The First Appellate District held that tribal sovereign immunity bars a quiet title action to establish a public easement for coastal access on property owned by an Indian tribe. Self v. Cher-Ae Heights Indian Community, 60 Cal. App. 5th 209 (2021).
The Cher-Ae Heights Indian Community of the Trinidad Rancheria is a federally recognized
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
The Fifth District Court of Appeal found multiple defects in a Kern County EIR for a proposed ordinance streamlining the permitting process for new oil and gas wells. King and Gardiner Farms v. County Kern 45 Cal.App.5th 814 (2020).
The published portions of the Court’s 150-page opinion held the EIR: (1) impermissibly deferred formulation and implementation of mitigation measures addressing significant impacts to water supplies, and did not adequately discuss the effectiveness of those measures; (2) failed to properly mitigate farmland conversation impacts due to inappropriate reliance on agricultural conversation easements as offsetting mitigation; and (3) improperly applied a single threshold for determining the significance of the project’s noise impacts.
The Ordinance
Kern County approved an ordinance to streamline the permitting process for new oil and gas wells under which all such activities would require a permit involving, at minimum, a ministerial conformity review. This ministerial permit review process incorporated mitigation measures identified in the EIR certified by the County, which estimated that 2,697 new producing oil and gas wells would be drilled annually from 2013 through 2040, and 2,221 old wells would be capped and abandoned each year.
Water Supply Impacts
The appellate court concluded that mitigation measures to address water supply impacts — including requiring oil industry users to work together to develop and implement a plan to reduce water use — inappropriately deferred formulation of the measures or delayed their implementation. The EIR did not commit the County itself to the measures, improperly relying on unidentified third parties who might or might not implement them at some unknown point in the future.
Continue Reading EIR Improperly Deferred Formulation and Implementation of Mitigation Measures for New Oil and Gas Drilling
The State of Hawaii Land Use Commission’s reversion of 1,060 acres from a conditional urban land use classification to the prior agricultural use classification was not an unconstitutional taking because the landowner could still reap economic benefits from the property, the reclassification did not substantially affect the overall valuation or any potential sales, and the landowner should have anticipated reversion for failure to satisfy certain conditions. Bridge Aina Le’a, LLC v. State of Hawaii Land Use Commission, 950 F.3d 610 (2020).
In 1989, the Commission approved the then-owner’s request to convert 1,060 acres of largely vacant and barren, rocky lava-flow land from an agricultural to an urban use classification to accommodate development of a mixed residential community. Twenty-two years later, following numerous unfulfilled representations by various landowners concerning development of the land, the Commission ordered the land’s reversion. The Commission specifically found that the owners had failed to comply, and were unlikely to comply, with a condition of the changed classification requiring completion of 385 affordable housing units.
Property owner Bridge Aina Le’a, LLC sued the Commission alleging, among other things, that the reversion constituted an unconstitutional taking. The U.S. Court of Appeals for the Ninth Circuit analyzed the claim under the separate Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978) takings tests.
Continue Reading Reclassification of Land From Urban to Agricultural Did Not Result in Unconstitutional Regulatory Taking
A zoning ordinance providing for expedited oil and gas permitting where owners of the mineral estate cooperate with surface owners did not grant surface owners so much control as to offend the mineral owners’ due process. Nor did disparate treatment of mineral owner permittees violate equal protection where County had legitimate objective of encouraging cooperation
When imposing a school impact fee on residential development, a district need not separately analyze particular subtypes of projects; the authorizing statutes simply require a reasonable relationship between the need for the school facilities and the type of development project — in this case, residential. Tanimura & Antle Fresh Foods v. Salinas Union High School
The County of San Diego violated the Subdivision Map Act by approving residential development of land restricted to agricultural use under the Williamson Act when the development was neither closely related to nor necessary for agricultural use. Cleveland Nat. Forest Foundation v. County of San Diego, 37 Cal. App. 5th 1021 (2019).
Genesee Properties,
An EIR’s project description may identify alternative development schemes proposed for a single project, and the agency may approve a modified version of the project that incorporates elements of one of the alternatives reviewed in the EIR. South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321.
Plaintiffs
The Federal Court of Appeals for the Ninth Circuit recently affirmed a district court order requiring that the National Marine Fisheries Service, the Corps of Engineers, and the Bureau of Reclamation conduct spill operations and monitoring at dams and related facilities in the Federal Columbia River Power System in order to protect migrating salmon and
A core principle of the California Coastal Act is to maximize public access to the coast, including recreational opportunities in the coastal zone. The Court of Appeal determined that the Coastal Commission acted within its authority in rejecting an amendment to a port master plan as inconsistent with this principle. San Diego Unified Port Dist.