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CEQA Updates

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

Posts from October, 2014

Appellate Court Upholds Attorney Fees Award in CEQA Litigation Challenging State Water Board Adoption of Instream Flow Policy

Friday, October 31st, 2014

In an unpublished opinion in Living Rivers Council v. State Water Resources Control Board, 2014 Cal. App. Unpub. LEXIS 7321, the California Court of Appeal for the First District affirmed an award of attorney fees to Petitioners Living Rivers Council as the prevailing party in a CEQA lawsuit challenging an instream flow policy adopted by the State Water Resources Control Board.

The Water Board’s policy was intended to ensure that instream flows needed to protect fishery resources would be maintained.  On the merits, the trial court entered judgment requiring the Water Board to rescind its approvals until it evaluated potential mitigation measures to address impacts associated with the increase in groundwater use that could result from implementation of the policy.  Living Rivers thereafter moved for $602,211 in attorney fees and the court awarded $445,005.

On appeal of the fee award, the Water Board first contended that fees were improper because Living Rivers was not the successful party. According to the Water Board, the trial court, and not Living Rivers, originated the legal theories on which they prevailed.  The court emphasized that courts take a broad approach to prevailing party concept under California Civil Procedure Code section 1021.5. A party is successful and entitled to attorney fees if the party succeeds on any significant issue that achieves some benefit the party sought in bringing the suit. But for the filing of Living Rivers’ petition, the trial court would not have concluded the Water Board’s environmental review was flawed.  The court therefore held that the trial court did not abuse its discretion in finding Liver Rivers the prevailing party.

Next, the Water Board contended that the litigation did not confer a significant benefit on the public because it resulted in a limited remand based on technical violations for minor revisions to the environmental analysis.  The court rejected this argument, noting that, although not every statutory violation authorizes an attorney fee award, the benefit need not be tangible. According to the court, the trial court was in accord with precedent when it concluded that compelling a government agency to conduct further environmental review constituted a significant benefit. 

The court also rejected the Water Board’s argument that the litigation was not necessary to achieve the results obtained. It did not matter that Living Rivers did not raise the specific relief it ultimately obtained during the administrative process or during settlement negotiations. As the court explained, settlement negotiations are not a prerequisite to an award of attorney fees, so the substance of negotiations is not dispositive. Living Rivers made reasonable efforts to resolve the case before incurring substantial attorney fees and the court could not conclude the trial court lacked a reasonable basis for finding the litigation was necessary.  

Finally, the court concluded that the trial court’s use of a multiplier to increase the attorney fees was not an abuse of discretion. The trial court initially reduced the award to reflect Living Rivers’ success on only one of its three initial claims, but the trial court still adopted a multiplier of 1.5 due to the contingent nature of the case and ultimate resolution of the case on the merits. The court was not persuaded by the Water Board’s argument that taxpayers will ultimately bear the burden of this attorney fee award. Accordingly, the court held the amount of attorney fees was within the trial court’s discretion.

Costs for Preparing Administrative Record May Include Attorney and Paralegal Labor

Wednesday, October 15th, 2014

In a partially published opinion in Otay Ranch, L.P. v. County of San Diego, 2014 Cal. App. LEXIS 875, the California Court of Appeal for the Fourth District affirmed the trial court’s decision to allow San Diego County to recover the reasonable costs charged by outside counsel to prepare the administrative record for a mandamus proceeding.

The petitioners alleged the county violated the California Environmental Quality Act (CEQA) and the Health and Safety Code by approving a remediation plan for a skeet shooting range in Chula Vista, relying on a mitigated negative declaration.

The petitioners initially prepared the administrative record themselves, but when the petitioners produced a substantially deficient record, the county elected to take over record preparation. The petitioners did not object and did not challenge its obligation to pay the record costs. The county subsequently retained outside counsel to assist in preparing the 18,000-page administrative record. The day after the complete record was served on the petitioners, they dismissed the entire action.

The trial court thereafter awarded the county $37,528.14 in costs for preparing the record, which included $30,435 for attorney and paralegal time spent preparing the record, and $7,093.14 in copies and other associated costs to produce the document.  The petitioners did not challenge the cost of copies and production, but contended the amounts charged for attorney and paralegal time amounted to an award of attorney fees impermissible under CEQA or the Health and Safety Code. The court stated that Public Resources Code section 21167.6 requires payment of any reasonable costs or fees associated with preparing the record, and petitioners had the burden of establishing the trial court abused its discretion and “exceeded the bounds of reason” in determining whether the cost was reasonable and necessary.

The court held that, due to the complexity and history of the project, it was not unreasonable for the county to retain outside counsel to assist in preparing the administrative record. The costs of preparing the record were not improper attorney’s fees just because a law firm provided the labor. Petitioners are required to pay the “actual costs” and because the county did not have the resources or experienced personnel to prepare the record, it was not unreasonable for the county to retain lawyers and paralegals with the “specialized knowledge” to assist.


Preparation of the administrative record in a mandamus action can require specialized knowledge given the complex nature of CEQA litigation. Accordingly, a trial court has discretion to allow recovery of attorney and paralegal labor as part of the actual costs of preparing the administrative record when the costs are reasonably necessary.

Appellate Court Finds Governor is Not a Public Agency Under CEQA

Tuesday, October 14th, 2014

In Picayune Rancheria of Chukchansi Indians v. Brown, 2014 Cal. App. LEXIS 864, the California Court of Appeal for the Third District rejected a petition for a writ of mandate challenging the governor’s authority to approve a land transfer allowing an Indian tribe to build a casino in Madera County. The court held the governor is not a public agency under the California Environmental Quality Act (CEQA) and therefore, he was not required to complete an environmental impact report (EIR) before approving the land transfer.

The Picayune Rancheria of Chukchansi Indians (Picayune Tribe) filed the lawsuit after the governor concurred with a decision by the Department of the Interior (DOI) to allow the North Fork Band of Mono Indians (North Fork Tribe) to acquire land for a casino along Highway 99 in Madera County.  Under the Indian Gaming Regulatory Act, the governor is authorized to concur with the DOI’s determination that a casino would be in the best interest of the North Fork Tribe and not detrimental to the surrounding community. The Chukchansi Tribe contended the governor was a public agency under CEQA and his concurrence constituted a project under CEQA.

The court first looked to the definition of public agency in CEQA, which states that a public agency “includes any state agency, board, or commission, any county, city and county, city, regional agency, public district, redevelopment agency, or other political subdivision.” While the list was not exclusive, the court found the examples were all governmental bodies and because the governor was an individual, the governor was not intended to fall under the definition of a public agency.

The Picayune Tribe also contended that because the Government Code expressly exempts certain actions carried out by the governor and tribes from CEQA, then other actions by the governor must be subject to CEQA requirements. The Picayune Tribe pointed to Government Code section 12012.25(g), which exempted the negotiation and execution of intergovernmental agreements governing gaming operations from CEQA “in deference to tribal sovereignty.” The court held the Picayune Tribe’s interpretation was not the only possible meaning of this provision, and that the clause, “in deference to tribal sovereignty,” suggested the provision could also be interpreted as a clarification that the tribe’s actions were not subject to CEQA.

Finally, the court rejected the Picayune Tribe’s argument that public policy supported a broad interpretation of “public agency” in order to provide the fullest possible environmental protections. The court held CEQA section 21083.1 precluded the Picayune Tribe’s interpretation because the tribe’s interpretation would impose a procedural requirement beyond what was explicitly stated in the statute. 


Under the rationale in this case, the governor of California is not a public agency for purposes of CEQA.

Federal Law Preempts CEQA Review of Northern California Rail Line Operations

Tuesday, October 14th, 2014

In Friends of Eel River v. North Coast Railroad Authority, 2014 Cal. App. LEXIS 877, the California Court of Appeal for the First District affirmed the trial court’s determination that federal law preempts the North Coast Railroad Authority’s (North Coast) obligation to comply with the California Environmental Quality Act (CEQA) in repairing and operating a segment of rail tracks in Northern California.

The California Legislature established North Coast to maintain rail service on the Northwestern Pacific Railroad line between Humboldt and Napa counties. After several years of closure and limited operations due to safety and maintenance issues, North Coast sought to reopen the portion of the line between Mendocino and Napa counties. North Coast entered into an agreement with Caltrans for funding to repair the line. The agreement required North Coast to comply with CEQA as a prerequisite to obtaining funds. After a comprehensive environmental review, North Coast approved a resolution certifying an EIR and adopting a statement of overriding considerations in reopening the line.

Petitioners challenged the certification of the EIR, and North Coast subsequently passed a second resolution rescinding that certification. The subsequent resolution stated North Coast had mistakenly believed it had to comply with CEQA, but had later determined it was not required to comply with CEQA because the Interstate Commerce Commission Termination Act (ICCTA) governed rail operations and preempted California’s environmental regulations.

The court found that ICCTA’s “broadly worded express preemption provision” preempted CEQA as applied to railroad operations. The court held the Surface Transportation Board had exclusive jurisdiction over rail operations in the United States, and any state or local statute requiring environmental review as a prerequisite to rail operations was unduly burdensome on interstate transportation.

North Coast’s previous agreement with Caltrans, in which it voluntarily agreed to prepare an EIR, did not alter the preemption analysis. If petitioners wished to enforce a clause in that agreement, petitioners needed to bring an action for breach of contract, which they did not. Additionally, the court noted that the contract language was ambiguous because the agreement to complete an EIR mandated by CEQA would be inapplicable where CEQA was preempted.

The court distinguished this case from the Third District’s recent decision in Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314. In Atherton, the court found that the market participation exception to preemption required the High Speed Rail Authority to complete an EIR as part of the process for determining where to place a line of track. In contrast, North Coast sought to upgrade an existing track. While the market participant exception normally allows a state to regulate when it is acting in the capacity of a private market participant, petitioners could not “stand the doctrine on its head” and use it to avoid preemption of a federal statute the state wishes to invoke. Even if the market participation doctrine were to apply, the court explained it only protects proprietary activities of the states, and a writ of mandate to comply with CEQA is not proprietary, but is  a regulatory action. The court acknowledged the similar facts and different result from Atherton, but respectfully disagreed with that court’s analysis.

The court also rejected petitioner’s other challenges under the Tenth Amendment and judicial estoppel grounds.


While the court in Atherton applied the market participant exception to preemption defensively to compel a state agency to comply with CEQA, not all courts will apply the doctrine in such a manner. The ICCTA governs railroad operations in the United States, and statutes, such as CEQA, that unduly burden interstate transportation will be preempted by this federal law, even when the state agency otherwise agrees to comply with the state statute.

When is Agency Action Considered a Project under CEQA? When the Legislature Says So.

Wednesday, October 1st, 2014

In Rominger v. County of Colusa, 2014 Cal. App. LEXIS 813, the Court of Appeal for the Third District overturned the trial court and held a proposed subdivision approved by Colusa County was a project under the California Environmental Quality Act (CEQA), even though the proposal did not include any specific plans for development. The appellate court went on to find that substantial evidence in the record supported a fair argument that the project may have a significant unmitigated impact on traffic at a particular intersection adjacent to the project site. Accordingly, the appellate court reversed and remanded for the preparation of an environmental impact report (EIR).

In 2009, real party in interest, Adams Group Inc., filed an application for a tentative subdivision map to divide four parcels into sixteen parcels. The application included no specific plan for future use of the property. The County conducted an initial study and then a revised study, and eventually adopted a mitigated negative declaration, concluding that impacts of the project could be mitigated to a less-than-significant level. Neighbors opposed the project throughout the review process and sought to compel preparation of an EIR for the subdivision.

The court first reversed the trial court and determined that the subdivision was a project under CEQA. Section 21080 of the Public Resources Code specifically includes approval of a tentative subdivision map as a project under CEQA. The court also found that the common sense exemption to CEQA review did not apply because the County could not show there was no possibility that approval of the subdivision could lead to a significant effect on the environment at some point in the future.  

The court then considered each of the seven environmental areas that the petitioners contended would be significantly impacted by the subdivision. The petitioners’ traffic expert showed the County improperly relied on a continued agricultural use for the subdivision when the County conducted its analysis. The court considered the traffic expert’s specific facts, such as the subdivision’s proximity to a major highway, and concluded substantial evidence supported a fair argument that the subdivision may have a significant environmental impact on traffic.

The court dismissed arguments related to impacts on agriculture, odor, noise, air quality, greenhouse gas emissions, and water supply. The mitigation measures the County required to address these areas adequately addressed any significant environmental impacts and no substantial evidence to the contrary had been provided.

The court also found the County abused its discretion by failing to provide a full thirty-day public review period for the mitigated negative declaration. The County issued notice that the public comment period would be August 7 to September 5.  Since September 5 was a holiday, the comment period was only twenty-nine days. However, the court ultimately concluded this was not a prejudicial error


Whether an approval is considered a project for purposes of CEQA review is not a fact-based inquiry when the type of activity is expressly listed in Public Resources Code section 21080 subdivision (a). The Legislature determined that certain activities always have the potential to impact the environment and a lead agency’s determination of no significant impact does not alter this conclusion.