Neighbors’ Personal Stake In Preserving Local Parking Regulations Precluded Finding Of Public Interest

Neighbors who were suing to maintain existing neighborhood parking regulations were pursuing their own personal interests and did not qualify for the public interest exception from the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Because their Brown Act claim had no merit, it was properly dismissed as an anti-SLAPP suit. Cruz v. City of Culver City, No. B265690 (2nd Dist. Aug. 8, 2016).

Learning that the City Council of Culver City was considering a church’s request to change neighborhood parking restrictions, neighbors sued claiming the Council’s action violated the Brown Act because the process had been initiated during the public comment period rather than as a noticed agenda item. In response to the City’s motion to dismiss the action under the anti-SLAPP statute, plaintiffs argued they were subject to the public interest exception from the statute because their action concerned a matter affecting the public interest.

The court held that the Council’s discussion at the hearing and its decision to place the parking item on a future agenda, were activities arising from free speech, making the anti-SLAPP law applicable. The court also rejected plaintiffs’ claim that they were subject to the public interest exception to the anti-SLAPP statute. The public interest exception applies only to actions brought solely in the public interest, and plaintiffs’ action did not qualify because “[k]eeping the parking restrictions at status quo would directly benefit plaintiffs . . . [who] sought personal relief in the form of a halt to any attempts by the church to undo the long-standing parking restrictions.”

Because the anti-SLAPP statute applied, plaintiffs had the burden of showing it was probable they would prevail on the merits. They failed to satisfy this burden. The Brown Act allows a Council to discuss and take action on non-agenda items in three circumstances: (1) the Council may briefly respond to statements or questions from persons exercising their right to publicly testify at a hearing; (2) the Council may ask a question for clarification, make a brief announcement, or make a brief report on its own activities; and (3) the Council may ask staff to provide factual information, report back at a later time, or place an item on a future agenda. The Council’s discussion and decision fell within all three exceptions. Accordingly, there was no Brown Act violation, and plaintiffs’ action was properly dismissed under the anti-SLAPP statute.

General Plan’s Size Ranges for Shopping Centers a “Flexible” Policy, Not a Rigid Mandate

The City of Modesto’s General Plan includes a policy providing that certain neighborhoods “should” include a “7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet.” The Fifth District Court of Appeal upheld against challenge the city’s determination that development of an approximately 170,000 square foot shopping center on about 18 acres in one such neighborhood would be consistent with that policy. Naraghi Lakes Neighborhood Preservation Ass’n v. City of Modesto.

Over neighborhood opposition, the city approved a general plan amendment and rezoning to allow construction of the shopping center. In upholding the city’s findings that these actions were consistent with its general plan, the court first stated that the project was compatible with general plan policies aside from its identification of acreage and square footage figures.  The court then deferred to the city’s interpretation of the latter policy as offering “flexible descriptions to provide a basic model or pattern to guide the future development of the applicable neighborhood,” rather than “rigid development mandates.”

The court found this interpretation was supported by the plain language of the general plan, including its use of the permissive word “should” in place of the mandatory “shall.” The record also contained substantial evidence, the court determined, that the city consistently applied the acreage and square footage figures flexibly, as it previously had approved shopping centers larger than the stated ranges.

The court’s decision reinforces existing case law emphasizing the significant discretion a local agency enjoys when considering whether a proposed development is consistent with its general plan.

EIR’s Energy Impacts Analysis Fails To Satisfy CEQA’s Requirements 


In Ukiah Citizens for Safety First v. City of Ukiah, 248 Cal.App.4th 256 (2016) the First District Court of Appeal concluded that the City of Ukiah’s EIR for a proposed Costco failed to satisfy CEQA’s requirements for evaluating energy impacts.

The project involved the construction of a new Costco store and gas station. The city certified the EIR and adopted a statement of overriding considerations and adopted legislation to approve the project entitlements several weeks later.  Ukiah Citizens for Safety First filed a petition for a writ of mandate challenging the EIR and the project approvals on a number of grounds, including that the EIR failed to properly evaluate the project’s energy impacts.

The City’s Energy Impacts Analysis

CEQA provides guidance on energy impacts that only recently has come into focus. Public Resources Code section 21000(b)(3) provides that an EIR must incorporate a statement regarding “mitigation measures proposed to minimize significant effects on the environment, including, but not limited to, measures to reduce the wasteful, inefficient, and unnecessary consumption of energy.” Section 15126.4(a)(1)(C) of the Guidelines provides that: “energy conservation measures, as well as other appropriate mitigation measures, shall be discussed when relevant.” And Appendix F of the Guidelines provides a list of possible energy impacts and potential conservation measures that are intended to assist the lead agency in preparation of an EIR.

In this case, the EIR did not contain a separate discussion of energy impacts, but instead mentioned energy impacts at various points throughout the environmental analysis. For example, the EIR determined that the project could result in a potential increase in electrical and natural gas usage, and it discussed the effects of energy usage with respect to the project’s potential impacts on air quality and greenhouse gas emissions. The EIR concluded that the project “would not exceed existing gas and electric supply or result in wasteful, inefficient, or unnecessary consumption of energy.” In support of this conclusion, the EIR noted that the project would conform to Building Code energy conservation standards, and that the project’s design incorporated several sustainable features.

Ukiah Citizens for Safety First claimed that the EIR failed to provide sufficient information regarding the project’s energy consumption, and generally failed to satisfy Appendix F. The city, Citizens contended, was required to calculate the project’s energy use attributable to project-generated vehicle trips, and to also calculate the project’s energy consumption during construction and operational phases.

The court sided with Citizens and found the EIR’s energy impacts deficient: The analysis failed to calculate the energy impacts of project-related vehicle trips, and relied on compliance with the building code standards to mitigate the project’s construction and operational energy impacts instead of providing a complete evaluation under Appendix F. The court further noted that the city’s reliance on mitigation measures designed to reduce greenhouse gas emissions was insufficient with respect to energy impacts.

The Addendum

The court then considered the effect of an addendum to the EIR the city had prepared to “clarify” its energy impacts analysis in response to a recent appellate court decision.  The court found that the addendum was not part of the administrative record because it was not before the city when the EIR was certified and the project was approved; thus, the addendum could not be considered by the trial court in its consideration of Citizens’ petition. Because the EIR was deficient when it was certified and the city approved the project, the addendum could not retroactively fix the EIR so as to negate Citizens’ claim that the city abused its discretion in approving the project.


The takeaway from Ukiah Citizens for Safety First is this: sizable development projects, and particularly those that may generate significant vehicle trips, should not gloss over Appendix F when discussing potential energy impacts. Failure to identify energy impacts associated with project vehicle trips may be a red flag to project opponents, as would reliance on building or construction standards as mitigation. Project applicants and lead agencies would be well served by evaluating (or at least distinguishing) the potential energy impacts and mitigation measures listed in Appendix F.


Loss of View is Not a Taking, Even in Beverly Hills

The mere loss of a homeowners’ unobstructed view, without any physical intrusion onto their properties, does not constitute a compensable taking. Boxer v. City of Beverly Hills, 246 Cal. App. 4th 1212 (2016).

In 1989, the City planted 31 coastal redwood trees in a park adjacent to Spalding Drive in Beverly Hills. In 2005, nearby homeowners complained to the City that the growing trees had begun to block previously unobstructed views of downtown Los Angeles, the Hollywood Sign, the Griffith Observatory, and other landmarks. They claimed the City had failed to trim and maintain the trees as intended and that further growth would entirely block the views from their property as well as exacerbate an existing fire hazard. The trees were not located on plaintiff homeowners’ properties, nor did plaintiffs allege any physical intrusion, occupation or invasion of, or physical damage to, their properties.

The homeowners brought an inverse condemnation suit against the City of Beverly Hills seeking damages and injunctive relief based on impairment of the views from their backyards. Without a physical intrusion onto their property, the homeowners relied on a theory of “intangible intrusion,” arguing that “because a ‘property owner’s loss of view is an aspect of compensable damage’ in eminent domain cases, the impairment of their views [was] a harm sufficient to support their inverse condemnation claims.”

The court rejected as “simply wrong” the argument that damage to the value of plaintiffs’ properties, such as from an impaired viewshed, establishes a compensable taking. The mere existence of a diminution in the value of the plaintiff’s property does not establish a compensable taking — it is an element of the measure of just compensation when such taking or damaging is otherwise proved.

The court also rejected plaintiffs’ contention that impairment of a view alone can constitute a taking. The court was unpersuaded by several cases addressing compensation for a loss of view because those cases also involved a physical taking of the claimant’s property. Several California cases discuss a “right” to visibility, but impairment of this right by government action was always “tethered to a compensable claim of impaired physical access.” Plaintiffs failed to identify authority for the proposition that a reduction in visibility, per se, required the payment of compensation. Intangible intrusions onto property such as a reduction in view may give rise to an inverse condemnation claim only where there is some burden on the property that is direct, substantial, and peculiar to the property itself.

The court undertook a lengthy discussion of Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal. 4th 507 (2006), in which an advertising company leasing property along a Los Angeles boulevard claimed that palm trees planted by the City along the median reduced the visibility of its billboards. The California Supreme Court rejected the company’s inverse condemnation claim, holding that “impairment to visibility does not, in and of itself, constitute a taking of, or compensable damage to, the property in question.” Impairment of a “visibility right” might warrant compensation, but the company had no such right. The court noted it would be especially difficult to establish a visibility right as against trees planted on City property, since planting trees could be viewed as an application of land-use regulations and police power, including “the government’s well-established prerogative to plant trees on its own property.”

In Boxer, the homeowners attempted to distinguish Regency as concerning “a view of property, rather than a view from property” (emphasis in original). The court found this distinction to be of little consequence in light of the well-established principle of California law that a “landowner does not have a right to an unobstructed view over adjoining property.” As in Regency, the court declined to find the homeowners had a “visibility right,” stating that while private parties or a legislative body could create a right to an unobstructed view, the courts would not imply such a right.

Failure to Discover An Agency’s Approval Of An Exempt Project Does Not Extend The Time To File CEQA Lawsuit

The First District Court of Appeal has ruled that the accrual of a claim that a public agency exemption determination violated CEQA is not postponed by the plaintiff’s failure to discover the violation. Communities for a Better Environment et al. v. Bay Area Air Quality Management District, No. A143634 (1st Dist., July 19, 2016; modified Aug. 10, 2016).

Communities for a Better Environment brought an action against the Bay Area Air Quality Management District challenging  BAAQMD’s determination that its approval of a permit authorizing a rail-to truck transloading facility to switch from loading ethanol to crude oil was exempt from CEQA.

In July 2013, BAAQMD had found its approval was an exempt ministerial action, but did not file a Notice of Exemption.  Two months later, the transloading facility began transloading crude oil.  Over the next few months, BAAQMD modified several conditions of the permit and ultimately issued another permit incorporating the modifications.  CBE subsequently filed its lawsuit against BAAQMD.

During the trial court proceedings, BAAQMD argued that CBE’s petition was time-barred because it was filed more than 180 days after the issuance of the first permit, the time to file suit specified by statute when no Notice of Exemption is filed. CBE responded that a “discovery rule” should apply, which would mean that the limitations period did not begin to run until CBE first became aware of the operational change in January, 2014.  The trial court rejected CBE’s claim and dismissed the case as time-barred because it was filed more than 180 days after BAAQMD’s decision to approve the project.

The court of appeal agreed, holding that a discovery rule cannot be applied to postpone the running of the CEQA’s statutory limitations periods because the specified time periods are dates on which the public is deemed to have constructive notice of a potential CEQA violation.

The court of appeal distinguished the situation from a case decided by the California Supreme Court three decades ago, and a recent court of appeal case, in which the plaintiffs successfully argued a challenge was not time-barred because substantial changes had been made to the project after the initial approval. The court of appeal observed that in both cases the courts determined “that an action accrues on the date a plaintiff knew or reasonably should have known of the project only if no statutory triggering date has occurred.” CBE, however, “offered no theory” demonstrating that the applicable triggering date in the statute did not occur.

The court of appeal held that CBE’s contention that the discovery rule could delay the statutory triggering date ran counter to the general principle that CEQA’s statutes of limitation specify dates a plaintiff is deemed to have constructive notice of a potential CEQA violation. A plaintiff’s lack of actual notice of the violation is irrelevant.  Accordingly, the court of appeal upheld the trial court’s dismissal of CBE’s petition.

The court of appeal’s decision reinforces the strong public interest underlying CEQA’s short statutes of limitation. As the court of appeal stated, a discovery exception could not be read into the statute without violating “‘the Legislature’s clear determination that the public interest is not served unless CEQA challenges are promptly filed and diligently prosecuted.’”


General Plan Sustainability Requirements Doom Wal-Mart Project

Finding a variety of legal errors, including failure to comply with a city policy requiring on-site electricity generation “to the maximum extent feasible,” a court of appeal has overturned the City of Victorville’s approvals for a Wal-Mart project.  Spring Valley Lake Ass’n v. City of Victorville, No. D069442 (4th Dist., June 15, 2016).  The court found:

  1. The project approvals were inconsistent with the City’s general plan;
  2. The environmental impact report’s analysis of greenhouse gas emissions was inadequate;
  3. The city council failed to make findings required by the Subdivision Map Act; and
  4. The city was required to recirculate the EIR due to changes in its air quality and hydrology/water quality analyses.

General Plan.  The court held the project was inconsistent with two sustainability provisions of the city’s general plan.  The first was a program requiring “all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.”  The project did not include any on-site electricity generation; the EIR stated that incorporation of rooftop solar systems would make the project economically infeasible absent significant government credits and incentives, which could not be assured.  The court held this explanation did not constitute substantial evidence that solar power generation or other alternatives (such as wind power, which the EIR did not discuss) were completely infeasible.

The second general plan requirement was a 15% improvement on 2008 Title 24 standards for all new construction.  The EIR showed that the project would “currently” achieve only a 10% improvement, but would comply with new energy efficiency standards at the time of construction, and then would “likely” meet the 15% requirement.  The court held that this, too, was inadequate.

The court agreed with the city that a project need not conform perfectly with each and every general plan policy, but applied the rule that a project is inconsistent with a general plan “if it conflicts with a general plan policy that is fundamental, mandatory, and clear.”  The court held that the city’s on-site electricity generation requirement constituted such a policy, and therefore the city’s finding that the project was consistent with its general plan was not supported by substantial evidence.

EIR Greenhouse Gas Analysis.  The court held the EIR’s GHG emissions analysis was inadequate because it relied in part on the conclusion that the project would achieve the 15% improvement in energy efficiency required by the city’s general plan, whereas the EIR itself stated that the project might not do so.

Subdivision Map Act.  The Map Act requires a city to deny approval of a parcel map if it makes any of seven findings.  These findings are stated in the negative, e.g., “the proposed map is not consistent with applicable general and specific plans….”  In approving the Wal-Mart project, the city did not make findings on these seven topics, reasoning that the findings requirement applied only if the city were denying rather than approving the parcel map.  Citing a 1975 California Attorney General opinion, which had never been overturned by the Legislature, the court held that the city was required to address the seven findings in its approval of the parcel map.

EIR Recirculation.  The city revised four of the DEIR’s analyses in the Final EIR, but determined that the document did not need to be recirculated for further public comment.  As to biology and traffic, the court agreed, but it found significant new information regarding air quality and hydrology/water quality that should have led to recirculation.  The change in the air quality chapter was the addition of the general plan consistency analysis described above. The court stated that because the analysis did not support the finding that the project was consistent with the general plan requirement, and because the public did not have the opportunity to comment, the EIR should have been recirculated.  The hydrology/water quality analysis suffered from a different problem; according to the court, the Final EIR showed a “complete redesign” of the project’s stormwater management plan, and 26 pages of EIR text were replaced with 350 pages of technical reports and a conclusion.  The court held that these revisions deprived the public of a meaningful opportunity to comment.

The Spring Valley Lake case illustrates the difficulties cities and counties face as they use their general plans to promote general sustainability and greenhouse gas reduction goals and later try to implement these in the context of specific development projects.  The case falls in line with other recent appellate decisions — such as those requiring extensive analysis of energy use under CEQA Guidelines Appendix F — demonstrating increased judicial scrutiny of public agencies’ commitments to sustainability.

Public/Private Partnerships: New Guidance on Designating the CEQA Lead Agency

With public/private partnerships becoming more common, a California appellate court has outlined – with a new test – how to determine the CEQA lead agency for a project in which a private entity partners with multiple public agencies. Center for Biological Diversity v. County of San Bernardino (G051058) 4th Dist., May 10, 2016.

Cadiz, Inc. partnered with Santa Margarita Water District, San Bernardino County, and Fenner Valley Mutual Water Company – a private, nonprofit entity Cadiz formed – to pump fresh groundwater from an aquifer below Cadiz’s Mojave Desert property to customers in nearby counties. The purpose of the project was to conserve groundwater and improve water supplies to California communities. The county and water district entered into an agreement designating the water district as the lead agency and the county as a responsible agency for environmental review purposes.

Several environmental organizations challenged the project’s approval, alleging that the water district was improperly designated as the lead agency. They argued that the county, rather than the water district, should have been the lead agency because the county had general governmental powers to approve or exempt the project from the county’s permitting requirements for pumping.

The court of appeal held that the water district was properly designated as the lead agency. Where there is more than one public agency involved in a project, the CEQA Guidelines delineate which should be the lead agency. Section15051 (a) of the Guidelines provides that if a public agency will carry out the project, that agency shall be the lead agency even if the project is located in another agency’s jurisdiction. Subsection (b) states that if a nongovernmental entity will carry out the project, then the public agency with the greatest responsibility for supervising or approving the project as a whole shall be the lead. Subsection (c) provides that if there is more than one public agency that satisfies (b), then the lead agency shall be the one which acts first on the project. And subsection (d) provides that if more than one public agency has a substantial claim to be the lead agency, they may enter into an agreement designating which will serve as lead.

The court found that while the water district hadn’t acted first, it satisfied the other three tests in Guidelines section 15051. Having closely examined the water district’s responsibilities in comparison to Cadiz and the county, the court determined that “[t]he final EIR provide[d] sufficient evidentiary support for the designation of [the water district] as the lead agency based on its cooperative partnership with Cadiz in implementing, carrying out, supervising, and approving the Project as a whole.”

The court cited, among other things, the water district’s responsibilities of obtaining financing; approving design, construction, and project terms; and managing and overseeing the project operation. Although the county had authority over pumping, the court recognized that the project encompassed more than that and that the water district had more authority over the project as a whole. The court also concluded the agreement the water district and county had entered into properly designated the water district as lead agency because an agency need not have an equal or greater claim to be lead agency, but merely a substantial one in order to be designated by agreement. Additionally, the court noted, the lead agency may benefit from a project as long as it remains able to provide the information necessary for environmental review.

The court also provided guidance – in the form of a new test based on section 15051 – for analyzing projects conducted in partnership between a public agency and a nongovernmental entity. It held that, in a public/private partnership, the lead agency may be either “(1) the public agency that is a part of the public/private partnership, or (2) the public agency with the greatest responsibility for supervising or approving the project as a whole.” Citing the evidence in the EIR, the court ruled that the water district was properly designated as the lead agency under either prong of the new test.

This opinion demonstrates the close attention that must be paid to different agencies’ responsibilities when determining the lead agency for a project. It also confirms that an agency with a limited purpose may be designated lead agency on a project if it is “the public agency that shoulders primary responsibility for creating and implementing a project . . . even though other public agencies have a role in approving or realizing it.”


Fish and Wildlife Service Agrees to Deadline for Monarch Butterfly Listing Decision

The U.S. Fish and Wildlife Service has agreed to decide by June 30, 2019, whether to list the monarch butterfly under the Endangered Species Act. The agreement is part of a settlement of a lawsuit by the Center for Biological Diversity and Center for Food Safety that sought to obtain a legally binding deadline for the listing decision. Under the settlement agreement, the agency must propose protection for the monarch, deny protection or assign it to the “candidate” waiting list for protection by the June 2019 deadline.

Long-term declines in the overwintering Eastern population of monarch butterflies are significantly increasing the probability that they may become extinct over the next twenty years according to U.S. Geological Survey and Scripps Institution of Oceanography research published earlier this year. The USGS Study, published in the journal Scientific Reports, found that the Eastern migratory monarch population declined by 84 percent between 1997 and 2015. Based on this information, the study indicated there is a substantial probability – between 11 and 57 percent – of “quasi-extinction” of the species over the next two decades. A quasi-extinct population is one with so few remaining individuals that recovery is effectively impossible — while the remaining numbers may survive for a short time, the population as a whole will inevitably become extinct.

The monarch’s long, multi-generational journey between central Mexico and the summer breeding grounds in the U.S. and southern Canada is celebrated in all three countries, but gives rise to shared management responsibilities. Previously published research indicates that the most effective way to increase monarch butterfly numbers is to focus on the restoration of their breeding habitat in the northern U.S. and southern Canada. The recent population declines have been primarily attributed to the loss of breeding habitat, particularly in the United States. Monarchs depend on several species of milkweed to provide food for developing larvae. Milkweed abundance has declined significantly as a result of a combination of herbicide use, climate change, insecticides (including neonicotinoids) and other factors.

Thoughts on how individuals and the development community can help restore the monarch’s critical habitat are contained in the accompanying article by Perkins lawyer Laura Godfrey Zagar.

How Developers Can Help Save the Monarch Butterfly (and Why They Should)

The monarch butterfly is heading quickly towards extinction for a simple reason: it does not have enough food to eat on its migration path.

Every fourth generation of this remarkable creature undertakes a migration of up to 3,000 miles to warmer climates such as California, Mexico, and the Gulf Coast until it is time to start a new generation in northern ranges. On their long journey they eat only one plant, milkweed, which used to be common and abundant throughout the country. Use of herbicides and elimination of milkweed in landscaping and agricultural fields have undermined the monarch butterfly’s food sources.

The good news is that, in contrast to many endangered species, whose recovery requires extensive and expensive habitat restoration and preservation, the monarch’s path to recovery is relatively straightforward but requires a simple effort of the collective whole throughout the nation: plant milkweed!

Milkweed is easy to grow, is relatively drought tolerant once established, and has a beautiful array of flowers that would fit in well in many landscapes. I can personally attest that milkweed can be grown by the most challenged gardener, as I now have six plants flourishing in our yard. Our milkweed plants are also a main attraction for children visiting our house, who like to check up on their black and yellow striped caterpillar friends. Many nurseries are now stocking milkweed suitable for the local climate, but you can also find them online, including through Annie’s Annuals, and have plants and seeds shipped directly to you.

Why should the development community care about the plight of the monarchs? The U.S. Fish and Wildlife Service just entered into a binding agreement to decide by June 2019 whether to list the species on the Endangered Species Act. The ramifications of a potential listing of the monarch could be significant for projects of all sizes – from the largest infrastructure project to the smallest residential development. The Endangered Species Act is considered the “bulldog” of the environmental laws. It prohibits any person from committing a “take” of a listed species, which is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” While permits are available for incidental take of a listed species, the permitting process can take months and even years to complete, and often requires costly conservation measures to mitigate for potential impacts to a species. Violations of the statute can result in potential criminal and civil penalties. Of greater concern is the highly-protective injunction standard that tips the balance towards conservation of the species, and which is often used by project opponents to stop controversial projects while a lawsuit challenging the project is pending.

Based on the monarch butterflies’ extensive range throughout the nation, the possible consequences on the development community of a listing are vast. There is potential habitat in nearly every region of our country, and take of a monarch butterfly could be likely to occur on a broad range of development projects. The challenges that the wind industry have faced along the long migration path of the endangered whooping crane demonstrate how challenging preservation of a migratory species can be.

Thus, the development community should join the fight and coordinate efforts with federal, state, and local agencies to encourage the cultivation of milkweed needed to support a thriving monarch population along the migration route. Indeed, a memorandum of understanding was just inked by officials from Minnesota, Iowa, Missouri, Kansas, Oklahoma, Texas, and the federal government to improve the monarch habitat along Interstate 35, and to develop a branding campaign to informally name it the “Monarch Highway.”

Options for bettering monarch habitat include the use milkweed in landscaping for parks, housing developments, and commercial areas. Developers could also think more creatively, such as raising awareness of the need for milkweed in the agricultural community or offering free milkweed plants in key communities along the migration route for residents interested in cultivating the plants at their homes. The Fish and Wildlife service has a website with details, photos and information on how developers, individuals and communities can get involved.  While such efforts may not eliminate all the threats to the monarch butterfly, they could go a long way in reversing the downward trend of the species to avoid a listing under the Endangered Species Act.

Quieting title to groundwater rights does not necessarily require quantification of prescriptive losses

The Sixth District Court of Appeal has ruled that a judgment quieting title to overlying rights to groundwater in times of basin surplus does not require quantification of the specific amount of prescriptive rights that may previously have been established against each overlying landowner.  City of Santa Maria v. Adam, et al., No. H041133 (Sixth Dist. June 24, 2016).

As part of a broader groundwater basin adjudication, owners of land overlying the Santa Maria Valley Groundwater Basin sought a judgment quieting title to their overlying water rights as against the City of Santa Maria and other public water appropriators. The trial court had previously found that certain of the appropriators had acquired prescriptive rights to groundwater, in specified quantities, as against the landowner group. However, it rejected the landowners’ argument that the judgment necessarily needed to quantify the prescriptive right  as against each landowner.

The appellate court agreed, concluding that where a groundwater basin is in a condition of surplus, a judgment quieting title need not quantify the proportionate share of prescriptive loss attributable each landowner. The prescriptive rights acquired by each municipal purveyor had been quantified by the trial court. These rights had been acquired during a period several decades earlier during which the groundwater basin had been in a condition of temporary overdraft. At the time plaintiffs sought to quiet title, however, it was undisputed that the basin was in a condition of surplus — i.e., there was sufficient groundwater for the reasonable and beneficial needs of both overlying parties and appropriators.

Under these circumstances, the court concluded, there was no need to quantify the specific prescriptive loss attributable to each overlying user in order to quiet title. The appropriators’ prescriptive rights were established against the aquifer as a whole, not just against the specific landowners’ overlying rights. The fact that such prescriptive rights had been acquired had no practical effect in times of surplus — the landowners would not have been able to enjoin parties from appropriating water, regardless of whether or not those parties had obtained prescriptive rights. It would only be in times of overdraft that prescriptive rights would become pertinent. Because overlying rights are both correlative and based on reasonable and beneficial use, they may change over time. In times of future overdraft, the landowners would be required to determine their proportionate correlative share of basin groundwater rights with other overlying landowners. At that time, the proportionate prescriptive right enforceable against each of the landowners would have to be quantified.  The need did not arise before then.