of mitigation measures proposed is amplified by Guidelines section 15126.4. Subdivision (a) of that guideline sets forth the general rules for the discussion of mitigation measures; subdivision (b) sets forth the specific rules applicable to historical resources; and subdivision (b)(3) addresses the narrower topic of historical