This is the complete legal document filed on November 12 by plaintiffs: Center for Biological Diversity, TriCounty Watchdogs, Wishtoyo Foundation and the Center on Race, Poverty & the Environment vs. Kern County, the Kern County Board of Supervisors, Tejon Mountain Village, LLC, Tejon Ranch Co. and 30 defendents yet to be named.
Petition for Writ of Mandate
John Buse (SBN 163156)
Adam Keats (SBN 191157)
Matthew Vespa (SBN 222265)
Jonathan Evans (SBN 247376)
CENTER FOR BIOLOGICAL DIVERSITY
351 California St., Suite 600
San Francisco, California 94104
Telephone: (415) 436-9682
Facsimile: (415) 436-9683
Attorneys for Petitioners
CENTER FOR BIOLOGICAL DIVERSITY and WISHTOYO FOUNDATION
(additional counsel listed on next page)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF KERN
CENTER FOR BIOLOGICAL DIVERSITY,
TRICOUNTY WATCHDOGS, and
CENTER ON RACE, POVERTY & THE ENVIRONMENT,
KERN COUNTY and
KERN COUNTY BOARD OF SUPERVISORS
TEJON MOUNTAIN VILLAGE, LLC,
TEJON RANCH CO.,
and DOES 1-30,
Real Parties in Interest.
Case No. TBA (to be allocated by clerk)
PETITION FOR WRIT OF MANDATE
[CCP § 1094.5 (§ 1085); Public Resources
Code § 21000 et seq. (California
Environmental Quality Act)]
Petition for Writ of Mandate 1
(caption continued from first page)
Jason A. Weiner (SBN 259264)
3875-A Telegraph Road, #423
Ventura, CA 93003
Telephone: (805) 823-3301
Facsimile: (805) 258-5107
Attorney for Petitioner WISHTOYO FOUNDATION
Caroline Farrell (SBN 202871)
CENTER ON RACE, POVERTY & THE ENVIRONMENT
1224 Jefferson St
Delano, CA 93215
Telephone: (661) 720-9140
Facsimile: (661) 895-8893
Brent Newell (SBN 210312)
CENTER ON RACE, POVERTY & THE ENVIRONMENT
47 Kearny St., Suite 804
San Francisco, CA 94108
Telephone: (415) 346-4179
Facsimile: (415) 346-8723
Attorneys for Petitioners
CENTER ON RACE, POVERTY & THE ENVIRONMENT
and TRICOUNTY WATCHDOGS
Petition for Writ of Mandate Page 1
1. This action challenges the October 5, 2009 decision of Kern County and the
Kern County Board of Supervisors (“Respondents”) to approve the Tejon Mountain Village
Specific Plan (“Tejon Mountain Village”, “TMV”, and “Project”) and certify the
Environmental Impact Report (“EIR”) for the Project. Respondents’ approval was in
violation of the California Environmental Quality Act (“CEQA”), Public Resources Code §
21000 et seq., and the CEQA Guidelines, title 14 California Code of Regulations, § 15000 et
2. Tejon Mountain Village is a massive luxury resort project in the Tehachapi
Mountains on the southern edge of Kern County, to the east of Interstate 5. The Project would
have numerous environmental impacts that were not addressed or were insufficiently
addressed in the EIR. These impacts include harm to regional air quality, contributions to
global warming, harm to essential and critical habitat for the endangered California condor,
harm to other threatened and endangered species and their habitat, harm to protected cultural
resources, increased traffic, increased risk of wildfires and flooding, and impacts to water
quality. The EIR also fails to adequately identify a sufficient water supply for the project,
fails to adequately describe the Project’s impacts on regional water supplies, and improperly
excludes Castac Lake in its analysis.
3. Petitioners and Plaintiffs Center for Biological Diversity, Wishtoyo Foundation,
TriCounty Watchdogs, and Center on Race, Poverty & the Environment (“Petitioners”)
request that this Court vacate and set aside the Project and related approvals and the
certification of the EIR because Respondents failed to comply with CEQA and applicable
State Planning and Zoning Laws.
JURISDICTION AND VENUE
4. This Court has jurisdiction over this action pursuant to California Code of Civil
Procedure sections 1085 and 1094.5 and Public Resources Code sections 21168 and 21168.5.
This Court has the authority to issue a writ of mandate directing Respondents to vacate and set
Petition for Writ of Mandate Page 2
aside its approval of the Project and certification of the EIR for the Project under the Code of
Civil Procedure sections 1085 and 1094.5.
5. Venue for this action properly lies in the Kern County Superior Court because
Respondents and the Project are located in Kern County.
6. Petitioner CENTER FOR BIOLOGICAL DIVERSITY is a non-profit, public
interest corporation with over 40,000 members and offices in San Francisco, Los Angeles, and
Joshua Tree, California, as well as offices in Arizona, New Mexico, Oregon, Vermont, and
Washington, D.C. The Center for Biological Diversity and its members are dedicated to
protecting diverse native species and habitats through science, policy, education, and
environmental law. Recognizing that global warming from society’s emission of greenhouse
gases is one of the foremost threats to the Center for Biological Diversity’s members and their
recreational, spiritual, vocational, educational, aesthetic and other interests in the earth’s
environment, biodiversity, and public health, the Center for Biological Diversity works to
reduce United States greenhouse gas emissions and promote sound conservation strategies in
order to protect these interests. Center for Biological Diversity members reside and own
property in Kern and neighboring counties and use areas surrounding the Project site for
recreational, wildlife viewing, scientific, and educational purposes.
7. Petitioner WISHTOYO FOUNDATION is a nonprofit organization in Ventura
County with over 700 members composed of Chumash Native Americans, Ventura County
residents, and Los Angeles County residents. Wishtoyo Foundation’s mission is to preserve,
protect, and restore Chumash culture, the culture and history of coastal communities, cultural
resources, and the environment. The Wishtoyo Foundation shares traditional Chumash
beliefs, cultural practices, songs, dances, stories, and values with the public to instill
environmental awareness and responsibility for sustaining the health of our land, air, and
water for the benefit of future generations. The Chumash People, including members of
Wishtoyo Foundation, have a long history of interaction with the California condor for a
Petition for Writ of Mandate Page 3
variety of purposes, including religious and ceremonial ones. The Chumash People and
members of the Wishtoyo Foundation also share a sacred and cultural relationship with the
California Condor that is depicted in Chumash Peoples’ ancient cave paintings and told in
Chumash stories which have been passed down from generation to generation for over 10,000
years. The Chumash People, including ancestors of members of the Wishtoyo Foundation,
and the People of the Kitanemuk and Kaiawasu Yowlumne tribes, resided in villages,
conducted ceremonies at sacred sites, and or buried their dead in and around the proposed
Tejon Ranch project site for thousands of years. The Chumash People and members of the
Wishtoyo Foundation have a strong cultural interest in the recovery of the California condor
and the protection of Tejon Ranch’s cultural and environmental resources.
8. Petitioner TRICOUNTY WATCHDOGS, a non-profit public interest
corporation, seeks to protect the natural and cultural resources of the region known as the
“Mountain Communities” of Kern, Los Angeles, and Ventura Counties, and to promote
ecotourism and responsible growth in the area. Most Tri-County Watchdogs members live in
the Mountain Communities, in the immediate vicinity of Tejon Ranch and the Project site.
Tri-County Watchdogs and its members are concerned about the region’s water supply, its air
pollution, the cultural and historical heritage of the region, economic opportunities, the
neglect of the area by the counties and the state, and about approaching destructive sprawl.
9. Petitioner CENTER ON RACE, POVERTY & THE ENVIRONMENT is a non-
profit environmental-justice organization with offices in San Francisco and Delano,
California. The Center on Race, Poverty and the Environment provides legal and technical
assistance to grassroots groups in low-income communities and communities of color fighting
environmental hazards. The Center on Race, Poverty and the Environment seeks to empower
individuals and communities while addressing environmental hazards facing those individuals
and communities. For the past 10 years, the Center on Race, Poverty & the Environment has
had an office in Kern County and worked with Kern County community groups to protect
their public health by reducing their exposure to air pollutants and by participating in land use
Petition for Writ of Mandate Page 4
decisions that affect their communities.
10. Petitioners and their members would be directly, adversely and irreparably
affected by the Project and its components, as described herein, until and unless this Court
provides the relief prayed for in this petition.
11. Respondent KERN COUNTY (the “County”) is a local governmental agency
and political subdivision of the State of California charged with the authority to regulate and
administer land use activities within its boundaries, subject at all times to the obligations and
limitations of all applicable state, federal, and other laws, including CEQA and the CEQA
Guidelines and Planning and Zoning Laws. The County also has the authority to legislate
changes to land use and policy within its jurisdiction. The County is the lead agency under
CEQA for the preparation of the EIR and for the approval of the Project.
12. Respondent KERN COUNTY BOARD OF SUPERVISORS is the legislative
body for Kern County.
13. Real Party in Interest TEJON MOUNTAIN VILLAGE, LLC (“Applicant”) is the
applicant for the entitlements that constitute the Project. Based on the Applicant’s status as
the sole identified applicant and developer for the Project, and on Petitioner’s information and
belief, Applicant adequately represents the interests of any and all other non-joined parties in
14. Real Party in Interest TEJON RANCH CO. is the owner of the real property
known as Tejon Ranch, including the property on which the Project would be located.
15. Petitioners are currently unaware of the true names and capacities of Real Parties
in Interest, Does 1 through 30, inclusive. Does 1 through 30, inclusive, are persons or entities
presently unknown to Petitioners who claim some legal or equitable interest in the Project that
is the subject of this action. Petitioners will amend this petition to show the true names and
capacities of Does 1 through 30 when such names and capacities become known.
Petition for Writ of Mandate Page 5
16. Tejon Mountain Village is a proposed development located on Tejon Ranch, the
largest single privately-owned property in California at approximately 270,000 acres. The
TMV site is located on the west-central portion of Tejon Ranch, just east of Interstate 5 in the
Tehachapi Mountains. The Project site consists of approximately 26,417 acres of mixed
terrain, including steep and rugged hillsides and ridgelines, oak woodlands, and savannah
grasslands. It is currently undeveloped, being used primarily as open ranchland but also as
hunting grounds and film production sites. The proposed Project would consist of 3,450
residences, up to 160,000 square feet of commercial development, two golf courses, riding
and hiking trails, two helipads, community centers, and various assorted utility and
infrastructure facilities. The Project would be primarily a low-density development, scattering
approximately 7,867 acres of developed land throughout the 26,417 acre Specific Plan site.
The remaining 21,335 acres would remain ranchlands and various degrees of open space.
17. Castac Lake is a water body east of Interstate 5 that is entirely surrounded by the
Project. Described in the EIR as a “natural lake” that historically was a “saline sag pond,”
there is currently little that is natural about Castac Lake. The Tejon Ranch Co. maintains
Castac Lake at an artificially high water level with groundwater pumped from Basin 5-29,
which is also used for drinking water. The Project includes a multi-use trail around Castac
Lake and relies on the lake as a source of water for fire suppression. At the Applicant’s
request, Castac Lake and unspecified “facilities directly adjacent to Castac Lake” were
removed from the Project subsequent to the Notice of Preparation (“NOP”) for the Project and
prior to circulation of the Draft EIR.
Water Supply and Water Quality
18. The Project has no local surface water supply and sits on top of a severely
depleted and over-committed groundwater aquifer, from which Tejon Ranch Co. already
draws over 1500 acre-feet per year (“AFY”) just to maintain the present level of Castac Lake.
19. Rather than reflecting the confines of the local water supply, TMV is possible
only with copious supplies of imported water.
Petition for Writ of Mandate Page 6
20. With no reliable local water source, TMV instead relies entirely on the unreliable
and shrinking deliveries of State Water Project (“SWP”) water. The EIR minimizes
discussion of the low historical reliability and erratic, interruptible nature of this conveyance,
and ignores the well-established principle that SWP water may not be used to create an
economy that would become dependent on its supply.
21. Water for TMV will be supplied exclusively by Tejon-Castac Water District
(“TCWD”). TCWD is controlled by Tejon Ranch Co. and shares a mailing address with
Tejon Ranch Co.’s headquarters. All TCWD board members are financially tied to Tejon
Ranch Co. TCWD lacks a website and does not have a regular meeting schedule.
22. In preparation for the EIR, the Kern County Planning Department requested and
received a Water Supply Assessment (“WSA”) from TCWD in August, 2008. The WSA is
included in the EIR as Appendix N.
23. TCWD is also required by law to create and update an Urban Water
Management Plan (“UWMP”), the latest revision of which was in 2005 (another revision is
due in 2010). However, the Kern County Planning Department states that the 2005 UWMP
was not used in creation of the WSA or EIR, thereby leaving out a critical publicly-reviewed
source document that contradicts information in the EIR and WSA.
24. The EIR and WSA estimate TMV’s total water demand at 2,900 AFY,
representing 72% of the total 4,002 AFY yearly demand for water from Tejon Castac Water
District. This number in the EIR assumes sharply-reduced water demand for landscaping and
other outdoor uses when compared to typical developments as measured by DWR.
25. The EIR and WSA claim three “sources” for water to supply Tejon Mountain
Village: SWP water, water bank water (primarily from the Kern Water Bank), and recycled
water. Neither the EIR nor the WSA contain the contracts demonstrating delivery of any of
the three “sources” of the water. The treatment facility required to provide recycled water has
yet to be funded or constructed.
Petition for Writ of Mandate Page 7
26. TCWD’s 2005 UWMP explains that TCWD’s water from the SWP is contracted
from Kern County Water Agency through (1) a 1965 Zone of Benefit claim, (2) a 1995
transfer from Wheeler-Ridge Maricopa Water Storage District (“WRMWSD”), and (3) a
transfer from Belridge Water Storage District. This information is absent from the EIR and
27. Tejon Ranch Co. is also a controlling shareholder in WRMWSD; both
WRMWSD and TCWD share directors and were at one time headed by the same Tejon Ranch
Co. employee, Dennis Atkinson.
28. Through these three contracts, TCWD claims a SWP delivery of 3,325 AFY in
an “average” year.
29. On August 20, 2009, Kern County Planning Department, responding to a Public
Records Act request, publicly released some, but not all, of TCWD’s water supply contracts,
which were added to the EIR supplemental documentation just prior to the Kern County
Planning Department’s hearing on the EIR.
30. The documents provided by this Public Records Act request include:
a. May 1993, “M & I Contract: Contract between Kern County Water
Agency and Tejon-Castac Water District for a Water Supply”;
b. November 14, 1995, “Amendment No. 1 to the Water Supply Contract
between Kern County Water Agency and Tejon-Castac Water District”;
c. November 14, 1995, “Agricultural Contract: Contract between Kern
County Water Agency and Tejon-Castac Water District for A Water Supply” with
“Agricultural Contract: Amendment No. 1 to the Water Supply Contract Between Kern
County Water Agency and Tejon-Castac Water District”, also dated November 14, 1995,
executing the “Monterey Amendment” also attached.
d. December 8 and 13, 1995: “Amendment 21” and “Amendment 24” to
the “Contract between Department of Water Resources and Kern County Water Agency for a
Supply of Water”.
Petition for Writ of Mandate Page 8
31. Both the Agricultural Water Contract and the M & I Contract feature
amendments based on the Monterey Amendment. The 1994 Monterey Agreement and
subsequent Monterey Amendment implemented major changes to the long-term contracts
between SWP Contractors and DWR. The Monterey Amendment includes authorization of a
one-time transfer of water from agricultural districts to urban districts. The WRMWSD
agricultural water transfer to TCWD is a part of the agricultural-urban water transfer
authorized by the Monterey Amendment, although the EIR makes no mention of this.
32. The EIR for the Monterey Amendment was successfully challenged by
environmental organizations, resulting in a 2000 appellate decision. The Monterey
Amendment contains a clause that a timely legal challenge to the Amendment shall delay
implementation of the amendment until the challenge is resolved. Yet nearly a decade later,
the revised EIR that could resolve the challenge has yet to be published by DWR. Until the
Monterey Amendment EIR is finalized and the Amendment itself is free of legal challenge,
the status of the Monterey Amendment remains in limbo.
33. The TCWD Agricultural Water Contract and the Monterey Amendment to that
contract were signed the very same day, and the Monterey Amendment is claimed as the
reason for removal of the water’s agricultural purpose restriction.
34. Although a “Master Contract” is repeatedly referred to in the supplied documents
as the basis for these contracts, no such contract was included in the documents.
35. The TCWD agricultural water contract made public via the Public Records Act
request (but wholly absent from the EIR and WSA) indicates that it is this agricultural water
that was being stored by TCWD in the Kern Water Bank and Pioneer Project. The contracts
indicate that once the agricultural water is required for use by TMV, this water will no longer
be diverted to supply Kern Water Bank.
36. The EIR and WSA fail to reveal that Article 21 surplus (interruptible) water is
used as a source for the project. According to the most recent DWR reports, surplus water
Petition for Writ of Mandate Page 9
will be severely curtailed in the future, making this type of supplemental delivery unavailable
as a source of replenishment.
37. The Sacramento/San Joaquin Delta (“Delta”) continues to sustain major negative
environmental impacts resulting from water diversions, including more than 20,000 acre-feet
of Delta water already diverted and currently stored by TCWD in the Kern Water Bank
(“KWB”) for TMV development. TMV’s total dependence on future SWP deliveries only
exacerbates this impact by making it permanent. Yet no discussion of such impact is included
in the EIR.
38. Castac Lake, a formerly dry saline lakebed, is now artificially filled and
maintained by Tejon Ranch Co. with groundwater withdrawals of at least 1500 AFY. This
impact on groundwater is never adequately disclosed, let alone analyzed, in the EIR. The lake
was filled by Tejon Ranch Co. and features prominently in literature promoting the mountain
resort. The lake’s use of groundwater is not addressed in the EIR. Major water quality
problems with Castac Lake have also been identified.
Climate Change and Greenhouse Gas Emissions
39. California is not only extremely vulnerable to the impacts of global warming, but
is also responsible for a significant portion of the U.S. and global emissions of greenhouse
gases. Because most greenhouse gas emissions remain in the atmosphere for decades or
centuries, the quality of life our children and grandchildren experience depends on if and how
rapidly California and the rest of the world reduce these emissions. Aggressive reductions in
emissions can avoid drastic global warming impacts predicted for the end of the century,
including temperature rises between 8 and 10.5 °F, 90% loss of the Sierra snowpack, 22-30
inches of sea level rise, and 4-6 times as many heat-related deaths in major urban centers.
40. Despite its claims of “smart-growth” the Tejon Mountain Village represents a
throwback to the auto-dependent sprawl typical of the late Twentieth Century that has caused
the United States and California to be one of the largest greenhouse gas polluters on the
planet. The Project itself would result in over 208,000 metric tons of CO2 equivalent
Petition for Writ of Mandate Page 10
produced per year creating a massive carbon footprint in an undeveloped area away from
41. California has set emission reduction targets in order to combat global warming
under the California Global Warming Solutions Act of 2006 (“AB 32”) and Executive Order
S-3-05. AB 32 requires that California reduce its emissions to 1990 levels by 2020.
Executive Order S-3-05 sets a target to reduce California’s greenhouse gas emissions to 80%
below 1990 levels by 2050. At the time they were passed, the emission reduction targets set
by AB 32 and Executive Order S-3-05 roughly corresponded to the level of emission
reductions scientists deemed necessary to avoid dangerous climate change. However, based
on increased study and alarming recent climate change observations, there is increasing
scientific consensus that deeper reductions are necessary to limit atmospheric concentrations
of greenhouse gases to a level that would avoid devastating impacts.
42. Senate Bill 97 (2007) confirmed that the analysis of the potentially significant
impacts to global warming from a project’s generation of greenhouse gas emissions is
required under CEQA. To help provide guidance to lead agencies, the California Air
Pollution Control Officer’s Association (“CAPCOA”)—an association of air pollution control
officers representing air quality agencies throughout California—analyzed various approaches
to determining the significance of greenhouse gas impacts under CEQA. Under CAPCOA’s
analysis, the only two thresholds that were both highly effective at reducing greenhouse gas
emissions and highly compliant with AB 32 and Executive Order S-3-05 emission reduction
targets were a threshold of zero or a 900-ton per-year CO2 equivalent threshold, which is far
below the emissions from this Project.
43. The Project sits at the intersection of three of California’s—indeed the
nation’s—most polluted air basins: the San Joaquin Valley Air Basin, South Coast Air Basin,
and Mojave Desert Air Basin. All three air basins have continually failed to attain the Clean
Air Act’s health-based air quality standards requirements for several pollutants, including
Petition for Writ of Mandate Page 11
low-level ozone and fine particulate matter (PM2.5). The air basin’s nonattainment has been
persistent for decades, with the San Joaquin Valley and the South Coast both designated as
extreme—the worst classification—for low-level ozone. The San Joaquin Valley logs the
most days of any air basin in the United States when air quality exceeds the 8-hour ozone
National Ambient Air Quality Standard, with the South Coast following closely behind. The
EPA has documented that the San Joaquin, South Coast, and Mojave Air Basins have the
highest recorded 8-hour ozone concentrations in the United States. For particulate matter of
2.5 microns or less, the San Joaquin Valley Air Basin has the nation’s highest concentrations,
while the South Coast Air Basin has the third highest PM in the nation. According to the
American Lung Association’s State of the Air: 2009 Report, Kern County is the most PM2.5
polluted county, and Bakersfield is the most PM2.5 polluted city, in the United States.
44. Ozone is a photochemical pollutant produced through the combination of
sunlight and ozone precursor substances such as reactive organic gases (also called volatile
organic compounds) and nitrogen oxides. Particulate matter with an aerodynamic diameter of
2.5 microns or less (PM2.5), on the other hand, consists of very small particles that are less
than 2.5 millionths of a meter in diameter and suspended directly in the air as a result of
combustion or dust or formed in the air through a reaction between precursor chemicals
ammonia, volatile organic compounds, sulfur oxides, and nitrogen oxides. The resulting
impacts to public health to local residents from such degraded air quality are severe. An
abbreviated list of acute and chronic health effects includes heart and lung disease, respiratory
illness, asthma, decreased immune function, and increased mortality.
45. The Project would continue to worsen the negative air quality in the three
adjacent air basins due, in part, to the massive increase in automobile and truck traffic. The
EIR admits that the Project would exceed significance thresholds for several criteria pollutants
under the Clean Air Act, including ozone precursors (reactive organic gases and nitrogen
oxides) and particulate matter.
Petition for Writ of Mandate Page 12
46. The Project site has long been home to the California condor, a state and federal
endangered species and a state fully-protected species. The last wild condors were captured
as part of a captive-breeding program on Tejon Ranch in the 1980’s, after the wild population
declined to 22 birds. It is likely that the lack of development on Tejon Ranch was a major
factor in the species’ continued existence at that point.
47. Condors, including captive-bred birds and older wild-born birds, were
reintroduced to the wild in 1991. The reintroduction effort has had some success, with
condors currently occupying much of their historic habitat in California and populations being
reintroduced to Arizona and Baja California, Mexico.
48. Despite the most expensive species conservation effort in U.S. history, however,
condors still face significant threats and their future in the wild is by no means certain. Up to
now the most significant mortality factor to the species has been lead poisoning caused
primarily by the birds’ ingestion of hunter-shot ammunition. But with the passage of the
Ridley-Tree Condor Preservation Act (AB 821) in 2007, which banned the use of lead
ammunition in all condor habitat in California, as well as other efforts to eliminate hunters’
use of lead ammunition, lead poisoning is expected to subside as the primary threat to the
species. In its place, habitat loss is expected to play a far more significant role in the condor’s
recovery, especially as the number of condors in the wild increases.
49. Much of Tejon Ranch, including 72% of the Project site, is designated by the
U.S. Fish and Wildlife Service (“FWS”) as “critical habitat” for the condor, due to its prime
foraging habitat qualities (arguably the best and most important condor foraging grounds in
50. Although private parties are not directly prohibited under the Endangered
Species Act (“ESA”) from taking actions that may harm designated critical habitat, federal
agencies are prohibited from taking any action, including approving or issuing federal permits
to private parties, that would “adversely impact” designated critical habitat.
51. In 1997, Tejon Ranch Co. sued FWS over the reintroduction effort, seeking to
Petition for Writ of Mandate Page 13
have the reintroduction stopped or the condors reclassified under the ESA as an “experimental
population.” The lawsuit was stayed pending a settlement agreement with FWS in which
FWS agreed to help Tejon Ranch Co. prepare a Habitat Conservation Plan and an Incidental
Take Permit for condors. The draft of that plan was released earlier in 2009 and is currently
under review by FWS. Tejon Ranch Co.’s lawsuit remains stayed today.
52. The development of TMV would represent one of the largest losses of condor
habitat in the modern history of the species and would be the first development ever approved
or built in designated condor critical habitat.
53. A group that includes some of the most eminent condor biologists in the field,
including former and current participants in the California condor conservation program,
stated the importance of TMV and its critical habitat as such: “…from our experience on
TMV lands and other Tejon lands, and from examination of other available records on use of
these lands by condors, TMV lands are indeed some of the most important areas for condors
within Critical Habitat and…conversion of these lands to residential use will have negative
effects on the viability and value of Critical Habitat…”.
54. Development of TMV would constitute “adverse modification” of critical habitat
under the ESA.
55. Development of TMV would destroy essential and critical condor foraging
56. Development of TMV would disturb, and potentially destroy, an important
linkage between the major arms of historical condor habitat (the Coast Ranges and the
southern Sierra Nevada Mountains).
Other Biological Resources
57. Tejon Ranch encompasses a remarkable intersection of strikingly different
landscapes, including portions of the Central Valley, the Mojave Desert, the Sierra Nevada
Mountains, the Tehachapi Mountains, and the Transverse Ranges. The Project site is located
at the heart of this vital crossroads linking these biogeographical regions. The TMV site is
Petition for Writ of Mandate Page 14
situated primarily in upland portions of Tejon Ranch within the Tehachapi Mountains,
covering an area of exceptional biological diversity, including large expanses of oak
woodlands, grasslands, scrub, and chaparral vegetation communities, as well as smaller but
significant quantities of riparian and wetland habitats.
58. These large and relatively intact native vegetation communities support a diverse
range of wildlife and plants, including numerous endangered, threatened, rare, and sensitive
59. The EIR states that the Project’s “development envelope” is approximately 7,867
acres, but the Project will adversely affect biological resources over an even larger area due to
fuel modification zones, fragmentation of habitat, and other indirect effects.
60. The lands now occupied by Tejon Ranch contain the ancestral homes of
numerous Native American tribes, including the Inland Chumash, Kaiawasu, and Kitanemuk
Yolumne. The descendants of these tribes retain strong cultural and religious attachment to
the lands, particularly those in and around Castac Lake and the TMV site.
61. For the region’s Native Americans, the condor holds a very special place in the
universe, possessing great cultural and religious significance and being as highly regarded as
the eagle. It is one of the most important and irreplaceable cultural resources on Tejon Ranch
for the Native Americans.
62. In the 1850’s, General Edward Fitzgerald Beale created the San Sebastian Indian
Reservation and forcibly moved local Indians off of their ancestral land and onto the
reservation. During the next decade, Beale assembled Tejon Ranch from the Mexican
rancherías containing those same sacred ancestral lands.
63. Dozens of villages are documented on these lands. Natives of the area lived in
long-established settlements in many of the canyons surrounding present-day Castac Lake,
and evidence of their settlements remain throughout the area. Generally speaking, Chumash
Indians lived in the vicinity of Kashtiq (now underwater because of Castac Lake expansion),
Petition for Writ of Mandate Page 15
while the Kitanemuk and Kaiawasu Yowlumne tribes lived in the canyons east and north of
the lake. These ancestral canyons are the same that will be bulldozed and paved by the TMV
64. General Beale forced all of these tribes to move to present-day Tejon Canyon,
which made it the last Indian settlement on the property. In the 1920’s, Tejon Ranch was sued
for this forced removal of Kitanemuk, Yowlumne and Chumash, in a case that went all the
way to the U. S. Supreme Court. The Supreme Court never resolved this issue on its merits,
and many Native Americans still argue that the Tejon Ranch land legally belongs to them.
65. The TMV EIR contains minimal information regarding the Castac Lake
settlements, and denies that there is historical documentation of such sites. However, there
are numerous sources in the administrative record documenting their existence. The sources
include original depositions from Indians who were themselves moved from the canyons on
the west side of the Tejon Ranch property to the canyons to the east of the valley floor. The
villages, settlements and sacred burial sites in the Castac Lake area are likewise documented
in modern history and archaeology works, such as John Johnson’s 1978 article, “The Trail to
66. As explained elsewhere, Tejon Ranch Co. artificially maintains Castac Lake and
expanded the artificial water body beyond its natural shoreline. The original road from
Highway 5/99 on the north shore of Castac Lake was put underwater due to the enlargement
of the lake. Since the Indian village of Kashtiq was on the north shore, it too is now
67. The EIR claims that archaeologists and Native American monitors were
supervising the surveying and excavations of sensitive archeological sites. But it is
impossible to imagine that such monitors permitted the flooding of Kashtiq village. Likewise,
this supervision is called into question by a September 2001 excavation of a sacred burial site
near Castac Lake. If there was actual supervision, the excavation would not have happened.
At the moment a burial is encountered, all work should have stopped and the State of
Petition for Writ of Mandate Page 16
California, Native American Heritage Commission and the Kern County Coroner should have
been notified immediately. According to the account in the record of the Most Likely
Descendant, the bones were in a pile, seemingly removed from a common pit, and not a single
funerary item was found among the bones. This discovery suggests that the “burial site” was
really a collection of bodies found by TRC elsewhere on the property and illegally moved. It
is possible that the bodies from the Kashtiq cemetery are buried in this pile.
68. The EIR projects that the Project will add 9,000 vehicle trips to the Annual
Average Daily Traffic of Interstate 5 north of the Project and 14,000 vehicle trips to Interstate
5 south of the Project by the year 2030, making the Project responsible for 6% and 15% of all
traffic on Interstate 5 north and south, respectfully, of the Project. These figures almost
certainly understate the number of vehicle trips, however.
69. Interstate 5 is the single significant access to and from the Project site and is
already extremely burdened by northbound and southbound traffic, including very large
numbers of trucks.
70. There is no question that the Project would have significant consequences on
regional traffic, especially on Interstate 5. Cumulative traffic impacts are in fact considered
significant and unavoidable in the EIR. But the EIR still fails to adequately disclose and
analyze the Project’s impacts to traffic, grossly understating the increase in traffic that will be
caused by the Project.
71. In comparing TMV to “other mountain resorts used by Southern California
residents” the EIR actually predicts that the traffic impacts (in terms of greenhouse gasses)
will be lower, due to TMV’s closer proximity to population centers. But TMV’s close
proximity to Los Angeles suggests that traffic will be greater than that of other mountain
72. CEQA Guidelines § 15126.2(a) state that “[t]he EIR shall also analyze any
Petition for Writ of Mandate Page 17
significant environmental effects the project might cause by bringing development and people
into the area affected. For example, an EIR on a subdivision astride an active fault line should
identify as a significant effect the seismic hazard to future occupants of the subdivision. The
subdivision would have the effect of attracting people to the location and exposing them to the
hazards found there.”
73. A proposed addition to the CEQA Guidelines would add the following language
to § 15126.2(a): “Similarly, the EIR should evaluate the impacts of locating development in
other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk
areas) as identified in authoritative hazard maps, risk assessments or in land use plans
addressing such hazards areas.” Cal. Natural Resources Agency Notice of Proposed Action,
July 9, 2009.
74. TMV sits in the middle of one of the most active and dangerous fault regions in
the country. The two largest tectonic faults in California meet at TMV: the San Andreas
(which runs just adjacent to the Project site) and the Garlock (which runs directly through the
center for the Project site). They are joined by two smaller faults, Big Pine and White Wolfe.
The Garlock Fault has a slip rate estimated to be between 5 and 30 mm per year, while the
San Andreas’ rate is estimated to be between 30 and 60 mm per year.
75. Since 1950 there have been 23 large wildfires on the Project site or within ¼
mile of it. Despite admitting that “the risk of loss, injury, or death involving wildland fires
would be significant,” the EIR states that the “overall intensity of…fires [on TMV] is
expected to be relatively low and concludes that the risk is less than significant after
Environmental Review and Approval
76. The NOP for the Project was issued on September 30, 2005.
77. The Draft Environmental Impact Report (“DEIR”) was released on May 29,
2009. The DEIR totaled 13 binders each 5.5 inches thick and two binders each two inches
thick, as well as two large rolls of maps. The document totaled over 21,000 pages and stood
Petition for Writ of Mandate Page 18
nearly six feet tall. Only three full paper copies were initially created, although one was later
made available to the local newspaper The Mountain Enterprise for public review. The
document was placed on Kern County’s website (broken up into separate files, many of which
were 70 and 80 megabytes large and therefore extremely difficult to download) and
distributed by request on four cd-roms.
78. The Notice of Availability for the DEIR stated that the public comment period
would close on July 13, 2009, yet stated that a public hearing was scheduled before the Kern
County Planning Commission “to receive comments on the document” on August 13, 2009.
79. The DEIR concluded that Project impacts to aesthetics/light and glare, air quality
and climate change, biological resources (cumulative only), hazards related to the exposure of
people to wildlife, noise, population growth, and traffic (cumulative only) would remain
significant after all feasible mitigation measure were adopted.
80. The EIR determined that impacts to agricultural resources, air quality and
climate change, biological resources, cultural resources, geology and soils, hazards and
hazardous materials, hydrology and water quality, noise, public services, recreation, traffic,
and utilities and service systems were potentially significant but could be mitigated below a
level of significance. Despite substantial evidence to the contrary, the EIR found no other
impacts potentially significant.
81. Between June 10, 2009, and July 8, 2009, the Kern County Planning Department
received no less than 14 letters from individuals and organizations and over 55 petition
signatures requesting an extension of the DEIR comment period. Most of these requests were
based on the size of the DEIR and its related documents, the size and complexity of the
proposed project, and the apparently convenient timing of the release of the documents almost
simultaneously with the environmental review documents for the Tejon Ranch’s proposed
HCP and the DEIR for the Frazier Park Estates project proposed for an area directly across
Interstate 5 from the TMV project site.
82. The Kern County Planning Department, by letter dated July 6, 2009, rejected
Petition for Writ of Mandate Page 19
these requests for an extension, stating in boldface font that the “DEIR public review period
ends on July 13, 2009 at 5:00.” This statement was contradicted in the same letter, however,
by the statement that the Kern County Planning Department “will accept all comments on the
DEIR and project throughout the entire process until the close of the public hearing at the yet
to be scheduled Kern County Board of Supervisors public hearing. This process ensures that
comments will be considered and responses (both written and verbal) are provided through the
Planning Commission and Board of Supervisors hearings.”
83. Petitioners TriCounty Watchdogs and Center for Race, Poverty & the
Environment submitted extensive written comments on the DEIR dated July 13, 2009.
84. On July 29, 2009, the Kern County Planning Department recommended that the
Planning Commission’s public hearing on the DEIR be continued to September 10, 2009, to
“to provide staff more time for preparing Chapter 7-Response to Comments of the Final EIR.”
85. The Kern County Planning Department prepared and released a Final EIR
(“FEIR”) on or around late August, 2009. The FEIR consisted of the DEIR, and addendum to
the DEIR and staff report, and responses to submitted comments.
86. Petitioners Center for Biological Diversity and Wishtoyo Foundation submitted
extensive written comments on the DEIR by letter dated September 10, 2009.
87. The Final EIR made only minor changes to the text of the DEIR, and failed to
adequately address the concerns raised in submitted comments.
88. On September 10, 2009, the Kern County Planning Commission held a hearing
regarding the Project and recommended approval of the Project, by a vote of 3 in favor to 2
against, to the Kern County Board of Supervisors. On October 5, 2009, the Kern County
Board of Supervisors held a public hearing to consider the Project and voted to approve the
Project by a vote of 5 to 0.
89. The Notice of Determination for the Project was filed on October 13, 2009, with
the Kern County Clerk, who posted it on October 14, 2009.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Petition for Writ of Mandate Page 20
90. Petitioners have exhausted all administrative remedies by submitting written
comments on the Project to Respondents to request compliance with CEQA including the
completion of full and adequate environmental review. All issues raised in this petition were
raised before Respondents by Petitioners, other members of the public, or public agencies prior
to approval of the Project.
91. Petitioners have complied with Public Resources Code section 21167.5 by prior
service of a notice upon Respondents indicating their intent to file this Petition. Proof of
Service of this notification, with the notification, is attached as Exhibit A.
92. This petition is timely filed in accordance with Public Resources Code § 21167
and CEQA Guidelines § 15112.
FIRST CAUSE OF ACTION
Violation of CEQA (Public Resources Code § 21000 et seq.)
93. Petitioners hereby incorporate by reference each and every allegation set forth
94. Respondents have abused their discretion and failed to act as required by law in
the following ways:
95. Under CEQA, Respondents are required to prepare a complete and legally
adequate EIR prior to approving any discretionary project that may have a significant adverse
environmental effect. The EIR must fully disclose and analyze the project’s potentially
significant environmental effects. Respondents are also required pursuant to CEQA to
consider mitigation measures and alternatives to the Project, to adopt all feasible mitigation
measures and/or alternatives, and to determine that proposed mitigation measures will or will
not be effective in avoiding or substantially lessening the Project’s significant environmental
96. In approving the Project and certifying the EIR, CEQA requires that
Respondents must find either (1) that the Project’s significant environmental effects have been
mitigated or avoided or (2) that the unmitigated impacts are outweighed by specific overriding
Petition for Writ of Mandate Page 21
economic, legal, social, technological, or other benefits of the Project. Respondents may
reach the latter conclusion and adopt a Statement of Overriding Considerations only if it finds
that there are no feasible mitigation measures or alternatives to avoid or substantially lessen
the remaining significant environmental effects of the Project.
Failure to Adequately Disclose and Analyze the Project’s Impacts
97. The EIR failed to address or inadequately addressed entire categories of
environmental impacts, including but not limited to the deficiencies enumerated below. As a
result, Respondents failed to proceed in the manner required by law and abused its discretion
by failing to fully disclose and analyze the Project’s environmental effects.
Water Supply and Quality
98. A water supply assessment shall include “an identification of any existing water
supply entitlements, water rights, or water service contracts relevant to the identified water
supply for the proposed project, and a description of the quantities of water received in prior
years by the public water system…”. Cal. Water Code § 10910(d)(1).
99. “An identification of existing water supply entitlements, water rights, or water
service contracts held by the public water system… shall be demonstrated by providing
information related to all of the following:
a. Written contracts or other proof of entitlement to an identified water supply.
b. Copies of a capital outlay program for financing the delivery of a water
supply that has been adopted by the public water system.
c. Federal, state, and local permits for construction of necessary infrastructure
associated with delivering the water supply.
d. Any necessary regulatory approvals that are required in order to be able to
convey or deliver the water supply.” Cal. Water Code § 10910 (d)(2).
100. The EIR does not meet the informational requirements set forth in Cal. Water
Code § 10910, and contains insufficient information to permit the lead agency, the responsible
agencies and the public to determine whether a reliable long-term water supply exists for the
Petition for Writ of Mandate Page 22
Project or to evaluate the pros and cons of supplying the amount of water that the project
101. The WSA is an informational document provided to assist decision-makers and
the public in determining adequacy of the water supply under CEQA. In this instance,
however, the WSA was essentially supplied by the developer. The EIR does not address the
lack of credibility of such a document, nor does it demonstrate that Respondents performed an
independent review of the Project’s water supply as required by CEQA.
102. The EIR fails to disclose and analyze the relationship between the Monterey
Amendment and TCWD’s water supply contracts. This failure includes, but is not limited to,
the failure to explain: how the Amendment is purportedly in effect despite its non-
implementation clause; whether and how the “agricultural purpose” restriction in the TCWD
Agricultural Water Contract was lifted by the Monterey Amendment, and how such water
could be used by TMV without the Monterey Amendment in effect; that the EIR for these
transfers is not yet final; and that a court’s rejection of the new Monterey EIR could require
the transfers to be reversed or reduced.
103. Neither the EIR nor the WSA contain contracts or other information regarding
any future replenishment of the water currently stored in the two water banks once draw-down
of those supplies by TMV commences. The agricultural supply contract indicates that the
water banks will not be replenished at the same level, if at all, once TMV is constructed,
meaning that this “supply” is anything but reliable—it is impermanent and ephemeral.
104. Neither the EIR nor the WSA explain how TMV’s total water demand can be
identical continuously between 2008 and 2028, even though TMV has yet to be built at all,
and will not be fully built-out for decades, nor do either the EIR or the WSA explain what will
happen to any water that is not used during this period (i.e., whether it will be banked for
future use, sold, or somehow otherwise used).
Petition for Writ of Mandate Page 23
105. The EIR does not explain how an un-built recycled water facility can be
considered a “source” even though it is not built, not funded, will not be on-line at the project
outset, and any water from it must necessarily originate from the SWP.
106. The EIR and WSA cite water bank supplies that are contradictory and
unsupported by contracts or other documentation, and cite KWB supply figures that are more
than double of those cited in the 2005 UWMP. The EIR does not explain these discrepancies.
107. The EIR improperly considers water banks to be legitimate “sources” of new
municipal water supply. A storage facility is merely an extension of the entitlements from
another source, transferred to storage by the water bank customer, and does not constitute a
108. If TCWD’s water bank storage is maintained or supplemented by SWP Article
21 “surplus” or “interruptible” water, then this source must be acknowledged in the EIR and
WSA, and reliance on surplus water as a primary source of water must be assessed as an
impact, along with the legal implications of using surplus water for permanent development.
109. The EIR and WSA ignore the artificial maintenance of Castac Lake as a major
drain on the groundwater aquifer and the necessity to create a groundwater assessment. Just
as the EIR should have included Castac Lake in its scope, it should have also assessed the
impacts on the environment, surrounding communities and water districts of supplying the
lake with over 1,500 AFY of scarce groundwater for the benefit of a luxury mountain resort
110. The EIR and WSA fail to address the water quality problems caused by the
filling of Castac Lake. There is also inadequate information on the water quality of turnback
111. The EIR fails to reconcile the Project with the DWR policy that SWP water shall
not be used to create an economy dependent on SWP water.
112. The SWP entitlements cited by TCWD do not appear to support a development
with the demands of TMV. With total TCWD demands at 4,002 AFY and “average year”
Petition for Writ of Mandate Page 24
SWP supplies at the 3,325 AFY claimed by TCWD (itself too optimistic a figure), there is a
clear deficit of nearly 700 AFY between yearly SWP supply and TCWD demands, meaning
that “banked” water must be used as a primary source even in “normal” years. The EIR and
WSA neither acknowledge nor explain this critical deficiency.
113. The EIR does not adequately address the inability to secure reliable long-term
water for the project from the SWP. With the full impact of two biological opinions and a
permanent drought yet to be felt on SWP deliveries, reliability is certain to decrease, and yet
the EIR assumes the opposite. The SWP deliveries from TCWD are not a stable long-term
supply of water.
114. The EIR seriously underestimates the outdoor water requirements for TMV, thus
artificially decreasing the project’s overall demands.
115. The EIR routinely inflates the reliability of SWP deliveries in average, dry and
drought years. The inflated reliability also fails to account for future restrictions on SWP
supplies due to intervening factors such as biological opinions and prolonged drought. Due to
such factors, the reliability of the SWP for 2009 is forecasted at 40% at best and may not
improve for years.
116. The EIR improperly discounts or ignores environmental impacts to the San
Francisco Bay-Delta caused by the TMV water supply, including but not limited to the
20,000+ acre feet of stored Delta water and the Project’s need for permanent ongoing Delta
This is part of the November 06, 2009 online edition of The Mountain Enterprise.
Have an opinion on this matter? We'd like to hear from you.