Archive for March, 2014


In a short opinion, the Second Appellate District affirmed the Coastal Commission’s decision concerning a development permit issued by the County of San Luis Obispo in the case Bowman v. California Coastal Commission, Case No. B243015 (March 18, 2014). The Coastal Commission refused to lift a public access agreement contained in a coastal development permit when applicants applied for a second coastal development permit for the same property.

The subject property is approximately 400 acres in San Luis Obispo County and was owned by Walton Emmick. At the time of purchase, the property contained a single family residence and barn—both of which were in disrepair and unusable. The property includes about one mile of shoreline along noncontiguous parcels.

Emmick applied to the County for a coastal development permit (CDP) in 2002 for improvements to the house, installation of a septic system, and connection to an existing well. Emmick began to work on the residence pursuant to the construction permits, but the County told him to stop until the CDP was issued.

Emmick passed away in 2003, and the SDS Family Trust succeeded to the property. Subsequently, in 2004, the County approved the coastal development permit (CDP-1) for which Emmick had originally applied. The CPD was conditioned upon an offer to dedicate a lateral easement for public access along the shorefront portion of the property. The notice of approval informed the SDS Family Trust that it had 14 days to appeal.

No appeal was filed, but nine months later, the SDS Family Trust applied to the county for another coastal development permit (CDP-2). The permit application was for construction of a new barn to replace the existing one, which had collapsed. The application also included the same scope of work requested and approved under CPD-1 along with a request for the removal of the easement condition imposed by CPD-1. The county approved the CDP-2 application despite finding that the SDS Family Trust was in violation of the CDP-1 lateral easement condition because work had begun on the residence but no offer to dedicate had been recorded.

The Sierra Club, the Surfrider Foundation, and two coastal commissioners appealed the county’s approval of the CDP-2 application to the Coastal Commission. The appealing parties argued the county improperly eliminated a valid, existing easement which had been imposed by CDP-1. The Coastal Commission agreed with the appealing parties. The SDS Family Trust responded by filing a petition for writ of mandate, but the trial court ruled for the Commission. The trust appealed.

On appeal, the SDS Family Trust attempted to argue the access easement condition violated the Nollan and Dolan regulatory takings test. The appellate court did not reach this argument though. Instead, the appellate court pointed out that the county made a quasi-judicial determination when it granted CDP-1 and no one appealed that determination, so it became final. Therefore, the SDS Family Trust could not collaterally attack the county’s determination in a second permit proceeding after failing to exercise its administrative remedies during the first proceeding.

The SDS Family Trust then attempted to argue that they were a dissatisfied permit applicant who could simply “walk away” from the permit and apply for a new one. But the appellate court invoked the doctrine of collateral estoppel to reject this and similar arguments. The appellate court noted the purpose of collateral estoppel is to protect the finality of judgments and administrative decisions; so again, a party dissatisfied with an administrative decision must challenge that decision directly on appeal. The SDS Family Trust could walk away from the permit, but it could not walk away from County’s final determination that the lateral easement condition was a valid condition for granting the proposed permit.

This case serves as an important reminder for CEQA practitioners. While the CEQA statute is clear about the requirement that parties exhaust administrative remedies before seeking a court’s relief, this requirement applies wherever an administrative tribunal renders a quasi-judicial opinion.

Update: Court of Appeal reverses decision on rehearing.

Marvin M. Brandt Revocable Trust v. United States, ___ U.S. ___ (2014) No. 12-1173, March 10, 2014.

In a case that piqued the interest of many throughout the West, including property owners and outdoor enthusiasts, the U.S. Supreme Court sided with a Wyoming property owner in a dispute over an abandoned railroad right of way.  The case presented the question of what happens to a railroad’s right of way granted under the General Railroad Right-of-Way Act of 1875 when the railroad abandons it: does it go to the Government or to the private party who acquired the land underlying the right of way?  Reversing the 10th Circuit Court of Appeals, the Supreme Court ruled that the railroad’s abandoned right of way reverts to the private landowner.

The Supreme Court’s opinion begins with some extensive history regarding the settlement of the West and the federal land grant policies led to the present predicament. The opinion explained that to encourage early settlement and development of the West, Congress first passed acts giving railroad companies fee title to vast stretches of land (the land acquired by the Central Pacific – later the Southern Pacific – and the Union Pacific in exchange for their construction of the Transcontinental Railroad is a good example), but that following public complaints about the amount of land being given away, it passed the General Railroad Right–of–Way Act of 1875 to provide railroad companies only “right[s] of way through the public lands of the United States.”  I.e., just the right to use the land – not fee title. One such right of way, granted to a railroad company in 1908, crosses land that the United States later conveyed to the Brandt family in a 1976 land patent. That patent specifically stated that the land was granted subject to the railroad’s rights in the 1875 Act, but it did not specify what would occur if the railroad later relinquished those rights. Years later, a successor railroad abandoned the right of way with federal approval. In 2006, the Government sought a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way, including the stretch that crossed the land conveyed in the 1976 Brandt patent.

Petitioners contested the claim, asserting that the right of way was a mere easement that was extinguished when the railroad abandoned it, so that Brandt now enjoyed full title to his land without the burden of the easement. The Government countered that the 1875 Act granted the railroad something more than a “mere easement,” and that the United States retained a reversionary interest in that land once the railroad abandoned it.

The 10th Circuit Court of Appeals sided with the Government. Although it acknowledged a division among lower courts regarding the nature of the Government’s interest, if any, in abandoned General Railroad Right-of-Way Act of 1875 rights of way, it concluded based on 10th Circuit precedent that the United States had retained an “implied reversionary interest” in the right of way, which then vested in the United States when the right of way was relinquished. The Supreme Court reversed.

The Supreme  Court rejected the Government’s position, in large part because the Government had won when it argued the opposite before the Supreme Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States (1942) 315 U.S. 262. There, the Government argued, and the Supreme Court agreed, that the 1875 Act granted nothing more than an easement to the railroad companies. Under Great Northern, therefore, the railroad had only an easement in its right of way over the land.

The Supreme  Court  then explained that, when the United States patented the parcel to the Brandt family in 1976, it conveyed fee simple title to that land, “subject to those rights for railroad purposes” that had been granted to the railroad. The United States did not reserve to itself any interest in the right of way in that patent.

After determining that the interest granted to the railroad was nothing more than an easement and that the U.S. retained no interest, the Court noted that the essential elements of easement, including what happens when they cease to be used, are well settled as a matter of property law.  Applying basic common law principles, the Court determined that when the railroad abandoned the right of way, the easement referred to in the Brandt patent terminated. Brandt’s land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the parcel.

Justice Sotomayor issued a dissenting opinion arguing that the majority improperly brushed off pre- Great Northern precedent suggesting that the United States retained a reversionary interest in railroad rights of way and, to the extent the majority regarded Great Northern as having abrogated those precedents, it placed on Great Northern more weight than that case could bear.  She also claimed that the majority erred by relying on basic common law principles without recognizing that railroad rights of way were not always governed by the ordinary common-law regime.

Justice Sotomayor also pointed out the negative practical implications of the majority’s opinion, claiming that it “undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation.  And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”

Echoing Justice Sotomayor, many rails-to-trails organizations have described the decision as a serious set-back to the hiking and bicycling trails system envisioned by Congress when it enacted the National Trails System Improvements Act of 1988; however, the decision appears to apply only to privately-held land transferred by the United States subject to an existing railroad easement that is subsequently abandoned.  Many thousands of miles of trails along former railroad routes are situated on federal, state or local public lands, or on routes that were originally conveyed to the railroad companies in fee, rather than as easement. The decision does nothing more than confirm what has for centuries been the law of easements: an easement is a right to use another’s land for a specified purpose, and when the holder of the easement expressly or impliedly abandons its use, the easement no longer encumbers the underlying land.

Continuing the theme of water-related issues in California, the Sacramento County Superior Court, Judge Timothy Frawley presiding, recently addressed litigation concerning the operation of the State Water Project. On March 5, 2014, the court released its rulings in the cases Central Delta Water Agency, et al. v. California Department of Water Resources, et al. (Case No. 34-2010-80000561) and Rosedale-Rio Bravo Water Storage District, et al. v. California Department of Water Resources. (Case No. 34-2010-80000703.) The litigation in these cases involved CEQA challenges brought against an EIR prepared by the Department of Water Resources (“DWR”) for the project known as the “Monterey Amendments to the State Water Project Contracts (Including Kern Water Bank Transfer) and Associated Actions as Part of a Settlement Agreement.”

Background and History

The history of the challenged EIR stretches back to the 1960’s and the inception of the State Water Project (“SWP”). The SWP was structured so that its costs for operation are borne primarily by various public water agencies (“SWP contractors”) that contract with the state to receive SWP water. The obligations for sale, delivery, and use of SWP water were set forth in long-term contracts with these SWP contractors. As many may know, the original long-term contracts were overly optimistic when estimating the water supply which would be available at full build-out of the SWP. The original contracts anticipated that 4.2 million acre-feet of water would be available per year, but actual, reliable water supply from the SWP is now in the vicinity of 2 to 2.5 million acre-feet annually. So by the early 1990’s, the SWP was increasingly unable to fulfill demand for water deliveries.

In response to shortages in the SWP supply exacerbated by drought, DWR and the SWP contractors engaged in extensive negotiations in the city of Monterey, California. The negotiations resulted in substantial revisions to the SWP long-term water supply contracts. These revisions became known as the “Monterey Amendment.”

The Monterey Amendments established six primary objectives: (1) resolve conflicts and disputes among SWP contractors regarding water allocations and financial responsibilities for SWP operations; (2) restructure and clarify SWP water allocation procedures and delivery during times of shortage and surplus; (3) reduce financial pressures on agricultural contractors in times of drought and supply reductions; (4) adjust the SWP’s financial rate structure to more closely match revenue needs; (5) facilitate water management practices and water transfers that improve reliability and flexibility of SWP water supplies in conjunction with local supplies; and (6) resolve legal and institutional issues related to storage of SWP water in Kern County groundwater basins, and in other areas.

The Monterey Amendments included numerous  elements to achieve these objectives. For example, the so-called “urban preference” was eliminated in favor of reductions in water deliveries borne proportionately by urban and agricultural users, water rates were restructured, and various other changes were made to the way the SWP is administered. Relevant to the litigation here, the Monterey Amendment also required DWR to transfer the “Kern Water Bank” property to the Kern County Water Agency.

In 1995 the Central Coast Water Authority, as lead agency, completed and certified a final EIR (“Monterey Agreement EIR”) studying the environmental impacts of the extensive amendments to the SWP water supply contracts.  Soon after, the Planning and Conservation League and others challenged the sufficiency of this EIR (the “PCL litigation”). Among other allegations the plaintiffs argued that DWR should have been the lead agency for the purposes of preparing the EIR, and that the EIR inadequately defined the “project”. The PCL litigation reached the appellate court, where the court determined that DWR should have functioned as lead agency, and that the EIR was defective in at least one respect. The court ordered that DWR prepare a new EIR.

Following remand, the parties to the PCL litigation entered into a settlement agreement (the “Settlement Agreement”) governing how the new EIR would be prepared. The parties agreed that the proposed project to be analyzed in the new EIR would be defined during the scoping process, but at a minimum, would analyze the Monterey Amendment and certain additional terms agreed to in the Settlement Agreement. With this agreed scope the project became known as the “Monterey Plus” project, and the new EIR for the project was referred to as the “Monterey Plus EIR.”

DWR issued a draft EIR in October 2007 and certified a final EIR for the Monterey Plus project on February 1, 2010. The project studied in the EIR included all of the objectives and elements of the Monterey Amendment, along with the objectives and elements of the Settlement Agreement. The baseline used in the EIR was the continued operation of the SWP in accordance with the pre-Monterey Amendment water supply contracts. This means the EIR used 1995 as the baseline year to measure existing conditions. The EIR also provided analyses using baselines adjusted for 2003 and 2020 to account for changes in water supply and transfers resulting from decisions unrelated to the project. Since the proposed project was continued operation of the SWP under the Monterey Agreement, the EIR identified the no project alternative as a return of operation to the pre-Monterey Amendment water supply contracts. To account for uncertainty in determining what, exactly, these pre-amendment conditions would look like, the EIR analyzed four different “no project” scenarios.

The EIR determined that the project did not have any significant impacts from 1996 to 2003, but might cause some potentially significant impacts during the period from 2003 to 2020. These impacts could include impacts to biological, cultural, and paleontological resources resulting from groundwater recharge activities. The EIR also identified potentially significant growth-inducing impacts resulting from the delivery of additional SWP water to urban contractors. Even though DWR incorporated mitigation measures for these impacts, they could remain potentially significant. The EIR also determined that the project may result in potentially significant impacts due to additional pumping from the Delta and from the construction of additional ponds on the Kern Water Bank lands. But DWR incorporated mitigation measures which it determined would reduce these impacts to less-than-significant levels.

DWR recorded a notice of determination regarding its decision to adopt findings and determinations, a statement of overriding considerations, and a mitigation, monitoring, and reporting program for the project. On June 3, 2010, DWR then filed a return on peremptory writ of mandate, requesting that the trial court discharge the 2003 writ of mandate that had required the new EIR. The very same day, Petitioners Central Delta Water Agency, South Delta Water Agency, and various environmental organizations led by the Center for Biological Diversity, filed a petition for writ of mandate challenging the sufficiency of DWR’s new Monterey Plus EIR under CEQA. The Petitioners also challenged the validity of the agreement to transfer the Kern Water Bank property from DWR to the Kern County Water Agency.  At the same time, the Rosedale-Rio Bravo Water Storage District and the Buena Vista Water Storage District, each of which operates a water bank system in the vicinity of the Kern Water Bank, filed a separate CEQA action, focusing narrowly on issues of operation of the Kern Water Bank.

The Central Delta Water Agency Litigation

For the most part, the trial court rejected the claims brought by the petitioners. Notable for CEQA practitioners, the trial court declined to consider two of Petitioner’s arguments at the outset for failure to adequately summarize the record. Specifically, Petitioners cited to only a single page of the Monterey Plus EIR’s lengthy discussion regarding the issue of “paper water” (a term used to describe contractual water that may not actually exist as “wet water,” e.g., contractual water that may be beyond the contracting supplier’s ability to actually supply it) and failed to adequately summarize the evidence in the record addressing the Project’s climate change impacts.

Petitioners’ first primary challenge involved the project description element of the Monterey Plus EIR. Petitioners alleged the project description did not comply with CEQA’s requirements that it be accurate and stable. As noted above, the EIR described the Project as continued operation of the SWP under the Monterey Amendment, for which no permits or approvals are required. Petitioners argued this description of the project was confusing because it was unclear whether operation under the Monterey Amendment was the proposed project, or actually, the status quo. Petitioners submitted that this description concealed the true scope of the project. The court rejected this argument, but not without noting the unique factual circumstances of the case, a recurring theme throughout the trial court’s opinion.

The trial court stated that the litigation presented an unusual circumstance for a CEQA case because the proposed project was actually a standardized contract amendment, previously approved and executed. The court pointed out that DWR was operating the SWP pursuant to the Monterey Amendment while the new EIR was being prepared. Therefore, the Monterey Plus EIR accurately described the result of carrying out the proposed project being studied: continued operation of the SWP pursuant to the Monterey Amendment. Petitioners pointed out that this approach essentially resulted in an EIR analyzing the impacts of a decision that had already been made.

The court agreed, generally, with the assertion made by Petitioners. Under CEQA, the approach taken by DWR to prepare the Monterey Plus EIR should usually not be allowed. But in this case, the parties to the Settlement Agreement, certified by the court, approved preparation of a remedial EIR to analyze the impacts of the Monterey Amendments. Any argument that the court should have invalidated the Monterey Amendment approvals, rather than allowing DWR to continue operating under them, was time-barred. The time for petitioners to make this objection was when the Settlement Agreement was approved and the writ issued. Considering these unique circumstances, the trial court could not find that DWR abused its discretion by describing the project as continued operation of the SWP under the Monterey Amendment and Settlement Agreement.

Petitioners next argued the baseline selected in the EIR was flawed because the baseline omitted provisions of water supply contracts eliminated by the Monterey Amendment. The trial court quickly dispensed with this and other arguments attacking the baseline in the EIR. The EIR studied both existing baselines for years 1995 and 2003, and a future baseline at year 2020 to provide a complete assessment of the Monterey Amendment’s impacts. This choice of baseline was therefore supported by substantial evidence and entirely reasonable under the circumstances. Additionally, DWR’s approach was consistent with the Court of Appeal’s opinion in the PCL litigation. So again, considering the unique circumstances, DWR did not abuse its discretion by preparing an EIR in accordance with the prior Settlement Agreement and court order.

Similarly, the trial court found the range of alternatives analyzed in the EIR reasonable under the circumstances, despite Petitioners’ assertion that the EIR did not evaluate a true no-project alternative. As noted above, DWR analyzed four different no-project scenarios in the EIR. DWR adopted this approach because it identified a good faith disagreement as to what exactly conditions prior to the Monterey Amendments would look like. DWR had continued to operate the SWP with the Monterey Amendments in place even after litigation was initiated following approval of the amendments in 1995 (and it is 2014 at the time of this entry—not an insignificant passage of time). The trial court found this approach to analyzing a no-project alternative to be reasonable. The EIR provided sufficient information to the public and decision makers regarding the impacts of various potential scenarios under pre-Monterey Amendment conditions.

The trial court also rejected an argument CEQA practitioners frequently encounter: deferral of mitigation. The petitioners argued DWR improperly deferred mitigation by finding that impacts on Delta aquatic life would be reduced to a less-than-significant level after compliance with existing and future regulatory permits and processes. However, the court declared this was not a situation where an agency relied on references to compliance with existing laws to avoid compliance with CEQA. The Monterey Plus EIR conducted the appropriate impact analysis and determined that the project could have significant impacts on the delta. But DWR operations would be subordinate to existing laws and regulatory requirements including applicable SWRCB Orders, Army Corps of Engineers permits, Biological Opinions, endangered species take permits, habitat protection plants, etc. The court determined it was appropriate for DWR to rely on commitment to this existing regulatory scheme to mitigate the Project’s impacts. In fact, the court suggested it may not have even been feasible for DWR to propose additional mitigation measures separate from the existing regulatory scheme.

Finally, the court upheld the DWR’s analysis of the project’s growth-inducing impacts in the Monterey Plus EIR. The EIR concluded that the Project could potentially induce growth. DWR identified contractors that could receive additional water, calculated the amount of additional water that could be made available, and estimated the number of additional residents this new water could support. The EIR also discussed potential economic development resulting from this potential increase in population. Petitioners argued the EIR should have conducted additional, site-specific analyses of the Project’s potential growth inducing impacts, but the court found the generalized level of detail in DWR’s analysis sufficient under the circumstances and compliant with CEQA.

The Kern Water Bank Issue

The Central Delta Water Agency petitioners also challenged the portion of the Monterey Plus EIR dealing with the transfer of the Kern Water Bank property. As part of the Monterey Amendment, the Kern Water Bank property would be transferred from DWR to the Kern County Water Agency for the express purpose of developing and operating a groundwater bank.

The Central Delta Water Agency petitioners argued that the EIR failed to sufficiently describe or analyze the Water Bank’s future operations. Instead, the petitioners argued the analysis was limited to the historical operation of the water bank during the unusually wet period from 1995 to 2004. The trial court agreed the EIR insufficiently analyzed operation of the water bank, as the court explained in further detail in its Rosedale opinion.

The Rosedale-Rio Bravo Litigation

The Rosedale-Rio Bravo Water Storage District petitioners argued that the Monterey Plus EIR failed to analyze the use and operation (as opposed to merely the transfer) of the Kern Water Bank as a component of the project. Specifically, the Rosedale petitioners argued the EIR failed to adequately discuss, analyze, and mitigate potential hydrology and water quality impacts associated with the use and operation of the water bank. The trial court agreed, noting the defects in the EIR could be traced to its incomplete description of the project. The trial court pointed out that the EIR described this portion of the project as including only the transfer of the property. But the record unequivocally demonstrated that the project included not just the transfer, but also the “construction, operation and maintenance of the Kern Water Bank.”

The trial court concluded that the omission of relevant information regarding the use and operations of the Kern Water Bank was prejudicial. This omission precluded informed decision-making and informed public participation, as analysis of potential impacts associated with operation of the water bank was not included in the EIR. On this narrow ground, the Court granted the petitions in both the Rosedale and Central Delta Water Agency cases.

Conclusion

The court has ordered an additional hearing to be noticed by the parties, to discuss “an appropriate remedy for the CEQA violation,” presumably pursuant to Public Resources Code Section 21168.9(b).  This CEQA statute encourages courts to fashion remedies no broader than necessary to cure violations, i.e., any remedy “shall include only those mandates which are necessary to achieve compliance with [CEQA] and only those specific project activities in noncompliance with [CEQA].”

Here, the court identified violations in only a narrow area of the Monterey Plus EIR dealing with the Kern Water Bank. It seems reasonable that DWR could argue for, and the court would accept, a narrow remedy upholding the majority of the Monterey Plus EIR while requiring additional, focused analysis on the operation of the Kern Water Bank.

In response to the unprecedented drought the State is facing in 2014, the California Legislature recently enacted emergency drought legislation. The two measures, SB 103 and SB 104, received bipartisan support in both the Senate and Assembly before being signed into law by Governor Jerry Brown on Saturday, March 1, 2014.

The bills allocate substantial funds, approximately $687.4 million, to support drought relief in drought-afflicted communities throughout the State. The dispersion of more than $500 million in existing water bond funding will be expedited for local projects already planned or under way. Examples of these projects include improvement of storm water capture, expanded use of recycled water, enhanced groundwater management and recharge, and expanded water conservation. Other funds, including revenue from the AB 32 cap-and-trade auctions, will also be made available for drought-relief efforts through provisions in SB 103 and SB 104.

The bills include various other provisions beyond simple monetary relief. For example, sanctions have been enhanced for certain conduct, like illegal diversion of water, during drought years. The bills also direct the California Department of Public Health to adopt new groundwater replenishment regulations by July 1, 2014. This leaves only four months for the department to draft and adopt new regulations—a tall order for any agency engaging in rulemaking bound to impact many interests. And in California under current conditions, no topic is likely to be much more controversial than water supply.  After all, in the West, water is what we fight over.