A recent Ninth Circuit decision offers guidance on evaluating connected actions and cumulative impacts under NEPA. The court held that an agency can defer consideration of an action’s cumulative impacts in an EIS when the agency makes clear that it intends to evaluate the cumulative impacts in a later EIS. The court also held that if two related actions have independent utility, they are not connected actions and need not be analyzed in the same EIS. Tinian Women Association v. U.S. Department of the Navy, No. 18-16723 (9th Cir., Sept 18, 2020).

In 2005, the United States and Japan agreed to relocate 8,000 Marines from Okinawa to Guam. To maintain operational and training capacity, the Navy determined that it would need to develop new training facilities in Guam and the Commonwealth of the Northern Mariana Islands (“CNMI”). The Navy issued an EIS (“the Relocation EIS”) and a Supplemental EIS (“SEIS”) that analyzed the troop relocation as well as the development of new training facilities on Guam and Tinian (one of the islands in the CNMI) that would be necessary to accommodate the troop relocation. Around the same time, the Navy began preparing the CNMI Joint Military Training EIS/Overseas EIS (“the CJMT EIS”), which evaluated the development of additional new training complexes on Tinian and Pagan (another island in the CNMI).

The plaintiffs filed a lawsuit challenging the Relocation EIS and SEIS. At the time the lawsuit was filed, the Navy had not yet published a Final CMJT EIS.

Connected Actions. The court rejected the plaintiffs’ argument that the troop relocation and all the new training facilities on the CNMI were connected actions that should have been studied in a single EIS. The court explained that they were not connected actions because although they served some of the same purposes and goals, each action had independent utility (i.e., each action reasonably could be completed without the other). As such, they were not required to be considered in the same EIS.

Cumulative Impacts. The plaintiffs also argued that the Relocation EIS and SEIS should have considered the cumulative impacts of the additional training facilities in the CNMI that were being considered in the CMJT EIS. The court held that it was not improper for the Navy to defer consideration of cumulative impacts to the CMJT EIS: “We have consistently held that agencies can consider the cumulative impacts of actions in a subsequent EIS when the agency has made clear it intends to comply with those requirements and the court can ensure such compliance. . . . By issuing a notice of intent to prepare [the CMJT EIS], the Navy has impliedly promised to consider the cumulative effects of the subsequent action in the future EIS and the Navy should be held to that promise.”

Standing. The plaintiffs asserted that the Navy should have considered alternative locations for the troop relocation beyond Guam and the CNMI. The court held that the plaintiffs lacked standing to raise this claim because it was not redressable by the court. The treaty between the United States and Japan stated that the troops would be relocated from Okinawa to Guam. The court explained that it could not provide the relief sought by the plaintiffs—an order directing the Navy to consider alternative locations—because it would violate separation-of-powers principles by requiring the executive branch to rescind or modify the treaty with Japan.

The State Density Bonus Law, Government Code section 65915, provides the opportunity to develop additional market-rate housing and receive other benefits in exchange for including affordable units in a project.  Governor Newsom recently signed legislation, Assembly Bill 2345, that makes several amendments to the Density Bonus Law, the most significant of which will increase how much additional density a predominately market-rate project can obtain.

Under existing law, a maximum density bonus of 35 percent is available to a project that both complies with “replacement” requirements for any existing dwelling units and restricts at least (1) 20 percent of project units to low-income households, (2) 11 percent of units to very low-income households, or (3) 40 percent of for-sale units to moderate-income households. In other words, a project that achieves any of these affordability levels may include up to 35 percent more units than local law otherwise would allow. All additional units may be offered at market rates.

Under AB 2345, which takes effect on January 1, 2021, the maximum available density bonus for projects not composed exclusively of affordable housing will increase from 35 to 50 percent, where additional affordable units are built.  To receive the top bonus, a project must comply with unit replacement requirements and set aside at least (1) 24 percent of units for low-income households, (2) 15 percent of units for very low-income households, or (3) 44 percent of for-sale units for moderate-income households.  Bonuses between 35 and 50 percent will be granted on a sliding scale, while current affordability requirements to obtain a lesser bonus will remain unchanged.

In recent years, an ever-increasing number of housing projects have relied on the Density Bonus Law. The new legislation will enable developers to produce even more market-rate and affordable units under the law.

Governor Gavin Newsom has issued Executive Order N-80-20, extending through March 31, 2021 Executive Order N-28-20, which allows local governments to impose commercial eviction moratoriums and restrictions for commercial tenants who are unable to pay their rent because of COVID-19.

The governor’s order only addresses commercial evictions (as AB 3308 fully addressed residential evictions through March 2021). Because the governor’s order does not itself establish a statewide commercial eviction moratorium, commercial landlords and tenants should refer to their local government’s eviction protections. We expect local governments to adopt coronavirus commercial eviction protections, as permitted by the governor’s order, in the coming days.

San Francisco Mayor’s Supplement to the Commercial Eviction Moratorium

On September 29, 2020, San Francisco Mayor London Breed issued the Twenty-Eighth Supplement to Mayoral Proclamation Declaring the Existence of a Local Emergency, dated February 25, 2020. The latest proclamation extends the existing commercial eviction moratorium to November 30, 2020, and prohibits evictions for late rent payments due from March 17, 2020, through November 30, 2020. The proclamation also clarifies that no missed rent is due until the expiration of the commercial eviction moratorium. The moratorium may be extended by the mayor for two months at a time, but not beyond the expiration of the governor’s executive order.

The latest proclamation also narrows the application of the commercial eviction protections. Formula retail tenants (as defined by Section 303.1 of the San Francisco Planning Code), that is, tenants with 11 or more retail stores in the world, are not eligible for protection under the commercial eviction moratorium.

Also, landlords that own less than 25,000 square feet of rentable space in a building can seek exemption from the ordinance. Such landlords may evict a tenant due to nonpayment of rent if the landlord can demonstrate that the inability to evict would create a significant financial hardship for the landlord.

Aaron Peskin of the San Francisco Board of Supervisors said, “The Mayor’s approach has been remarkably successful for San Francisco at large, and now it’s incumbent upon us to do everything we can to ensure small businesses survive this pandemic. For me and my colleagues who are fighting to revive our neighborhood commercial corridors, we now have some breathing room to ensure that everyone recovers.”

The Ninth Circuit Court of Appeals held that a U.S. Forest Service plan for commercial logging of some 4,700 acres of fire-damaged Mendocino National Forest could not reasonably be interpreted as falling within a NEPA categorical exclusion for “road repair and maintenance.” EPIC v Carlson, 968 F.3d 985 (9th Cir. 2020).

The 2018 Ranch Fire burned more than 400,000 acres in Northern California, including almost 300,000 acres in the Mendocino National Forest. After the fire, the Forest Service approved the Ranch Fire Roadside Hazard Tree Project, authorizing the Service to solicit bids from private logging companies for the right to fell and remove large fire-damaged trees up to 200 feet from either side of roads in the forest. In total, the project authorized logging of millions of board feet of timber on nearly 4,700 acres of National Forest land. Rather than preparing an environmental assessment or environmental impact statement for the project, the Forest Service relied on a NEPA categorical exclusion for road repair and maintenance in 36 C.F.R. §220.6(d)(4).

As of November 2019, logging had begun in two areas of the project and the Forest Service had finalized bidding on a third area. Plaintiff, an environmental organization, sought an injunction in federal district court, which was denied. The Ninth Circuit reversed, finding plaintiff had established a likelihood of success on the merits of its claim that the project did not qualify as road maintenance and repair.

The appellate court reasoned that, although the felling of dangerous dead or dying trees right next to the road came within the scope of “repair and maintenance,” many of the trees encompassed by the project (including large, partially burned “merchantable” trees located 150 feet or more from any road) posed no imminent hazard and would not come close to the nearest road even if they fell directly towards it. The “repair and maintenance” categorical exclusion could not reasonably be interpreted to authorize a project that allowed commercial logging of large trees up to 200 feet away from either side of hundreds of miles of Forest Service roads.

The Ninth Circuit held that a 2012 Environmental Impact Statement that provided a programmatic-level analysis for management of lands in the Alaska National Petroleum Reserve could also be used as the site-specific analysis for oil and gas lease sales. Northern Alaska Environmental Center v. U.S. Department of Interior, No.19-35008 (9th Cir., July 9, 2020).

The National Petroleum Reserve-Alaska covers 23.6 million acres of public land, which includes habitat for polar bears, grizzly bears, gray wolves, moose, caribou, and dozens of species of migratory birds. Under the National Petroleum Reserve Protection Act, the Secretary of the Interior has authority to permit oil and gas exploration, leasing, and development.

In 2012, the Bureau of Land Management published a combined Integrated Activity Plan and Environment Impact Statement (“2012 EIS”) designed to determine the appropriate management for all BLM-managed lands in the Reserve. The 2012 EIS analyzed five alternative proposals, including different options for the percentage of lands that would be made available for oil and gas leasing.

In 2017, BLM entered into a lease with ConocoPhillips for approximate 80,000 acres of land. Plaintiffs sued, claiming BLM had conducted the 2017 lease transaction without complying with NEPA.

The Court of Appeal disagreed with plaintiff’s core claim that a single environmental document could not serve as a programmatic EIS for a broad-scale land management plan and also as a site-specific EIS for an oil and gas lease sale. The court observed that a single “federal action” for purposes of NEPA can be both broad-scale and site-specific, and can be evaluated at both of those levels in a single EIS.

Applying this principle, the court reviewed the scope of the 2012 EIS, which stated both that it was designed to determine the appropriate management of all BLM-managed lands in the Reserve and that it would fulfill NEPA requirements for the first oil and gas lease sale. As to future lease sales, the EIS stated that “[p]rior to conducting each additional sale, the agency would conduct a determination of the existing NEPA documentation’s adequacy” and could decide administratively that the analysis was adequate for a second or subsequent sale.

The court determined that this language in the 2012 EIS regarding future NEPA requirements provided reasonable notice that its intended scope encompassed the actual lease sales as well as programmatic-level analysis of overall management. It also deferred to BLM’s “reasonable position” that the 2012 EIS could serve as the EIS for the 2017 ConocoPhillips lease sale. Based on this conclusion, the court held that plaintiff’s claim that BLM failed to take a sufficiently hard look at the potential environmental impacts of the 2017 lease sale was barred by the statute of limitations.

The Sixth District Court of Appeal held that a medical marijuana dispensary could recover its marijuana plants seized by law enforcement, finding that violation of the ordinance did not render medical marijuana plants “contraband” per se and subject to seizure.  Granny Purps, Inc. v County of Santa Cruz, 54 Cal.App.5th 1 (2020).

Under established caselaw, local governments may by zoning ordinance prohibit medical marijuana dispensaries within their jurisdiction.  In this case, the County prohibited cultivation of more than 99 medical marijuana plants anywhere within the county limits. Citing violation of this ordinance, local law enforcement seized approximately 2,000 medical marijuana plants from a dispensary.

The court held that the County was required to return the seized plants, reasoning that a local ordinance restricting cultivation of medical marijuana plants does not change the legal status of medical marijuana under state criminal law (nor could it, as any attempt to do so would be preempted).  Possession of medical marijuana by personnel qualified under state law is not a crime. Thus, marijuana possessed for medical purposes in compliance with state standards is not contraband and therefore not subject to seizure. The court noted that although the concept that marijuana is not contraband (e.g., not illegal under state law in certain circumstances) is relatively new, local governments are bound by state law and cannot withhold property legally possessed under state law.

Where a county ordinance allowed for exercise of discretion in some circumstances regarding issuance of well construction permits, such permits could not categorically be classified as ministerial and hence exempt from CEQA review. Protecting Our Water and Environmental Resources v County of Stanislaus, No. S251709 (Cal. Supr. Ct., Aug. 27, 2020).

Stanislaus County adopted an ordinance which categorically classified the issuance of all well construction permits as ministerial projects under CEQA unless the county health officer granted a variance. Plaintiffs filed an action alleging that the County had been improperly approving well construction permits without performing CEQA review. Plaintiffs asserted that such permit issuance decisions were discretionary projects because the County could either deny the permit or require project modifications to address environmental concerns as a condition of permit approval.

Under CEQA, purely ministerial projects are exempt from environmental review. Ministerial projects are those in which the agency determines whether applicable statutes, ordinances, regulations, or other fixed standards have been satisfied. These determinations must involve little to no personal judgment by the public official as to the wisdom or manner of carrying out the project. Agencies may classify ministerial projects on either a categorical or individual basis. The CEQA guidelines provide that an agency may categorically classify approvals as ministerial only when the authority to issue them is solely ministerial. Where a project involves an approval that contains elements of both a ministerial action and a discretionary action, the project must be deemed discretionary.

The California Supreme Court determined that while many of the County’s well permitting decisions were ministerial, the ordinance authorizing the issuance of these permits made at least some of the County’s decisions on such permits discretionary. The Court found that a standard under the ordinance regarding the permissible distance between a well and a potential contamination source plainly authorized the county to exercise judgment or deliberation when deciding to approve or disapprove the permit.  Although the standard set out distances generally considered adequate, it made clear that individualized judgment could be required, stating that an “adequate horizontal distance” may depend on “[m]any variables;” that “[n]o set separation distance is adequate and reasonable for all conditions;” and that “[l]ocal conditions may require greater separation distances.”

The Court interpreted these minimum distances to be a starting point, beyond which the ordinance conferred “significant discretion on the county health officer to deviate from the general standards, allowing either relaxed or heightened requirements depending on the circumstances.” The permit approval process thus allowed the County to shape a well construction project in response to concerns that could be identified through environmental review. Because the process, at least as to some permits, required exercise of independent judgment, it could not be categorically classified as ministerial, and the blanket classification of all such permits as ministerial under CEQA was unlawful.

The Third Appellate District determined that Placer County met relevant statutory requirements when it partially abandoned public easement rights in a road originally intended to be used only for emergency access and public transit vehicles that residents of the area had been using as an unauthorized short cut between two neighboring residential subdivisions. Martis Camp Community Association v County of Placer, No. C087759 (Third. Dist., Aug 1, 2020).


The road at the center of the dispute connects Martis Camp, a private gated community adjacent to the Northstar ski resort development, and the Retreat at Northstar, a residential development next to Martis Camp located within the Northstar resort itself.

In 2003, Placer County adopted the Martis Valley Community Plan, which provided that a road connecting Martis Camp and the Retreat would be restricted to public transit and emergency access only. The EIRs for the Martis Camp and Retreat developments, approved two years later, also envisioned that the road would be restricted to these uses. Despite these restrictions, several years after the road was constructed, Martis Camp residents began using it as a short cut through the Retreat community to Northstar village.

By 2014, from 100 to 250 private vehicles were using the road on a daily basis, and it was estimated that once Martis Camp was built out, traffic could triple.  After various efforts to stop the unauthorized use of the road failed, Retreat property owners requested that the County abandon public road easement rights in the road.  Following a series of public hearings, the Board of Supervisors approved a partial abandonment, thereby restricting use of the road to Retreat property owners and emergency and public transit vehicles only, consistent with the uses described and analyzed in the Community Plan and the EIRs for the two developments.

The Martis Camp homeowners’ association and some individual property owners (the “Martis Camp homeowners”) filed suit to challenge the County’s action, claiming it violated the statutory requirements for abandonment of a public road; that it impaired their abutter’s rights to access the road giving rise to an inverse condemnation claim; and that the Board  had violated both the Brown Act and CEQA when it approved the abandonment.  The trial court ruled for the County on each of these claims and the Martis Camp homeowners appealed.

The Court of Appeal’s Decision

Abandonment of a Public Road.   The court of appeal rejected the Martis Camp homeowners’ claim that the County’s decision violated the statutory requirements for the abandonment of a public road, explaining that under the Streets and Highways Code, a county is authorized to vacate all or part of a street, highway, or public service easement where it makes two findings — first, that the road is unnecessary for present or prospective public use, and second, that the abandonment is in the public interest. Continue Reading County May Abandon Public Easement Rights to Prevent Unauthorized Use of Road

The City of Los Angeles was required to offer to sell condemned property back to its original owner because the property had not been used and the City Council did not adopt a resolution reauthorizing the public use until 19 days past the 10-year statutory deadline. Rutgard v. City of Los Angeles, No. B297655 (2nd Dist., July 30, 2020).

On May 29, 2007, the Los Angeles City Council enacted an ordinance authorizing condemnation of a two-story building with 8,300 square feet of commercial space. In settlement of the ensuing condemnation action, the City paid the property owner $2.5 million for the property; however, due to an economic downturn, the City never developed the property as planned. On June 23, 2017, the City Council enacted an ordinance reauthorizing the use of the property for a constituent service center, which was approved by the Mayor on June 27, 2017.

To ensure that public entities do not use their eminent domain power to acquire property and hold onto it indefinitely without putting it to its intended public use, the Legislature enacted Code of Civil Procedure section 1245.245. This section provides that if the acquired property has not been developed for its intended public use within 10 years of the resolution’s adoption, the City must adopt another resolution reauthorizing its intended public use. If the City fails to adopt the reauthorization resolution within 10 years, it is required to offer to sell the property to the owner from which it was acquired.

The court determined that the 10-year deadline looks to the dates on which the initial and reauthorization ordinances were “finally adopted.” The court found the term “final adoption” did not mean an ordinance’s effective date, and that the final adoption date is determined by local law. Under the City’s charter, an ordinance is “finally adopted” once it has passed the City Council and either (1) approved by the Mayor or (2) if not approved, passed by a second, override vote of the City Council.

Under this interpretation, the 2007 Ordinance was finally adopted when the Mayor approved the City Council-enacted initial resolution of necessity for the property on June 8, 2007, and the 2017 Ordinance was finally adopted when the Mayor approved the City Council-enacted reauthorization resolution on June 27, 2017.

Because the City finally adopted its initial and reauthorization resolutions 19 days past the 10-year deadline, section 1245.245 required the City to offer to sell the property back to its original owner at present market value.

The California Supreme Court ruled that water rates and other local utility charges are considered “taxes” for the purpose of California Constitution Article II, Section 9 and therefore exempt from the referendum process. Wilde v. City of Dunsmuir, No. S252915 (Cal. Supr. Ct., August 2, 2020).

The City of Dunsmuir adopted new water rates to finance the replacement of the City’s aging water storage tank and water mains. Plaintiff attempted to challenge the rates using multiple strategies, including submitting a referendum petition. However, the City refused to place plaintiff’s petition on the ballot, reasoning that (1) rate setting was an administrative act not subject to referendum, and (2) Proposition 218, which provides detailed requirements for imposing or increasing government exactions, does not grant voters the right to challenge rates by referenda. Plaintiff filed suit to compel the City to place the referendum on the ballot.

An appellate court ruled in favor of plaintiff, reasoning that the provisions added by Proposition 218 define fees for water services as a “property-related fee,” rather than a “tax.” The appellate court determined that water rates should also be considered fees for the purpose of California Constitution Article II, Section 9, which exempts tax measures from referendum.

The court rejected the appellate court’s reasoning, holding that a water rate could be a tax for the purposes of the referendum tax exemption and a fee for the purposes of Proposition 218. The court found that Proposition 218’s definitions of taxes and fees were limited in scope and did not alter the definition of a tax for the purposes of the Article II, section 9 exemption. Acknowledging that “tax” has no single-fixed meaning, the court relied on previous decisions holding that municipal services fees and charges constitute taxes in the context of other constitutional provisions. The court reasoned that the intent of the referendum tax exemption was to ensure that the referendum process does not disrupt essential government functions. As such, the exemption should be interpreted to apply to the water rate increase because cities depend on such charges to provide water service to residents and to maintain essential infrastructure. Thus, while municipal water rates and other local utility charges may be challenged by other means, they are not subject to referendum.