Carla B. Hass



(PLACERVILLE, CA) – The El Dorado County officials today announced a victory in the appeal of Newtown Preservation Society, et al. v. County of El Dorado, preventing further delay of the County's project to replace the existing Newtown Road Bridge over South Fork Weber Creek.  In February 2020, the trial court had ruled in favor of the County and petitioners appealed that decision.  In a thirty-four page decision, the Third District Court of Appeal ruled in favor of the County on all arguments and affirmed the trial court's decision. 


"We are pleased that the Third District Court of Appeal ruled in our favor and affirmed the trial court's denial of the petition for writ of mandate by a local resident and the Newtown Preservation Society alleging that the County violated the California Environmental Quality Act in pursuit of this important public safety project," said Deputy County Counsel Breann Moebius, who represented the County in the trial and appellate courts.


"After more than two years of legal wrangling that risked delaying the project, we're happy to get on with the business of the County to replace the 90 year old Newtown Road Bridge to make it safer for the residents in the area and the general traveling public," said Department of Transportation Deputy Director, John Kahling.


The central disputes on appeal involved petitioners' claims that the trial court erred in upholding the mitigated negative declaration because, according to petitioners, there was substantial evidence of a fair argument of potentially significant impacts on resident safety and emergency evacuation and the County impermissibly deferred analysis and mitigation of those impacts.  The appellate court rejected these arguments, finding that petitioners incorrectly framed the issues.  As one of a handful of CEQA cases analyzing challenges based on wildfire risks, the decision provides guidance for future public and private projects.  The appellate court explained:


"The question is not whether substantial evidence supports a fair argument that the proposed project will

have significant impacts on resident safety and emergency evacuation.  [T]he question is whether the project may have a significant effect on the environment. . . . The [residents'] statements relate to how existing wildfire

hazards might impact residents during the project's construction and do not support a fair argument that the project may have a potentially significant effect on the environment or may exacerbate existing environmental hazards, i.e., "effects that arise because the project brings 'development and people into the area affected.'""


Throughout its decision, the appellate court relied heavily on the thorough decision of the trial court and demonstrated through the record that the County had exhaustively complied with the analysis CEQA requires.  Similar to the trial court, the appellate court considered the testimony submitted in opposition to the project and concluded that the testimony lacked the necessary expertise and factual basis to carry petitioners' burden.  The appellate court recognized the expertise necessary to evaluate evacuation routes and that the Department of Transportation had coordinated with the Office of Emergency Services to ensure adequate evacuation options in the event of a fire during construction.


While petitioners sought to fault the County for not identifying predetermined evacuation routes, the appellate court recognized the analysis the County had performed and the inability to identify the ideal evacuation route in advance of an emergency.  The appellate court explained:


"[T]he agency with the expertise and authority over evacuations approved of the mitigation proposed and would continue to play a key role in determining which mitigation measures to employ in a given emergency.  The record also shows that it was impractical and infeasible for the County to articulate which evacuation option would be implemented in a specific emergency.  As the County explained, '[s]ince each emergency has its own unique set of circumstances, it is not possible to predetermine the manner (or direction) any specific resident will evacuate or shelter in place during a theoretical emergency' and 'fires and other emergencies are unpredictable and may require instantaneous changes to any plan for evacuation that is developed before the emergency.'"


"While risks of wildfire understandably remain a significant concern of residents in our County in light of recent catastrophes, our department ensured that this project will mitigate any temporary risks to the surrounding residents and, in the long term, will provide a safer evacuation route, since the existing bridge is likely to fail similar to the manner in which the large culvert failed at Fort Jim in 2017," said Kahling.


Ultimately, the appellate court affirmed the decision in favor of the County's arguments, finding that petitioners did not carry their burden to show substantial evidence supporting a fair argument that the project may have a significant effect on the environment necessitating a full environmental impact report.  The appellate court also rejected numerous arguments that petitioners sought to raise for the first time on appeal.  


"We mounted a strong defense by providing evidence that the County had adequately considered the impacts of the project and incorporated necessary mitigation to reduce those impacts," said Moebius.  "The County remains sensitive to the existing challenges from wildfire risks independent of this project, but the decision today reflects the limited inquiry in a CEQA case and recognizes the exhaustive analysis presented to the Board of Supervisors when the project was approved."





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