Thomas Law Blog

CEQA Updates

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

Posts from May, 2019


PLAINTIFFS MAY NOT CHALLENGE RECIRCULATED EIR ON GROUNDS THAT THEY UNSUCCESSFULLY RAISED, OR COULD HAVE BUT DID NOT RAISE, IN THEIR CHALLENGE TO THE ORIGINAL EIR.

Friday, May 24th, 2019

In Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165, the Third District Court of Appeal held that res judicata barred objections to a partially recirculated environmental impact report (EIR) that were, or could have been, litigated and resolved during prior litigation between the parties over the original EIR.

The County of Amador (County) certified a final EIR and approved a quarry along with related facilities near Ione. The Ione Valley Land, Air, and Water Defense Alliance (LAWDA) filed a petition for writ of mandate, claiming that the approval violated CEQA, the State Mining and Reclamation Act, and the Planning and Zoning Law. In this first petition, LAWDA raised seven CEQA issues. The trial court granted the petition as to traffic impacts and required the County to vacate certification of the EIR and recirculate the portion of the EIR pertaining to traffic impacts. The trial court denied the remainder of the petition. LAWDA did not attempt to appeal the trial court’s denial of the remaining six CEQA issues it had raised.

The County, as instructed by the court, vacated its EIR certification and recirculated for public comment the portion of the EIR pertaining to traffic impacts. After certifying the partially recirculated EIR, the County filed a return to the court attesting that they had complied with the writ and asking the court to uphold the County’s EIR certification and project approval. The trial court agreed and granted the County’s motion to discharge the writ.

Meanwhile, LAWDA filed a second petition challenging the County’s certification of the partially recirculated EIR, raising eight alleged deficiencies. In response, the County demurred and argued that many of the issues raised in this second petition had already been litigated and resolved in the trial court’s judgment on the first petition and hence were barred from being adjudicated in the second petition by the doctrine of res judicata. The trial court denied the writ, and LAWDA appealed.

Relying on Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, the Court held that res judicata, or claim preclusion, bars not just relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties, but also bars issues which could have been litigated but which a party failed to raise. Applying the doctrine to the facts at hand, the Court agreed with the County that LAWDA was barred from bringing all arguments in the second petition but the one related to the recirculated traffic impact analysis.

LAWDA argued that it was not an aggrieved party of the first adjudication, and hence could not appeal the decision, citing its success in forcing the County to vacate the EIR certification. However, the Court disagreed, holding that this did not account for the six other grounds on which the trial court denied the petition. According to the Court, LAWDA could have appealed the trial court’s denial as to each of its other issues notwithstanding its success on the traffic impact analysis argument and that its failure to pursue the issues through appeal foreclosed its ability to raise them subsequently.

LAWDA additionally argued that “new and different circumstances render[ed] the newly certified EIR factually different from the prior EIR,” as regards to the seven issues unrelated to traffic analysis. However, because LAWDA only raised the argument in its reply brief, not in its opening brief, the Court declined to consider the merits of the argument because “considerations of fairness in argument demand that the appellant present all of his points in the opening brief.”

As such, the Court concluded that only those arguments concerning the recirculated traffic impact analysis were being raised for the first time. The Court then rejected the remaining challenge to the traffic impact analysis in an unpublished portion of the opinion, upholding the trial court’s denial of the petition.

Key Point:

When a party successfully challenges an EIR on a particular issue, forcing a recirculation, but either does not succeed on or does not raise other issues, that party will be barred by res judicata from raising those other issues in a challenge to the recirculated EIR.