In the Matter of: San Francisco Baykeeper, Inc.

Which county constitutes the proper venue in a particular case is determined according to the venue statutes—section 392 et seq. In applying these statutes to determine the county (or counties) where venue is proper, the courts generally look to the main relief sought, as determined from the complaint as it stands at the time of the motion for change of venue.” (California State Parks Found. v. Superior Ct. (2007) 150 Cal.App.4th 826, 833.) Venue is determined based upon the complaint at the time the motion to change venue is filed. (Brown v.

Superior Court (1984) 37 Cal.3d 477, 482.) In determining proper venue, the court may not consider post-motion amendments or the facts stated in affidavits in opposition to the motion. (Haurat v. Superior Ct. for Los Angeles Cnty. (1966) 241 Cal.App.2d 330, 337.)

When venue is proper in more than one county, a plaintiff may select from available options. (Crestwood Behavioral Health, Inc. v. Superior Court (2021) 60 Cal.App.5th 1069, 1075.) A defendant bears the burden of showing that plaintiff’s selection is invalid. (Id.) Unless plaintiff’s selection is shown to be invalid, transfer to another venue is inappropriate. (Colusa Air Pollution Control Dist. v. Superior Court (1991) 226 Cal.App.3d 880, 890 [declining to move to another defendant’s county of residence after determining plaintiff’s original choice of venue was correct].)

California State Parks, supra, established that in a CEQA case, which is an action against a public officer seeking vindication of a public right, section 393(b) controls the venue analysis, to the exclusion of other venue principles. (Dow AgroSciences LLC v. Superior Ct. (2017) 16 Cal.App.5th 1067, 1083, citing California State Parks Found., supra, 150 Cal.App.4th at 834- 835.) Section 393(b) must be liberally construed in favor of plaintiffs (or here, Petitioner). (150 Cal.App.4th at 844.)

Section 393(b) provides that for a cause of action against a public officer, the county in which the cause, or some part of the cause, arose, is the proper county for trial. (Code Civ. Proc., § 393, subd. (b).) The cause “arises” wherever it causes injury to the plaintiff. (Calif. State Parks Found, supra, 150 Cal.App.4th at 834.) In the context of challenged state action, the cause arises not where the agency signs the challenged order or issues an administrative directive or other regulation, but where the effects of the administrative action are felt. (California State Parks Found., supra, 150 Cal.App.4th at 834.)

The injury need not constitute the entirety or even the majority of a cause of action. (See, e.g., Colusa Air Pollution, supra, 226 Cal.App.3d at p. 833.) Instead, section 393, subdivision (b) requires only that at least some part of the cause arose in a given county for that county to be the proper venue. (See ibid. [“Because . . . at least a portion of plaintiffs’ claims arose in Los Angeles County, we conclude that venue in that county is proper.”].)

California State Parks involved a challenge to an agency’s decision, made in another county, to

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV176380: IN THE MATTER OF: SAN FRANCISCO BAYKEEPER, INC., A CALIFORNIA NON-PROFIT CORPORATION 06/29/2026 Hearing on Motion to Transfer filed by Lind Marine Inc. (Respondent) + CRS# 967496245934 in Department 25 approve a toll road which would traverse San Diego and Orange Counties, and which was alleged to have specific, substantial impacts in an identified part of San Diego County. (Id. at 831, 844.) The Court of Appeal held that venue was proper in San Diego County because a portion of the road was built there and was alleged to have serious, concrete environmental impacts within the county, notwithstanding that the road was also built in another county and would also have impacts elsewhere.

At first blush, language in California State Parks suggests a distinction between the injury (which it suggested must be “concrete,” and occurs where the agency’s decision will be carried out) and the effects of that injury (which may extend beyond the area of the approved project, into additional counties). However, that case was, factually, much simpler; the project was to be built and the adverse impacts would be felt in San Diego County, making venue proper there. In suggesting such a distinction, the Court of Appeal was merely rejecting the defense’s concern that, if public rights cases are not exempted from the application of section 393(b), statewide venue would become the rule. (150 Cal.App.4th at 844, citing, e.g., Stoneham v.

Rushen (1982) 137 Cal.App.3d 729, 734; Colusa Air Pollution Control Dist., supra, 226 Cal.App.3d at 888 [.) The Stoneham and Colusa cases simply rejected a defendant’s attempt to transfer venue away from plaintiff’s selected county, simply because the harms were alleged to have occurred multiple counties.

In any event, CEQA lacks any per se geographical limit on otherwise appropriate evaluation of a project’s environmental impacts, instead defining the relevant geographical environment as “the area which will be affected by a proposed project.” (Pub. Resources Code, § 21060.5.) Consequently, “the project area does not define the relevant environment for purposes of CEQA when a project's environmental effects will be felt outside the project area.” (Muzzy Ranch Co. v. Solano Cnty. Airport Land Use Com. (2007) 41 Cal.4th 372, 387.) The venue statute, the term “injury,” and the specific factual allegations should all be construed through the lens of the CEQA statute upon which Petitioner’s claims are founded: what areas are alleged to be affected.

ANALYSIS. Here, there appears to be no dispute that the challenged mining leases approved by the State are located entirely within Bay Areas counties other than Alameda County. Respondent also asserts that the challenged injuries are “almost exclusively” within San Francisco County or the outer coast. Petitioners respond, however, that part of the project is located in Alameda County and that concrete effects of the project will be felt here in connection with offloading activities at Tidewater in Oakland. In support of this contention, Petitioners cite to the Petition at ¶ 68 and excerpts of the SEIR. (Opp. Mem., 7:13-8:3; Ralston Decl. Ex. 2 [Ch. 5 from Final SEIR, at p. 5-21].) Consistent with the legal authorities discussed above, the Court considers the situs of the alleged effects.

The determination of appropriate venue must be based solely upon allegations of the Petition. (Brown, supra, 37 Cal.3d at 482; Haurat, supra, 241 Cal.App.2d at 337.) Paragraph 68, the only allegation cited by Petitioner, provides, in pertinent part, that venue lies in Alameda County

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV176380: IN THE MATTER OF: SAN FRANCISCO BAYKEEPER, INC., A CALIFORNIA NON-PROFIT CORPORATION 06/29/2026 Hearing on Motion to Transfer filed by Lind Marine Inc. (Respondent) + CRS# 967496245934 in Department 25 “because the Project has impacts in Alameda County.” It continues:

“The FEIR for the Project states that several of the offloading sites for the sand mined from Project are in the City of Oakland, within Alameda County. The Project also will have recreational and fishing impacts on Baykeeper members who reside in Alameda County.”

(Pet. ¶ 68.)

Petitioner specifically alleges that injury in Alameda County occurs due to “offloading” activities associated with the project. However, this aspect of paragraph 68 is entirely conclusory. It fails to identify any specific impact in this County or allege any fact that would establish that a cause of action arose here. (Code Civ. Proc., § 393, subd. (b) [venue lies where some part of the cause arose]; Calif. State Parks Found, supra, 150 Cal.App.4th at 834 [venue analysis turns on the question of where the injury resulting from the causes of action is felt].) However, as the allegations of a complaint should be construed together with all of the other allegations, rather than in isolation, the Court considers the offloading allegations of paragraph 68 together with the other allegations of the Petition, including both the general allegations and Petitioner’s two causes of action.

The first cause of action alleges four distinct violations of CEQA. First, it asserts that Respondent/Real parties used an improper baseline, thereby misrepresenting the impact that anticipated mining volumes will have on Bay sediment, mineral resources, fish and wildlife, public trust resources, and coastal erosion. (See Pet. ¶¶ 83-88.) This is a generalized allegation of impacts that may occur somewhere in the Bay due to the volume of sand extraction; there is no factual allegation concerning an impact in this County or even throughout the Bay; no mention of offloading (the source of impact mentioned in paragraph 68’s venue allegation); or connection of any of the harms identified here to offloading (as opposed to sand extraction).

Petitioner then alleges that CEQA required a new EIR, not a Supplemental EIR, due to changed circumstances and new evidence suggesting greater environmental effects, which the SEIR failed to consider (including harms to the bay floor, and thus to wildlife “that use the mining lease areas,” and reduced shoreline resilience). (Petition, ¶¶ 89-97.) These harms are, as pleaded, tied to sand extraction and the areas where extraction occurred and, as to shoreline resilience, do not specify any location or assert harms to shoreline resilience throughout the bay. (Elsewhere, however, shoreline resilience is specifically tied to coastlines that are “adjacent” to mining (id., ¶¶ 15-17), which Petitioners acknowledge does not occur in parts of the Bay in Alameda County or adjacent to our coastline.) Nor are there allegations tying any harms to offloading, here or elsewhere.

Petitioner then alleges the SEIR’s failure to accurately analyze direct and indirect impacts, failure to mitigate or avoid significant harmful project impacts, and failure to consider a

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV176380: IN THE MATTER OF: SAN FRANCISCO BAYKEEPER, INC., A CALIFORNIA NON-PROFIT CORPORATION 06/29/2026 Hearing on Motion to Transfer filed by Lind Marine Inc. (Respondent) + CRS# 967496245934 in Department 25 reasonable range of project alternatives.) (Id., ¶¶ 98-105; 106-110; 111-114.) These aspects of the CEQA claim rely solely upon the factual allegations discussed above, which identify impacts of sand extraction, not offloading. (Id.) The identified harms to mineral resources, coastal erosion, and bay sediment are, based upon other allegations, not present in this County. While Petitioner also alleges impacts on particular species of wildlife, no allegations tie these species to County or assert this harm occurs throughout the Bay.

Finally, Petitioner claims a violation of CEQA due to the failure to adequately respond to comments. (Pet., ¶¶ 115-116.) None of the comments provided, however, address the Tidewater site, offloading impacts, or mention impacts in Alameda County. (Marsch Decl., Ex. H.) Attorney Marsh also attests that he reviewed all public comments on the SEIR and found “no claim or evidence presented by members of the public or other agencies of injury arising in Alameda County or resulting from the Tidewater offloading facility or other mining operations within Alameda County.” (Marsh Decl., ¶ 7.)

The Court’s conclusion of Petitioner’s second cause of action, for violation of the Public Trust Doctrine, is the same. As pleaded, this cause of action concerns the use of “the Bay’s sand,” which is a public trust resource, and alleges the volume of anticipated sand mining as the basis for this claim. (Pet. ¶¶ 117-137, particularly 117, 125, 128, 132-134, 137a-c.) Thus, it is reasonably construed to assert harms flowing from sand extraction, not offloading. The allegations of this claim do not identify harms specifically occurring in Alameda County or assert that identified harms occurred throughout the Bay.

While each of Petitioner’s causes of action incorporates by reference general allegations and paragraph 68’s bare assertion regarding impacts in Alameda County, the causes of action themselves are more specific. They identify numerous, specific impacts that relate to sand extraction, including coastline erosion, injury to the Bay floor and sediment, and impacts upon wildlife inhabiting Bay waters, including in the lease areas. Conspicuously absent is any allegation that any of these specific harms occurred in Alameda County, perhaps because they would appear to be principally, if not exclusively, related to extraction, which did not occur in or near this County.

Also conspicuously absent is any mention of the actual impact of offloading, cited by the SEIR itself, which is the impact on air quality. As such, Petitioner’s allegations, however ambiguous, cannot reasonably be stretched to encompass unstated impacts in Alameda County.

There is no dispute that offloading is essential to the mining leases or that offloading activities and their impacts were considered by the Commission to be within the scope of the SEIR analysis. (Marsh Decl., Exh. F [Final SEIR] at p. ES-2, ES-6. See also fn. 1 [stating inclusion for sake of consistency with 2012 EIR].) Indeed, the SEIR considered potential impacts of “the transportation of sand by the Applicants to offloading facilities and the sand mining offloading process using barges,” but not the impacts of “operations at offloading facilities.” (Id., Ex. G (Final SEIR), p. 2-6.) The Court need not reach the significance of this distinction, however,

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV176380: IN THE MATTER OF: SAN FRANCISCO BAYKEEPER, INC., A CALIFORNIA NON-PROFIT CORPORATION 06/29/2026 Hearing on Motion to Transfer filed by Lind Marine Inc. (Respondent) + CRS# 967496245934 in Department 25 because the Petition lacks factual allegations concerning an actual impact flowing from offloading impacts at Tidewater.

Petitioners argue they have alleged impacts to the “entirety of the Bay,” but – as noted – no such allegation appears in the Petition. The Court has no reason to doubt Petitioner’s assertion that the Bay is a “dynamic waterbody that touches nine different counties” with an “equally dynamic and complex ecosystem composed of numerous fish and wildlife species” and “sand and sediment” that are “all in constant motion irrespective of county lines,” and thus, the asserted harms are not localized to mining areas. (Opp. Mem. at pp. 8-9.) However, these factual assertions cannot be considered unless they are pleaded in the Petition.

Petitioners’ venue allegation also asserts that Baykeeper members “who reside in Alameda County” may suffer “recreational and fishing impacts.” (Pet., ¶ 68.) This can only establish venue in this County if some of recreational and fishing impacts are alleged to occur in Alameda County. (Code Civ. Proc., § 393, subd. (b).) The Petition does not allege any facts concerning harms to recreational interests or fishing in this County. Allowing a plaintiff to establish venue solely by virtue of his residency, not based upon where s/he actually suffered the harm, would allow an “end run” around section 393(b).

Even construing paragraph 68’s fishing and recreation allegations together with all of the other allegations of the Petition, the remaining allegations identify no impact in this County on fishing (e.g., by a reduction of species that are found in and may legally be caught within the County) or recreation. They merely identify fishing as a recognized “use” under the Public Trust Doctrine and assert that the loss of coastal sand will impact fishing. (Pet., ¶¶ 52, 57, 62, 137.c.) Nor does the Petition allege impacts to recreation or fishing “throughout the entire Bay.” Thus, injury to fishing and recreational interests in Alameda County is not alleged, directly or indirectly.

Considering all of the allegations of the Petition, together, the causes of action cannot fairly be construed to have arisen in Alameda County. As a result, venue does not lie here under section 393(b).

Respondent and Real Parties also assert that paragraph 68 is a sham allegation and was not pleaded based upon a good faith desire to redress injuries sustained in Alameda County. (MPA ISP Mot. at pp. 14-15.) Together, the lack of comments on the SEIR concerning any injury to Alameda County, the failure to identify offloading impacts in the SEIR, and the history of prior litigation, cast some doubt on the legitimacy of Petitioner’s venue allegations. (See McClung v. Watt (1922) 190 Cal. 155, 159–60 [observing, “[t]he sufficiency of the complaint and the good faith of the pleader are not to be denied, upon a motion for a change of venue, unless, at first blush, it can be clearly seen and said that the allegations of fact concerning the corporation defendant are in no wise related to the facts alleged and relied upon as a cause of action against the defendant” (emphasis added), but concluding that the allegations in that case were not so “radically insufficient” to constitute sham pleadings for purposes of venue].)

It is a close

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV176380: IN THE MATTER OF: SAN FRANCISCO BAYKEEPER, INC., A CALIFORNIA NON-PROFIT CORPORATION 06/29/2026 Hearing on Motion to Transfer filed by Lind Marine Inc. (Respondent) + CRS# 967496245934 in Department 25 question whether Petitioner’s venue allegations “clearly are in no wise related to the facts alleged and relied upon” in Petitioner’s causes of action, such that they constitute sham allegations. However, in light of the Court’s other findings, above, the Court need not reach this issue.

In view of the foregoing, the Court also declines to reach the argument regarding failure to exhaust remedies.

ORDER. The motion to transfer venue is GRANTED. All required costs and fees of transfer shall be paid by Petitioner within five days of the date on which Respondent serves Plaintiff with notice of this order. (See Code Civ. Proc., § 396, subd. (e).) Upon payment of the applicable costs and fees, the Clerk shall transmit the pleadings and papers herein to the Clerk of the Superior Court of San Francisco County and shall mail notice to the parties pursuant to Code of Civil Procedure, § 399.

The Initial Case Management Conference scheduled for 06/29/2026 is vacated.

Compliance Hearing transfer is scheduled for 08/05/2026 at 04:00 PM in Department 25 at Rene C. Davidson Courthouse.

The tentative ruling has been contested.

Department 25 invites you to attend the hearing via ZoomGov. The Judicial Officer requests that all participants appear on camera and log in using their full first and last name. You may test your Zoom connection in advance at https://zoom.us/test.

**Join ZoomGov Meeting** https://alameda-courts-cagov.zoomgov.com/j/16180661142?pwd=fOgE7gNTEc7ctHa7adWeBVHFzEJ9Wm.1

**Meeting ID:** 161 8066 1142 **Passcode:** 1801