Sand Mining Litigation Update

Arielle O. Harris of Downey Brand LLP provided an update at the February 21st BPC Board of Directors meeting on the Sand Mining Litigation. The case involves a challenge by San Francisco Baykeeper, Inc. of leases to submerged lands in San Francisco Bay issued in 2012 by the California State Lands Commission (SLC) to private sand mining companies. The leases authorize mineral extraction of construction-grade alluvial sand. In 2015, the First District Court of Appeal upheld the trial court’s finding that the Environmental Impact Report (EIR) prepared by the SLC complied with the California Environmental Quality Act (CEQA), but found that the SLC needed to reconsider the leases in light of the common law public trust doctrine. In June 2016, the SLC held a public hearing and re-issued the leases with new findings regarding compliance with the public trust doctrine. In 2017 the trial court issued an order finding that the SLC complied with the Court of Appeal’s ruling. Baykeeper has again appealed the trial court’s decision, alleging that Bay mining intercepts sand supplies to the outer coast and is therefore inconsistent with the public trust. The appeals court in 2015, however, ruled expressly (in the context of CEQA) that there was sufficient evidence to support the SLC’s conclusion that sand mining does not contribute significantly to the coastal sand supplies, even from a cumulative perspective. The case is currently being briefed and will likely be set for oral argument in 2018 or 2019.