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AGENCY’S FAILURE TO PERFORM MAINTENANCE ON DETERIORATING HISTORIC RESOURCE IS NOT A “PROJECT” WITHIN THE MEANING OF CEQA.

Friday, September 20th, 2019

In Lake Norconian Club Found. v. Dep’t of Corr. & Rehab. (Sep. 13, 2019, No. A154917) ___Cal.App.5th___ [2019 Cal. App. LEXIS 866], the first district held that the Department of Corrections’ decision to allow the gradual deterioration of a historic hotel, which it had no duty to maintain, was not a project and could not be challenged for noncompliance with CEQA.

Since 1963, the California Department of Corrections (Department) has operated a prison next to the historic Lake Norconian Club, a former resort and hotel constructed in the 1920’s. The Department used the hotel building as a drug rehabilitation facility, and later, as the prison’s administrative offices. In 2012, the legislature decided that the prison would close and the Department prepared an EIR for the closure. The EIR stated that the Department could not allocate the necessary funds to maintain the building due to the Department’s other maintenance priorities. The legislature later changed its mind, allowing the Department to continue operating the prison, however the Department decided that it still would not maintain the former hotel.

The Lake Norconian Club Foundation (Petitioners) had repeatedly encouraged the Department to maintain the hotel since 2006. In 2014, they filed a petition alleging that the Department’s willful and ongoing failure to maintain the hotel was a continuous discretionary action with significant environmental impacts, and therefore a project under CEQA for which no environmental review had been conducted.

The trial court agreed with Petitioners that the Department’s actions and omissions constituted a project under CEQA, but nevertheless entered judgment in favor of the Department. The trial court concluded that the statute of limitation began to run when the 2013 EIR was certified, and that the 2014 petition was therefore untimely.

The Foundation appealed the judgment and the Department cross-appealed, arguing that its inaction was not a project.

No California case prior to this had yet addressed whether an agency’s failure to act could be considered a project under CEQA. However, the question had been addressed under NEPA in federal courts. In NEPA cases courts have repeatedly held that inaction does not constitute “action” (the NEPA term analogous to a “project” under CEQA). However, unlike CEQA, the federal NEPA guidelines do state that inaction may constitute action where the omission would be judicially reviewable under the APA, and case law has held that inaction in the face a mandatory duty to act would create such an omission.

However, the Court noted that CEQA contains no such guideline. Additionally, no statute was identified by Petitioners which created a duty for the Department to maintain the hotel.

The Court also stated that CEQA defines “project” by defining those activities which constitute projects. Here, it held that the failure to act was not an activity at all, even if the inactivity would lead to environmental consequences. It also noted the practical unworkability of deeming inactivity a project, particularly for attempting to determine when the project commences or receives approval for purposes of the CEQA statute of limitations.

Therefore, absent any statutory duty, the Court held that the Department’s failure to act could not be deemed a project or challenged for noncompliance with CEQA.

Key Point: Inaction is not a project under CEQA, at least where there is no affirmative duty to act.

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.