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Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165

Thursday, November 21st, 2019

Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165

In 2012, the County of Amador (County) certified a final EIR and approved the Newman Ridge Project, a quarry and related facilities near Ione (Project). 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 the first petition, LAWDA raised seven CEQA issues. The trial court granted the petition, but only insofar as traffic impacts related to surface street and rail lines were concerned. The trial court required the County to vacate certification of the EIR and recirculate the portion of the EIR pertaining to traffic impacts. 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 the portion of the EIR pertaining to traffic impacts. After responding to comments, the County certified the partially recirculated EIR and approved the Project. In June 2015, the County and project applicants filed an additional return certifying that they had complied with the writ. The County asked the trial court to uphold certification of the EIR and approval of the Project, and grant a motion to discharge the writ. The court granted the motion in August 2015.

Coterminously, LAWDA filed a second petition challenging the County’s certification of the partially recirculated EIR. LAWDA alleged eight violations of CEQA relating to water, traffic, biological resources, air, mitigation measures, recirculation principles, overriding considerations, and responses to public comment. The second petition alleged the County did not change any portions of the EIR in recirculation, even though the entire EIR would be affected by changes in the Project area including the official state drought and approval of significant expansion projects nearby. In response, the County demurred and argued that many of the issues raised in the second petition had already been litigated and resolved in the trial court’s judgment on the first petition. The County claimed that these issues were barred from being adjudicated in the second petition by the doctrine of res judicata. On that basis, 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 bars (1) relitigation of a previously litigated cause of action adjudicated in another proceeding between the same parties and (2) issues which could have been litigated, but 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 arguments in the second petition other than those related to the recirculated traffic impact analysis.

LAWDA argued in their reply brief that the seven non-traffic issues should be litigated because “new and different circumstances render[ed] the newly certified EIR factually different from the prior EIR”. However, because LAWDA failed to include their counterargument to the application of res judicata in their opening brief, they forfeited the argument raised in their reply brief. Thus, the Court declined to consider the merits because “considerations of fairness in argument demand that the appellant present all of his points in the opening brief.”

The Court concluded that only those arguments concerning the recirculated traffic impact analysis could be raised and were not precluded. The Court 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.

Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation, 39 Cal. App. 5th 1044

Thursday, November 21st, 2019

Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation, 39 Cal. App. 5th 1044

The California Department of Corrections (Department) operates a prison next to the historic Lake Norconian Club, a former resort and hotel constructed in the 1920’s. The Department used the building as a drug rehabilitation facility, and later, as prison administrative offices. In 2012, the legislature decided to close the prison, and the Department prepared an EIR for the planned closure. The EIR stated that the Department could not allocate 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 would not maintain the former hotel.

Beginning in 2006, Lake Norconian Club Foundation (Petitioners) repeatedly advocated for the Department to maintain the hotel. Petitioners sued in 2014, alleging that the Department’s willful and ongoing failure to maintain the hotel was a continuous discretionary action with significant environmental impacts, and therefore, was a project under CEQA for which no environmental review was conducted. The trial court agreed with Petitioners and found 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, rendering the 2014 petition untimely.

Petitioners appealed the judgment, and the Department cross-appealed, arguing that its inaction was not a project under CEQA.

No prior California case has addressed whether an agency’s failure to act could be considered a project. In federal NEPA cases, courts have often held that inaction does not constitute ‘action’ (the NEPA term analogous to a ‘project’ under CEQA). NEPA guidelines 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 of a mandatory duty to act creates an omission.

The Court noted that CEQA contains no such guideline and Petitioners failed to identify a statute which created a duty for the Department to maintain the hotel. The Court stated that CEQA defines “project” by describing activities which constitute projects—failure to act is not a project, even if the inactivity would lead to environmental consequences. The Court noted the practical unworkability of deeming inactivity a project, particularly when attempting to determine when the ‘inactivity project’ commences or receives approval for purposes of CEQA’s statute of limitations.

Absent any statutory duty, the Court held that the Department’s failure to act could not be deemed a project, nor challenged for noncompliance with CEQA; and that inaction is not a project under CEQA, at least where there is no affirmative duty to act.