Reconsidering the case in light of the California Supreme Court's recent Berkeley Hillside ruling, the Third District Court of Appeal has reaffirmed last year's ruling concluding that a rodeo at the Santa Cruz County Fairgrounds does not qualify as an "unusual circumstance" that can override an exemption under the California Environmental Quality Act.

In April 2014, the Third District ruled that the rodeo - the first held at the Watsonville facility in many years - did not constitute an "unusual circumstance".The plaintiffs, Citizens for Environmental Responsibility, appealed the ruling to the California Supreme Court, which stayed briefings pending the Supreme Court's ruling in Berkeley Hillside, which also dealt with the unusual circumstances override of CEQA exemptions. After the Supreme Court ruling in Berkeley Hillside, the case was remanded to the Third District to revise the 2014 ruling in consideration of the Supreme Court's decision.

In Berkeley Hillside, the Supreme Court laid out a two-step approach to the "unusual circumstances" question when a lead agency is considering an exemption. 

As CP&DR reported back in March, the lead agency must first review the record to see whether unusual circumstances exist and if so courts must use the "substantial evidence" test in determining the validity of an exemption under those circumstances. The court ruled that a categorical exemption can be defeated by a "fair argument" that supports a reasonable possibility that significant environmental effects will result from the "unusual circumstances." 

But it also held that "a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect." 

The Third District used this framework in re-examining the Santa Cruz rodeo case, making it the first appellate case to do so.

The rodeo case began in 2011, when the Santa Cruz County Deputy Sheriff's Association sought to have a charity rodeo at the county fairgrounds in Watsonville, even though no rodeo had taken place in at least 20 years.  The fairgrounds invoked the Class 23 exemption, which is used for "normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose". Local environmental activists sued. Sacramento County Superior Court Judge Lloyd Connelly permitted the event to go forward but the case was appealed because of the legal principles involved.

The plaintiffs had claimed that, in adopting a Manure Management Plan to protect nearby Salsipuedes Creek, the fairground managers essentially gave up their claim to a categorical exemption by admitting there was a hazard to mitigate. 

The environmentalists argued that the court had to compare the rodeo not to other events at the fairgrounds but to public gathering facilities, including "racetracks, stadiums, convention centers, auditoriums, amphitheaters, planetariums, swimming pools, and amusement parks."

The appellate court rejected this argument. Writing for a three-judge panel, Justice William J. Murray said: "[I]t would be extremely unusual to have horses or cattle and manure anywhere near a public swimming pool; thus, a comparison of the operations of the public swimming pools to fairground gacilities for usual and unusual circumstances would be unfair." 

So the court compared the rodeo to other events at the Santa Cruz County Fairgrounds: "The normal operations of the Fairground included about two dozen equestrian and/or livestock events each year for at least the last three years before the rodeo. The proposed rodeo did not involve more horses or livestock than were used for the other events and no changes to the facility or the operations were necessary." 

Even if an unusual circumstance could have been established, the court concluded, substantial evidence was not submitted by the plaintiffs that the environment may have been harmed. In particular, the court concluded that the plaintiffs had merely speculated about the difference between the Watsonville facility and "the normal fairground," rather than providing any hard evidence. 

"As we have noted, once an agency meets its burden of establishing that a project is categorically exempt, the burden shifts to the party challenging the exemption to produce substantial evidence establishing the exception," the court wrote. "Appellants cannot satisfy this burden by speculation.  They must provide evidence."  

Turning to the other test - that the plaintiffs can establish an unusual circumstance "with evidence that the project will have a significant environmental effect" - the court basically found that the environmentalists' own briefing strategy undercut this argument, mostly because the plaintiffs didn't argue this point in the rodeo case before the Berkeley Hillside case was decided. 

"Appellants made no attempt before the District's board or in the trial court to prove the rodeo project will actually have a significant effect on the environment," the court wrote. "The entire thrust of appellants' argument below and on appeal is that the rodeo project creates an environmental risk to the Salsipuedes Creek because in their view, there is a reasonable possibility that the project may have a significant environmental effect on the creek." 

The court added: "We conclude that appellants have failed to establish unusual circumstances based on substantial evidence that the project will have a significant effect on Salsipuedes Creek."

The Case: 

Citizens for Environmental Responsibility v. State of California ex rel. 14th District Agricultural Association, C070836 

The Lawyers:

For Citizens for Environmental Responsibility: Douglas J. Chermak, Lozeau/Drury, 

For Fair District: Randy L. Barrow, Deputy Attorney General,