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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from December, 2012


Physical Solution to Water Overdraft Trumps CEQA

Friday, December 21st, 2012

In a partially published decision, Central Basin Municipal Water District v. Water Replenishment District of Southern California (Dec. 10, 2012) 2012 Cal. App. LEXIS 1244, the Second District Court of Appeal determined that the Water Replenishment District of Southern California’s (WRD) declaration of a “water emergency” in the Central Basin did not constitute a “project” for the purposes of the California Environmental Quality Act (CEQA).  WRD made the “water emergency” declaration pursuant a judgment governing the Central Basin, which empowered WRD to declare a water emergency if certain conditions identified in the judgment were met.  The trial court concluded that CEQA was not applicable to WRD’s action because in making the declaration WRD was not acting as a public agency but instead was acting as an agent of the court pursuant to the terms of the judgment.  The Second District Court of Appeal agreed.

Specifically, the court stated that CEQA was not applicable for two related reasons.  First, the court held that the declaration of a water emergency by itself has no environmental impact and therefore is not a project within the meaning of CEQA.  Petitioners argued that after WRD declared a water emergency, other provisions of the judgment were triggered that had the potential to result in significant environmental impacts.  However, the court concluded that argument was irrelevant because the only role of WRD–the public agency whose conduct was being challenged–was to declare the water emergency; WRD had no control over the terms of the judgment and the impacts that may flow from it.  Second, WRD had no discretion to alter the terms of the Judgment even if it prepared an EIR.  Thus, the court held WRD’s declaration of a “water emergency” must be viewed as ministerial.

Lastly, the court held that even if WRD’s declaration constitutes a project subject to CEQA, CEQA would still not be applicable because “CEQA is trumped by the Physical Solution” set forth in the judgment.  The court explained that the physical solution is an equitable decree designed to implement the constitutional mandate to conserve the waters of the state and to maximize the beneficial use of water.    Therefore, notwithstanding the desires of the parties or their CEQA obligations, the court had power to enforce a physical solution.

Key Point:

CEQA does not apply to actions of the judiciary.  Therefore, agency actions directed by a court should typically be viewed as ministerial actions not subject to CEQA review.

Written By: Tina Thomas and Christopher Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

Property Owner Unsuccessfully Hunts for a Way to Void a Conservation Easement

Friday, December 21st, 2012

On December 11, 2012, the Third District Court of Appeal changed its decision in Wooster v. Department of Fish and Game (Nov. 26, 2012) 2012 Cal. App. LEXIS 1250 from unpublished to published.  In this decision, the court was asked to determine whether Kelly C. Wooster’s property in Calaveras County should be deemed to be free and clear of a conservation easement recorded on the property over 30 years ago that banned hunting.  The court rejected each of Wooster’s arguments.

The conservation easement included a condition requiring CDFG to post no hunting and no trespassing signs on the property.  Wooster argued that CDFG’s failure to comply with the posting condition resulted in CDFG’s forfeiture of the easement.  The court explained that while conditions subsequent contained in an easement can result in forfeiture, mere conditions do not have the same effect.  Here, the court found that for the posting requirement to be reasonably construed as a condition subsequent rather than simply a covenant, there would have to be something more than the inclusion of that requirement in a list of “conditions.”  Wooster failed to present any additional evidence to support his position.  Therefore, the court concluded CDFG did not forfeit the conservation easement by failing to comply with the posting condition.

Next, Wooster argued that he was authorized to rescind the conservation easement due to CDFG’s failure to comply with the posting condition.  The court again disagreed.  The court stated that to hold that a vendor of real property could, for a failure to pay the purchase money or other consideration, repudiate his deed and recover the land, would render real estate titles dangerously uncertain.  For this reason, “the law is that ‘a deed without fraud in its inception … is not void for any failure of consideration,’ period.”

Finally, Wooster argued that the conservation easement could not as a matter of law ban hunting on his property.  First, Wooster argued that the Fish and Game Code provides exclusive rules concerning the taking of game and, therefore, CDFG did not have the jurisdiction to authorize a permanent ban on hunting through a deed or contract.  The court dismissed the argument explaining that “in no way does the Fish and Game Code establish a public policy that forbids the department from accepting a conservation easement for the purpose of creating an area, comparable to a game refuge, in which no hunting is allowed.”

Second, Wooster argued that the Wildlife Conservation Law required that CDFG promote recreation and a permanent ban on hunting was inconsistent with this requirement. However, the court explained that what “Wooster’s argument ignores is the self-evident fact that creating pockets of land in which wildlife can be safe from hunting actually does serve to increase the recreational use of wildlife, including as objects of the sport of hunting.”

Third, Wooster argued that provisions of the Civil Code authorize a property owner to make animals on their land their property by taming or hunting them.  The court found Wooster’s argument meritless explaining that an agreed-upon ban on hunting does not extinguish, destroy, or perpetually abate anyone’s right of ownership.  While Wooster is prohibited from hunting animals pursuant to the conservation easement nothing prohibited him from owning animals on his land.

Fourth, Wooster argued that the statutory scheme authorizing conservation easements did not authorize an easement to ban hunting.  The court again disagreed, stating that “using a conservation easement to ban hunting most certainly does help retain land in [an] unspoiled condition.”

Key Points:

Conservation easements are binding negative easements governed by their specific terms.  Unless expressly limited in duration, a property owner is bound by its lawful terms in perpetuity.

Written By: Tina Thomas and Christopher Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Sacramento Superior Court Says Greenbriar Project in Natomas Can Move Forward

Friday, December 14th, 2012

On December 13, 2012, Judge Timothy M. Frawley of the Sacramento Superior Court upheld the City of Sacramento’s and LAFCO’s 2008 approval of project entitlements and certification of the EIR for the 577-acre Greenbriar development project in Natomas. The City Council and LAFCO voted to approve the project and annex a section of land into the City – near the intersection of Interstate 5 and Highway 99 – to allow development of a 3,500-unit smart growth project that includes a transit stop for the Downtown-Natomas-Airport light-rail extension to Sacramento International Airport. The entitlements include a general plan amendment, pre-zoning, PUD guidelines and schematic plan, an inclusionary housing plan and a financing plan. Petitioners, Environmental Council of Sacramento and Friends of the Swainson’s Hawk, argued that the EIR failed to adequately address toxic air contaminants, flood risks, traffic impacts and impacts to the giant garter snake and Swainson’s hawk. The court rejected all of Petitioners’ arguments and ruled in favor of the City and Real Party in Interest on all causes of action. Thomas Law Group attorneys Tina Thomas, Ashle Crocker and Amy Higuera represented the project applicants throughout the administrative phase and during litigation.

Put on Your Dancing Shoes – Restaurant & Nightclub to Open Soon in Manhattan Beach

Wednesday, December 12th, 2012

In Coastal Defender v. City of Manhattan Beach (Dec. 6, 2012) 2012 Cal. App. Unpub. LEXIS 8919, the Second District Court of Appeal issued an unpublished decision upholding the trial court’s determination that the City of Manhattan Beach correctly concluded a proposed renovation of a restaurant and nightclub was exempt from the California Environmental Quality Act (CEQA) and coastal development permit requirements under the California Coastal Act.  The developer proposed constructing two new outdoor balconies on the second story, extending 18-inches over the sidewalk; installing fully retractable, roll-up windows and doors on the first story at the front of the building; constructing a new basement; and extending the hours of dining, drinking, and dancing on certain days.  In approving the project, the city’s planning commission rejected construction of the balconies and placed a number of conditions on the project including noise reduction measures.  The city council, in turn, approved the project based on the planning commission’s conditions except that it permitted construction of the balconies.  In approving the project, the city council filed a notice of exemption from CEQA and, after the California Coastal Commission concurred, concluded the project was exempt from the requirement to obtain a coastal development permit.

In reaching its holding, the court acknowledged that the California Supreme Court has granted review in a case concerning the proper standard of review to apply to CEQA exemption determinations.  For the purposes of this appeal, the court stated that it would assume that the fair argument standard applies and that the significant effects exception to the exemption applies if substantial evidence in the record supports a fair argument that the project may have a significant effect on the environment.

The court first rejected the petitioners’ argument that the city improperly relied on mitigation measures to conclude the project was exempt from CEQA.  The court acknowledged that the city imposed a number of conditions on the project including:  (1) limiting the operating hours on weeknights; (2) requiring compliance with the city’s noise ordinance and a future group entertainment permit; (3) prohibiting any operable windows on the north, east or west sides of the building; (4) requiring that all doors and windows must remain closed during entertainment or dancing; and (5) requiring that noise from the site must be inaudible beyond 75 feet from the property.  However, the court held that the conditions constituted nothing more than ordinary operating restrictions designed to alleviate noise concerns and did not constitute CEQA mitigation measures for project impacts.   The court also noted that the measures were incorporated into the project to respond to concerns of residents and explained that such collaboration and constructive problem solving should be encouraged rather than discouraged.

Next, the court rejected the petitioners’ argument that construction of the balconies overhanging the sidewalks constituted an “unusual circumstance” triggering an exception to the exemption.  The court found that the petitioners failed to present a fair argument that the balconies may result in a significant effect on the environment.  In reaching this conclusion, the court stated that neither the general aesthetic concerns expressed by a planning commissioner nor the public concerns noted in the city council’s staff report nor the photographs and renderings of the balconies purportedly showing an obstructed view transcend the realm of unsubstantiated fears and speculation so as to constitute substantial evidence of a reasonable possibility that the balconies would create significant visual impacts.

Finally, with respect to the petitioners’ California Coastal Act challenge, the court found that the petitioners failed to exhaust their administrative remedies on several arguments and, therefore rejected those arguments.  The petitioners did exhaust their administrative remedies with respect to their claim that the project increased the restaurant’s permitted occupancy level, and that this increase constituted a change in the intensity or use of the structure within the meaning of section A.96.050 of the local coastal plan, thereby requiring issuance of a coastal development permit.  However, the court found that the petitioners failed to point to evidence in the administrative record compelling the conclusion that the project authorized an increase in the permitted occupancy level.  Therefore, the court rejected this argument.

Written By: Tina Thomas and Christopher Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

County Must Determine if Mining Company has a Vested Right to Expand its Quarry

Wednesday, December 12th, 2012

In an unpublished decision, McMillan v. County of Siskiyou (Nov. 27, 2012) 2012 Cal. App. Unpub. LEXIS 8596, the Third District Court of Appeal on rehearing reversed its initial opinion and required the County of Siskiyou to hold a public adjudicatory proceeding to determine whether Butte Creek Minerals (BCM) has a vested right to continue mining the Timberhitch Quarry.   BCM’s predecessor entity mined the quarry prior to county adoption of a permitting requirement for mining, and prior to enactment of the Surface Mining and Reclamation Act (SMARA) (Pub. Resources Code, § 2770 et seq.).  The court held that these facts constituted a sufficient basis for BCM to assert that it had a vested right to mine at the quarry.

The court also held that pursuant to the diminishing asset doctrine, BCM may have a vested right to expand the quarry.  Generally, a nonconforming land use may continue only if it is similar to the use existing when the land use regulation became effective.  However, applying this rule to mining is problematic because, unlike other uses that operate within an existing structure or boundary, mining anticipates expansion into new areas of the property as the resources are excavated.  In Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 553, the California Supreme Court held that the diminishing asset doctrine creates “an exception to the rule banning expansion of a nonconforming use that is specific to mining enterprises.”  Under the diminishing asset doctrine, “[w]hen there is objective evidence of the owner’s intent to expand a mining operation, and that intent existed at the time of the zoning change, the use may expand into the contemplated area.” (Ibid.)  Therefore, the court found the BCM may have a vested right both to mine and to expand their quarry.

The court found that pursuant to SMARA, the county was required to hold a public adjudicatory hearing to determine if, and to what extent, BCM had a vested right to mine.  The court noted that a number of factual determinations were required by the county in this regard.  Importantly, Public Resources Code section 2770 only permits a vested right to continue if it has not been wholly discontinued for over one year.  While the court acknowledged that evidence suggested the mining operation may have been discontinued in 2002, it was up to the county to consider this question in the first instance.  Therefore, the court was required to reverse its opinion and remand to the county for further proceedings.

Written By: Tina Thomas and Christopher Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Worth Its Salt: NPDES Permit for Desalination Plant Upheld

Wednesday, December 12th, 2012

In Surfrider Foundation v. California Regional Water Quality Control Board (Nov. 30, 2012) 2012 Cal. App. LEXIS 1223, the Fourth District Court of Appeal upheld the trial court’s denial of a petition for writ of mandamus challenging the California Regional Water Quality Control Board’s (Board) issuance of a National Pollutant Discharge Elimination System (NPDES) permit for a desalination facility proposed in San Diego County.  The petitioners argued the Board failed to comply with the requirements of Water Code section 13142.5, subdivision (b), in issuing the NPDES permit, which provides that “[f]or each new or expanded coastal powerplant or other industrial installation using seawater for cooling, heating, or industrial processing, the best available site, design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life.”

Applying the substantial evidence standard of review, the court held that the minimization plan prepared for the NPDES permit comprehensively addressed the requirement that “the best available site, design, technology, and mitigation measures feasible” be used.  The court found that substantial evidence demonstrated that co-locating the desalination facility next to the Encina Power Station reduced intake and mortality to marine life and that a new NPDES permit would be required if the power station ceased operations in the future.  The court also concluded that Water Code section 13142.5 does not preclude the Board from requiring compensatory wetland creation as part of the plan to reduce intake and mortality to marine life.

The court also rejected the petitioners’ claims that several measures proposed in the minimization plan were illusory.  First, the court explained that a comment from a Coastal Commission staff member questioning whether the project could achieve the intake screen velocity required by the NPDES permit did not demonstrate the measure was illusory and that such disagreement during the administrative review process is healthy.  Second, the court concluded that the requirement to use variable frequency drives on the seawater intake pumps was not illusory merely because certain data could not be quantified.  The court found that despite the uncertainties, the evidence demonstrated that the drives would reduce intake and mortality of marine life to some degree.

Next, the court found that the project objective to provide at least 50 million gallons per day of desalinated water at or below the cost of imported water supplies was reasonable.  The court concluded that, in rejecting measures that may otherwise further reduce intake or mortality impacts on marine life, the Board could first consider whether such measures were feasible in light of the project objectives.  The court also determined that the Board could rely on the feasibility analysis included in the prior environmental impact report prepared pursuant for the project to the California Environmental Quality Act to complete the feasibility analysis required by Water Code section 13142.5 because the Board had the discretion to find that “feasibility” had the same definition under both statutory schemes.  Finally, the court rejected the petitioners’ argument that the Board was compelled to include a quantitative analysis comparing potential measures that could be adopted to comply with Water Code section 13142.5.  The court explained that the petitioners argument lacked any statutory or regulatory support.

Key Point:

A court will review the Board’s compliance with Water Code section 13142.5, subdivision (b), based on the substantial evidence standard of review.  Based on this standard, dissenting voices from other agencies do not alone render a decision inadequate.

Written By: Tina Thomas and Christopher Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

EIR’s Skewed Description of Project Objectives Results in Inadequate Analysis of Alternatives

Monday, December 10th, 2012

In Habitat and Watershed Caretakers v. City of Santa Cruz (2012) Cal.App. LEXIS 1213, the Sixth District Court of Appeal reversed a trial court decision and ordered that certification of an environmental impact report (EIR) prepared by the City of Santa Cruz be vacated pending the City’s correction of defects in the identification of project objectives and the analysis of alternatives.

In 2006, the Regents of the University of California (Regents) adopted a Long Range Development Plan (LRDP) for the University of California, Santa Cruz, which contemplated development of “North Campus” in an unincorporated area outside of the City of Santa Cruz. The city and others filed a lawsuit challenging the Regents’ approval of the LRDP, and in 2008, the Regents and City entered into a settlement agreement pursuant to which the Regents agreed to restrict enrollment and increase on-campus housing, contingent on the city seeking approval from the Local Agency Formation Commission (LAFCO) for a sphere of influence (SOI) amendment to bring North Campus within the city, and agreeing not to oppose the Regents’ request for extraterritorial water and sewer services for North Campus. The city subsequently filed an application for an SOI amendment with LAFCO, and the Regents filed an application for the provision of water and sewer services. The city prepared an EIR for the project, which it certified in August, 2010. Petitioners filed suit alleging that the EIR failed to comply with the California Environmental Quality Act (CEQA).

The trial court denied the petition; however, on appeal, the court concluded that the city’s EIR incorrectly described the project’s objectives and that this incorrect description skewed its consideration of alternatives. The EIR was therefore inadequate because it failed to consider any potentially feasible alternatives that would avoid or limit the significant environmental impact of the project on the city’s water supply.

The EIR described the objectives as implementation of the settlement agreement as related to submission of applications to LAFCO for an SOI amendment and to facilitate the provision of water and sewer service. The court found that these objectives did not describe the underlying purpose of the project, but only the nature of the project. In other words, the purpose of the project was not to fulfill the settlement agreement requirements, since those were satisfied when the applications were filed. The SOI amendment and provision of water described the project, but the underlying purpose inferred from the EIR was to provide the Regents with the water necessary to develop North Campus and the other to satisfy the requirements necessary to trigger the Regents’ obligation to honor its commitments in the settlement agreement for provision of on-campus housing. The court therefore agreed with petitioners that the EIR misstated the project’s objectives.

The court went on to find that this skewed the consideration of alternatives The EIR did not include consideration of alternatives, such as a reduced-development or limited-water alternative, that could avoid or lessen significant impacts on water supply based on the city’s position that these alternatives failed to meet the basic project objectives. The court found that either of these alternatives would at least partially met the project’s underlying purpose of allowing some development of North Campus and neither would fail to secure the city’s ability to hold the Regents to their housing commitment. Because the EIR did not provide any analysis of feasible alternatives, the EIR failed to satisfy the informational purposes of CEQA.

The court also considered arguments from petitioners related to the analysis of impacts on water supply, watershed resources, biological resources, and indirect growth inducement, but deferred to the conclusions of the city on these points, which were supported by substantial evidence.

Key Point:

The court’s decision serves as a reminder that the lead agency should carefully describe the project objectives to ensure that they do not just describe the nature of the project, but clearly set forth the underlying purpose of the project. Because the project objectives guide the agency in its selection of alternatives, a clearly written statement of objectives is necessary to ensure that feasible alternatives can be identified.

Written By: Tina Thomas and Amy Higuera

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Happy Holidays for Wal-Mart Shoppers in Merced and Antioch

Wednesday, December 5th, 2012

Merced Alliance v. City of Merced, 2012 Cal.Unpub. LEXIS 8739

After years battling it out in public hearings and in court, the City of Merced claimed victory in its attempt to bring a 1 million square foot regional Wal-Mart distribution center to a 230-acre industrial site in the southeast section of the City. In an unpublished decision, the Fifth District Court of Appeal affirmed the lower court’s decision to deny the petition for writ of mandate filed by petitioners Merced Alliance for Responsible Growth. Petitioners had alleged numerous claims under CEQA, including that the EIR was inadequate for failure to consider a no-project alternative and failure to adequately assess the project’s impact on air quality, hydrology and water quality, traffic, urban decay, visual impacts and greenhouse gases and global climate change. In addition, Petitioners argued the EIR should have been recirculated because the City added significant new information to the final EIR and added new information to the administrative record after the release of the final EIR. The court rejected all claims.

Of note, the court found that the no-project alternative, which assumed a similar 1 million square foot development would be built if the Wal-Mart project did not proceed, was adequate because the EIR also included a discussion of the existing conditions, the general environmental setting, and the impacts of the project compared with the existing conditions. In addition, substantial evidence supported the determination that, if the Wal-Mart proposal did not go forward, the project site would likely be developed for another industrial or warehouse use. Thus, the court concluded that the EIR sufficiently discussed the impacts of the project compared with existing physical conditions as required by CEQA Guidelines 15126.6, subdivision (e2).

The court also upheld the city’s determination that the project would not create urban decay because it is not a retail facility; rather, it is a regional warehouse that would supply retail facilities within a large radius of the project site. According to the court, any discussion of urban decay effects that may be caused by future Wal-Mart stores that could be built and that would possibly foster urban decay would be too speculative and not reasonably foreseeable.

California Health Communities Network v. City of Antioch, 2012 Cal.App.Unpub. LEXIS 8571

The City of Antioch approved a proposed expansion of a Wal-Mart Store in the City’s Williamson Ranch shopping center without first requiring supplemental environmental review under CEQA. The City argued the expansion was consistent with a development plan that had already been reviewed under CEQA and thus only design review was required. The development plan for the Williamson Ranch shopping center was approved in 1998 and the environmental impacts were analyzed in a mitigated negative declaration. The plan established the allowable square footage for the shopping center and contemplated a grocery store as one of the permissible uses. The City determined that Wal-Mart’s proposed expansion, which fell within the allowable square footage and called for the addition of grocery sales, was consistent with the plan. Because the environmental impacts of the plan had been previously analyzed, the City found the only discretionary action required for the project was design review.

Petitioners filed a petition for writ of mandate alleging that CEQA review was required and the superior court granted the petition and issued the writ, holding the City’s municipal code granted the City the power to address environmental issues as part of its design review process. In an unpublished decision, the First District Court of Appeal reversed the lower court, allowing the expansion to proceed without additional CEQA review.

The question before the court was whether the City’s Design Review Board had the authority to address environmental concerns that might be raised in a supplemental EIR. If so, supplemental analysis was required as part of the design review process due to the changes in the area surrounding the project; if not, the City properly concluded no additional review was required. The court held that the City’s municipal code was not sufficiently precise to give the Design Review Board the power to broadly condition a design approval on off-site environmental issues such as traffic and urban decay. Thus, the City properly determined that design review was limited to design and aesthetic issues. No supplemental EIR was required.

Written By: Tina Thomas and Ashle Crocker
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.