Plaintiffs do not have to allege prejudice caused by a violation of the Brown Act’s statutory vote reporting requirement to survive a demurrer, and it is improper to render a case moot by taking judicial notice of only one party’s records at the demurrer phase. New Livable California v. Association of Bay Area Governments, No. A159235 (1st Dist., Dec. 18, 2020).

In January 2019, the Association of Bay Area Governments (ABAG) held a board meeting to discuss a regional housing and transportation development proposal. The board members rejected a motion to postpone the vote and approved a motion to call the question by “a show of hands.” ABAG reported the rejection of the motion to postpone in the meeting notes as a “voice vote” and did not report the approval of the motion to call. Plaintiffs challenged these actions as a violation of the Brown Act, which requires the legislative body of local agencies to publicly report the vote or abstention of each member present for an action.

The trial court sustained a demurrer and dismissed the complaint on the ground that plaintiffs had not alleged facts showing legally cognizable prejudice from the alleged violations. The appellate court reversed, noting that a complaint need only state a cause of action under “any legal theory” to survive a demurrer. Whether or not plaintiffs had demonstrated the prejudice necessary for the trial court to declare the board’s action null and void was not dispositive because the complaint was minimally sufficient to a claim for declaratory and injunctive relief and mandamus under sections 54960 and 54960.1 of the Brown Act.

In addition, the court rejected the trial court’s finding that the cause of action became moot after ABAG publicly announced in a May 2019 meeting that it would take roll calls on all non-unanimous votes moving forward. The trial court reached this conclusion based on a judicially noticed “transcribed portion” of the May 2019 meeting submitted by ABAG with its demurrer, but did not allow the parties an opportunity to present extrinsic evidence regarding the meaning of the public announcement. The appellate court rejected this approach, stating that a court ruling on a demurrer may not take judicial notice of the proper interpretation of a document submitted in support of the demurrer. Stated differently, a court cannot use judicial notice to “convert a demurrer into an incomplete evidentiary hearing” where only the demurring party can present evidence.

In Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board, No. A157127, 2020 WL 7706795 (Cal. Ct. App. Dec. 29, 2020), the court ruled that CEQA does not constrain an agency’s authority to enforce the laws it administers, including those authorizing imposition of mitigation requirements.  The court held that, after an EIR for a project has been certified, a regional water quality control board, acting as a responsible agency, can impose  mitigation on the project through waste discharge requirements issued under the Porter-Cologne Water Quality Control Act, even though those measures were not described in the lead agency’s EIR. The court’s decision raises significant questions about the limits on a responsible agency’s ability to depart from CEQA’s requirements when deciding whether and how to approve a project.

The Santa Clara Valley Water District brought this case to challenge the San Francisco Bay Regional Water Quality Control Board’s WDRs for a flood control project on Upper Berryessa Creek near Milpitas and San Jose. The Army Corps of Engineers was responsible for the design and construction of the flood control project, while the District was the project sponsor. In January 2016, the District certified a final EIR, which found that impacts on water resources would be less-than-significant with mitigation.

Pursuant to section 401 of the Clean Water Act, the Corps applied to the Regional Board for a certification that the project would not violate state water quality laws. Facing political pressure to issue the section 401 certification quickly (because the project was needed to protect a soon-to-open BART station and was at risk of losing federal funding if the certification was delayed), the Regional Board agreed to issue the certification in March 2016. The certification stated that the Regional Board, as a responsible agency under CEQA, found that water quality impacts during construction would be reduced to less-than-significant levels with the mitigation measures described in the final EIR. The Regional Board’s certification also stated that the EIR lacked the detail necessary to assess the long-term water quality impacts relating to the project’s design, operation, and maintenance, and that it would later issue WDRs to compensate for those impacts.

In April 2017, the Regional Board issued a WDR order requiring additional mitigation to compensate for the project’s water quality impacts. The WDR order required enhancing 15,000 linear feet or 15 acres of waters of the state, which could be satisfied by one of the District’s other planned projects. The Regional Board purported to comply with CEQA by making findings in the WDR order that it had considered the District’s EIR and determined that, with the addition of the WDR order’s mitigation requirements, the project’s impacts would be less than significant.

Waste Discharge Requirements

The court rejected the District’s claim that the Regional Board lacked authority to issue WDRs under the Porter-Cologne Act because the project would not cause a discharge of waste. The District argued that substances must be useless, unneeded, or discarded to constitute waste for purposes of the Porter-Cologne Act, and that the project’s sedimentation effects did not meet this test. The court ruled that even if the District’s interpretation of the law were correct, the project would result in a discharge of waste: The project’s widening of the creek bed would slow the flow of water and lead to increased sedimentation in the creek; this additional sediment would not be useful or necessary and would require periodic removal.

CEQA

The District also argued that the Regional Board’s failure to impose mitigation through the CEQA process barred it from later imposing mitigation through WDRs issued under the Porter-Cologne Act. The District claimed that if the Regional Board disagreed with the mitigation findings in the EIR, it should have availed itself of the remedies available to a responsible agency that believes an EIR is not adequate, as set forth in CEQA Guidelines section 15096(e): filing a lawsuit within 30 days, preparing a subsequent EIR if permissible, or assuming the lead agency role. According to the District, the Regional Board, waived any objections to the adequacy of mitigation described in the EIR by failing to take any of these actions.

The court ruled, however, that the Regional Board had independent authority to impose mitigation through WDRs pursuant to the Porter-Cologne Act, citing Public Resources Code section 21174, which provides that CEQA does not limit an agency’s power to administer or enforce any other law. This, the court held, means that CEQA’s requirements cannot prevent the Regional Board from exercising its independent authority under the Porter-Cologne Act to require mitigation to protect water quality.

This ruling rests on a shaky foundation. CEQA requires that a responsible agency rely on the EIR or negative declaration prepared by the lead agency rather than preparing its own environmental document. Consistent with this rule, the Regional Board was required to submit comments to the District when the District was preparing the EIR to ensure any water quality impacts of the project, and mitigation for any such impacts, would be examined in the District’s EIR before it was certified. Here, the Regional Board failed to do so. Instead, over a year after the EIR was certified, the Regional Board adopted new mitigation without evaluating it under CEQA.

While it is true that CEQA does not limit or restrict a regional water board’s authority under the Porter-Cologne Act, it is equally true that the Porter-Cologne Act does not override a regional water board’s mandatory duty to comply with CEQA when approving a project. Here, nothing in CEQA prevented the Regional Board from exercising its authority to impose the mitigation measures it ultimately insisted were necessary, and nothing in the Porter-Cologne Act prevented the Regional Board from complying with CEQA before doing so.

In 2018, the CEQA Guideline which defines the term “mitigation” was amended to add “conservation easements” to the list of measures that can provide “compensatory” mitigation for an environmental impact. Guideline §15370(e). The amendment was intended to resolve a debate about whether conservation easements over off-site farmland can provide a means to mitigate not only the cumulative and indirect impacts of converting farmland to other uses, but also the direct impact of the loss of the farmland on the project site.

In a recent court of appeal decision, King & Gardiner Farms v County of Kern (2020) 45 CA5th 814, the court held that a measure requiring conservation easements over off-site farmland would not provide adequate mitigation for the loss of farmland that would result from the project.  The court reasoned that conservation easements do not compensate for the impact of converting farmland to another use because they do not create new farmland to offset the loss of the converted farmland.

Because the EIR in King & Gardiner was certified before Guideline §15370(e) was amended to add conservation easements to its list of potential mitigation measures, the court did not consider the effect of the amendment.  Nevertheless, the court’s ruling that off-site conservation easements do not provide effective mitigation for the loss of farmland converted to another use casts doubt on whether public agencies may rely on Guideline §15370(e) to find that they do.

Mitigation is considered effective under CEQA if it will “minimize” or “substantially lessen” an environmental impact.  The court in King & Gardiner ruled that conservation easements do not offset or otherwise reduce the impact of developing farmland.  While Guideline §15370(e) lists conservation easements as a potential mitigation measure, it does not explain how a conservation easement might minimize or substantially lessen the impact of the loss of farmland.  The absence of such an explanation could make it difficult for public agencies to justify requiring conservation easements to provide mitigation given the ruling in King & Gardiner.

An overview of the relevant background and a more detailed analysis of use of conservation easements as mitigation is available here.

Complete physical dispossession of a property is not a prerequisite to an award of damages after a condemnation proceeding is abandoned—moving from the property in reliance on the order granting the agency possession is sufficient. San Joaquin Regional Transit District v. Superior Court, No. C084755 (3rd Dist., Dec. 1, 2020)

In 2010, the San Joaquin Regional Transit District filed an action to condemn property in Stockton owned by Sardee Industries on which Sardee operated a manufacturing facility. In response, Sardee began expanding its operations in Lisle, Illinois and moving projects and equipment there. In April 2011, the court entered an order that conveyed legal possession of the entire parcel to the District but allowed Sardee to temporarily occupy the southern portion. By March 2012, Sardee had only a few machines in Stockton that were packed and ready to be shipped to Illinois. The District abandoned its condemnation action in April 2012.

Code of Civil Procedure section 1268.620 allows recovery of damages incurred “after the defendant moves from property in compliance with an order or agreement for possession or in reasonable contemplation of its taking.” If the proceeding for a taking is dismissed for any reason, the court must order the plaintiff to deliver possession of the property and award damages proximately caused by the dismissal of the proceeding.

The court rejected the District’s argument that the statutory phrase “after the defendant moves from the property” implies that the defendant must completely vacate the property to receive damages. The court distinguished a prior case in which the court declined to award damages based on preliminary development plans that were cancelled in response to an eminent domain proceeding that was eventually abandoned. Unlike Sardee, which had moved most of its equipment and acquired additional property, the owner did not incur relocation costs prior to the government’s abandonment of the condemnation proceeding. In addition, the court referenced the plain language of the statute, which only states that the party must “move”—not that it must be “physically dispossessed.”

The court also rejected the District’s argument that Sardee had not “moved” under the statute because it had exclusive rights to occupy a portion of the property and continued to operate there. The court reasoned that Sardee had effectively “moved” because it had already shipped most of its equipment to Illinois and the District had taken physical possession of the northern portion of the parcel. Despite its presence on the property Sardee was entitled to compensation because it “did more than just prepare” to move and had almost finished by the time the District abandoned the condemnation.

Another court of appeal has held that local special taxes adopted by a citizen-sponsored initiative do not require two-thirds voter approval.  City of Fresno v. Fresno Building Healthy Communities, No. F080264. (5th Dist., Dec. 17, 2020).

In 2018, Fresno voters approved Measure P, a citizen-sponsored initiative that imposed a tax to fund improvements and programs related to parks.  Relying on California Propositions 13 (1978) and 218 (1996), the Howard Jarvis Taxpayer Association contended that Measure P was invalid because it had not been enacted by two-thirds of the voters.

Agreeing with the First District’s opinion in City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, the Fifth District Court of Appeal upheld Measure P.  It rejected the Association’s arguments, which the trial court had found persuasive, that some statements in a prior California Supreme Court case supported requiring two-thirds voter approval.  The Fifth District agreed with the First District that the referenced statements only recognized the two-thirds voter requirement in Proposition 13, and did not address the question whether that requirement applies to citizen-sponsored initiatives.  Like the First District, the Fifth District ruled that California Supreme Court precedent mandated a conclusion that the provisions of Propositions 13 and 218 imposing requirements on cities, counties, special districts and other local governmental entities were to be interpreted as applying only to councils, boards and other representative bodies, not the electorate.

As determined in those prior cases, there is nothing in either Proposition 13 or Proposition 218 that implicitly overruled the power of initiative to enact laws by simple majority vote. Moreover, while voters are bound by the substantive limitations applicable to legislative actions taken by boards and councils, they are not bound by procedural requirements such as a two-thirds vote requirement.  Finally, the Fifth District also rejected the Association’s argument that because the Elections Code allows councils and boards to adopt citizen-sponsored initiatives outright rather than putting them to a vote, failing to require a supermajority vote would “create a playground for mischief.”  The court refused to address this hypothetical scenario, observing that the Associations’ concern should be addressed to the Legislature, not the courts.

The court reversed judgments on the pleadings that had been granted by the trial court in related cases concerning Measure P, and ordered the trial court to enter judgments upholding the measure.

A court of appeal ruled that provisions of the California Constitution requiring a supermajority vote for special taxes imposed by local government do not apply to a special tax enacted by local initiative.  City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, 51 Cal. App. 5th 703 (2020).

In 2018, San Francisco voters approved Proposition C, a citizen-sponsored initiative, with an affirmative vote of 61.34% of those who voted on the measure.  Proposition C authorized the City to collect additional business taxes to be placed in a dedicated fund and used solely for specified homeless services, including housing programs, mental health services, prevention programs and hygiene programs. Relying on California Propositions 13 (1978) and 218 (1996), business and taxpayer associations contended that Proposition C was invalid because it had not been enacted by two-thirds of the voters.

The court rejected the associations’ arguments and upheld Proposition C. It relied heavily on California Supreme Court precedent holding that the two-thirds majority vote requirement of Proposition 13 did not apply to a statewide special tax adopted by initiative, and that the requirement of Proposition 218 that taxes be approved at a general election likewise did not apply to a general tax enacted by local initiative. The California Supreme Court’s prior cases had made clear that the provisions of Propositions 13 and 218 imposing requirements on cities, counties, special districts and other local governmental entities were to be interpreted as applying only to councils, boards and other representative bodies, not the electorate.  As determined in those prior cases, there is nothing in either Proposition 13 or Proposition 218 that impliedly overruled the power of initiative to enact laws by simple majority vote. Moreover, while voters are bound by the substantive limitations applicable to legislative actions taken by boards and councils, they are not bound by procedural requirements such as a two-thirds vote requirement.

The associations also contended that the San Francisco charter, which states that initiative measures must be “within the powers conferred upon the Board of Supervisors” precluded the voters from enacting taxes without a supermajority vote.  The court rejected that argument as well, again noting that such procedural requirements do not apply to the voters.  It upheld the trial court’s grant of judgment on the pleadings in favor of the city, concluding that “passage of Proposition C pursuant to a majority vote of the City’s electorate was a valid exercise of the people’s initiative power.”

A Summary of Published Appellate Opinions Involving the California Environmental Quality Act

Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations.

The one California Supreme Court CEQA decision addressed the distinction between discretionary projects and exempt ministerial projects. In Protecting Our Water and Environmental Resources v. County of Stanislaus, the court held that the agency’s issuance of  well permits was discretionary in certain circumstances because the permit approval process required the agency to exercise independent judgment and allowed it to modify a project in response to environmental concerns.

A key theme in several cases, involving both EIRs and negative declarations, was courts’ critical look at the adequacy of mitigation measures. In three cases, the court held that agencies had improperly deferred formulation of mitigation. In one case, the court held that a greenhouse gas mitigation measure allowing for carbon offsets was inadequate because it lacked assurances that the offsets would be effective mitigation and it did not specify objective standards for implementation. In another case, the court held that a mitigation measure requiring oil and gas drillers to develop and implement a plan to reduce their water use improperly deferred formulation and implementation of mitigation and lacked enforceability. The court also ruled that agricultural conservation easements are not adequate mitigation for the loss of farmland because they do not offset that loss or create new farmland. In a third case, the court held inadequate a mitigation measure that required construction monitoring and development of a data recovery excavation program if avoidance of archaeological sites was not possible; the agency had not analyzed whether archaeological sites could be avoided and the mitigation measure did not specify performance criteria for evaluating the feasibility of avoidance.

In a significant decision on administrative records, a court held that a lead agency must save all emails about a project, notwithstanding any contrary records retention policy. The court further held that a lead agency could be compelled to produce potential administrative record documents through discovery.

One court applied the mootness doctrine to dismiss a case where construction of the project was completed during litigation. In that case, the developer did not begin construction in violation of any court orders or in bad faith, and the petitioners waited to seek an injunction until construction was nearly completed.

In a decision that conflicts with holdings from other appellate districts, the Fifth District held that partial decertification of an EIR is never permissible when the EIR has been adjudged inadequate; rather, decertification of the entire EIR is the only remedy. The court also held that even under the rule followed by other courts, partial decertification was not appropriate because the EIR’s defects could not be severed from the statement of overriding considerations that supported the agency’s approval of the project.

The following summaries are intended to identify the key issues in the cases decided in 2020. Each summary is linked to a more detailed post on this site describing the court’s opinion. Continue Reading CEQA YEAR IN REVIEW 2020

A federal agency is not required to prepare an environmental impact statement for an action with uncertain environmental effects if the agency reasonably predicts that the effects will not be significant based on available evidence. American Wild Horse Campaign v. Bernhardt, 963 F.3d 1001 (9th Cir. 2020).

The plaintiffs challenged the Bureau of Land Management’s plan to geld wild male horses as part of its program for managing an overpopulation of wild horses in northeastern Nevada. To comply with NEPA, BLM prepared an environmental assessment and issued a finding of no significant impact. The plaintiffs argued that BLM should have prepared an EIS, citing several of the intensity factors that may require an EIS according to the Council on Environmental Quality’s NEPA regulations in effect at the time. Those regulations required agencies to consider whether an action would have significant impacts based on the action’s context and ten factors regarding the intensity of the action’s effects. The plaintiffs also argued that BLM did not adequately address comments suggesting an alternative of surgical vasectomy. In addition, the plaintiffs claimed that BLM violated the Wild Free-Roaming Horses and Burros Act. The court ruled in favor of BLM on all claims, upholding its gelding plan.

Highly Uncertain Effects. The plaintiffs argued that BLM should have prepared an EIS because the effects of its gelding plan were highly uncertain. The court held that BLM reasonably concluded, based on available evidence, that there were no substantial questions as to whether gelding and releasing horses back into the wild would have a significant effect on the environment. The EA acknowledged that there were few studies on the behavior of geldings released into wild, but it predicted that effects would be insignificant based on existing research addressing the behavior of gelded domesticated and semi-feral horses, the natural social behavior of wild horses, and the effects of castration on other species. The record did not contain any evidence affirmatively showing that releasing geldings into the wild could affect herd behavior. The plaintiffs pointed to a National Academy of Sciences report that concluded the effects of releasing geldings could not be predicted; the court determined that this single report was not sufficient to demonstrate that the effects were highly uncertain. Furthermore, the court held that BLM was not required to wait to take action until it could complete an in-progress study on the effects of gelding wild horses.

Highly Controversial Effects. The court rejected the plaintiffs’ claim that BLM should have prepared an EIS because the effects of the gelding plan were highly controversial. The court explained that there was no controversy because the plaintiffs did not identify any evidence that contradicted the BLM’s findings. The court implied that expert opinions cited by the plaintiffs were not credible because they were not based on the experts’ own studies and they contained speculation unsupported by existing research.

Unique Characteristics. The court rejected the plaintiffs’ argument that BLM should have prepared an EIS because its action was in close proximity to cultural resources, i.e., wild horses. The court held that wild horses are not a cultural resource for purposes of NEPA. The court explained that the Wild Horses Act mandated how agencies should manage wild horses and how the environmental effects of those management actions should be evaluated; this specific statute took precedence over NEPA, which is a general law.

Precedent for Future Actions with Significant Effects. The court held that the gelding plan did not create a precedent for future actions with significant effects, which is another intensity factor that may require an EIS. The court explained that the gelding plan did not establish gelding as an accepted strategy for future population management programs, and it was not the first instance of releasing geldings into the wild.

Response to Comments. The court held that BLM’s failure to respond to comments suggesting surgical vasectomy as an alternative was not arbitrary or capricious. The court explained that evidence in the record, including a BLM guidebook, indicated that the effects of vasectomy and gelding were similarly uncertain. Although BLM did not explicitly respond to the comments about vasectomies, the court held this evidence supported BLM’s decision, and it could therefore discern the reasons for BLM’s rejection of vasectomy as an alternative.

Wild Horses Act. The court ruled that BLM complied with the Wild Horses Act’s requirements to consult with the National Academy of Sciences and other experts. The court held that BLM consulted with the National Academy of Sciences by considering its report on gelding and acknowledging the report’s uncertain conclusions in the EA. In addition, the court held, BLM consulted with scientific experts by accepting public comments, responding to the comments, and addressing their substantive concerns in the EA.

The Court of Appeal upheld a Coastal Commission cease-and-desist order requiring demolition of a seawall and payment of a $1 million penalty by homeowners who performed major reconstruction on their coastal home without notifying the Coastal Commission. 11 Lagunita, LLC v. California Coastal Commission, No. G058436 (4th Dist., Dec. 18, 2020).

In 2015, the Coastal Commission issued a Coastal Development Permit allowing reinforcement of an existing seawall at the base of a 1950’s era Laguna Beach home. The CDP contained a condition stating that the permit would expire and the seawall would have to be removed if the home were “redeveloped in a manner that constitutes new development.” It also provided that questions of intent or interpretation of any condition would be resolved by the Executive Director or the Commission.

In 2016, subsequent owners reinforced the seawall and commenced a significant remodel of the home. The project included demolition of all exterior walls down to the studs, removal and replacement of roofing materials, and reinforcement of the entire framing system. The owners obtained building permits from the city, but did not notify or seek permits from the Coastal Commission.

When Commission staff learned of the work, they sent an enforcement violation letter alleging that new development was occurring on the property in violation of the conditions of the 2015 CDP. The notice stated that the owners would need to apply to the Commission either to remove the seawall or to modify the permit, and asked that all work on the home cease until that occurred. After the owners refused to halt the project, staff initiated cease-and-desist proceedings before the full Commission. Following a lengthy public hearing, the Commission voted unanimously to issue a cease-and-desist order requiring the owners to remove the seawall and imposed a $1 million administrative penalty.

In the owners’ subsequent lawsuit, the Court of Appeal upheld the Coastal Commission’s decisions in all respects. The court found that testimony at the hearing and photographs of the remodel constituted substantial evidence that the owners violated the conditions of the 2015 CDP and supported “a finding that the residence was redeveloped in a manner that constitutes new development by any reasonable definition or understanding of those terms.” The court rejected the owners’ claim that because the city did not consider the work a “major remodel,” they reasonably proceeded with the work without notifying the Commission. The court noted that whether the work constituted a minor or major remodel under the city’s code was irrelevant to the determination of whether it met the definition of “new development” under the Coastal Act, which it plainly did.

The court also upheld the $1 million penalty. The Commission properly determined that the owners had violated the Coastal Act by performing the work without notice to the Commission and the now-unauthorized seawall was illegally limiting public access along the beachfront and causing erosion and other adverse impacts to coastal resources. The $1 million penalty was not unreasonable in light of the gravity of the violation, the cost of enforcement, the owners’ refusal to cease work when originally notified of the violation, and evidence that the owners deliberately sought to avoid Commission review based on the likelihood Commission staff would find it constituted unpermitted new development.

The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act. The FWS adopted the new rule to provide clarity on the exclusion process in light of agency experience and current practices, and to respond to the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), which ruled that decisions not to grant an exclusion—like decisions to grant an exclusion—are subject to judicial review. The rule applies prospectively and only to critical habitat designations by the FWS; designations by the National Marine Fisheries Service will continue to rely on existing rules and policies. Our full analysis of the new regulation is available here.