Archive for December, 2017


2017 CEQA Case Law: The Year in Review

December 28th, 2017 by Sara Dudley

2017 CEQA Case Law: The Year in Review

2017 was a busy year in CEQA jurisprudence, with over two dozen published cases. Below is a list of the most significant, with links to the full case summaries from the RMM blog.

Center for Biological Diversity v. California Department of Fish and Wildlife (2017) __Cal.App.5th­­__ (Case No. B280815)

In a partially published decision filed December 4, 2017, the Second District Court of Appeal upheld the lower court’s judgment and order on remand in Center for Biological Diversity v. California Department of Fish and Wildlife (2017) __Cal.App.5th­­__ (Case No. B280815). The court concluded that the trial court did not abuse its discretion in decertifying only the affected sections of the EIR, enjoining all project construction, and suspending some (but not all) of the project approvals. This CEQA remedy also provided adequate relief for violations of the Fish and Game Code.

Case Summary: https://www.rmmenvirolaw.com/2017/12/second-district-upholds-limited-writ-in-second-newhall-ranch-appeal/

Monterey Coastkeeper v. Monterey Water Resources Agency (2017) ___ Cal.App.5th ___ (Case No. H042623)

In Monterey Coastkeeper v. Monterey Water Resources Agency (2017) ___ Cal.App.5th ___ (Case No. H042623), the Sixth District Court of Appeal reversed the trial court’s judgment granting Monterey Coastkeeper’s petition for writ of mandate for violation of section 13260 of the Porter-Cologne Act (failure to file a report of waste discharge), holding that the petitioner had failed to exhaust its administrative remedies.

Case Summary: https://www.rmmenvirolaw.com/2017/12/sixth-district-court-of-appeal-holds-breach-of-public-trust-doctrine-claim-not-ripe-for-adjudication-in-the-absence-of-petitioners-exhaustion-of-its-administrative-remedies/

Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413

On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year. The court found that the EIR’s analysis of impacts and mitigation measures for air quality and impacts to agricultural land were insufficient and not supported by substantial evidence.

Case summary: https://www.rmmenvirolaw.com/2017/12/on-remand-fourth-district-determines-that-case-challenging-sandags-rtp-is-not-mooted-by-later-eir-and-resolves-ceqa-issues-on-the-merits/

Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277.

In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal upheld the trial court’s decision directing the Department of Parks and Recreation and the State Park and Recreation Commission to set aside project approvals where the draft EIR analyzed five alternative projects in detail, but did not identify one preferred alternative.

Case Summary: https://www.rmmenvirolaw.com/2017/11/in-a-case-of-first-impression-first-district-court-of-appeal-holds-that-presentation-of-five-alternatives-in-eir-without-designation-of-one-as-the-project-does-not-satisfy-ceqa/

Association of Irritated Residents v. Kern County Board of Supervisors (2017) 17 Cal.App.5th 708.

On November 21, 2017, the Fifth District partially published its decision in Association of Irritated Residents v. Kern County Board of Supervisors (2017) 17 Cal.App.5th 708. The published sections covered arguments about the baseline used for the oil refinery modification project, the mitigation of greenhouse gas (GHG) emissions, and the extent to which federal preemption precludes aspects of CEQA review of project impacts. In reversing the trial court’s judgment denying the petition for writ of mandate, the Court of Appeal upheld the EIR’s treatment of the project baseline and GHG emissions but determined that the county erred in relying on federal preemption to avoid analyzing and mitigating impacts from off-site rail activities.

Case Summary: https://www.rmmenvirolaw.com/2017/11/fifth-district-court-of-appeal-approves-of-oil-refinery-eirs-use-of-cap-and-trade-program-to-mitigate-ghg-emissions-but-disapproves-of-kern-countys-reliance-on-federal-preemption-in/

Kennedy Commission v. City of Huntington Beach (2017) 16 Cal.App.5th 841

On October 31, 2017 in Kennedy Commission v. City of Huntington Beach  (2017) 16 Cal.App.5th 841, the Fourth Appellate District reversed the lower court, finding that the city was a charter city, and thus exempt from the requirement that zoning ordinances and specific plans be consistent with the general plan.

Case Summary: https://www.rmmenvirolaw.com/2017/11/fourth-district-rejects-challenge-to-the-city-of-huntington-beachs-housing-element-applying-charter-city-exemption/

Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883

The Sixth District Court of Appeal held in the partially-published opinion, Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, that general plan consistency is not a CEQA issue, and therefore mandate procedures for CEQA violations are inapplicable.

Case Summary: https://www.rmmenvirolaw.com/2017/11/sixth-district-court-of-appeal-upholds-trial-courts-use-of-interlocutory-remand-on-determination-regarding-general-plan-consistency/

Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187

On October 16, 2017, the First District Court of Appeal published its decision in Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187, upholding the San Francisco County Superior Court’s denial of a petition for writ of mandate challenging the Judicial Council of California’s decision to certify a Final EIR and approve the New Placerville Courthouse Project.

Case Summary: https://www.rmmenvirolaw.com/2017/10/first-district-court-of-appeal-upholds-judicial-council-of-californias-determination-that-closure-of-downtown-placerville-courthouse-would-not-lead-to-significant-urban-decay-impacts/

Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261

In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal, Division Three, upheld the City and County of San Francisco’s finding that a conditional use authorization for the restoration of a small cottage and construction of a three-unit condominium on Telegraph Hill was categorically exempt from CEQA, and found that the city’s conditions of approval relating to construction were not mitigation for pedestrian and traffic impacts.

Case Summary: https://www.rmmenvirolaw.com/2017/10/first-district-upholds-categorical-exemption-with-conditions-of-approval-and-conditional-use-authorization-for-residential-project-on-infill-site-in-transit-priority-area/

Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 16 Cal.App.5th 224

In Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 16 Cal.App.5th 224 (republished as modified), the First Appellate District reversed the Alameda Superior Court and found that environmental documents prepared by the California Department of Pesticide Regulation, regarding amended labelling for two pesticides, inadequately analyzed potential impacts on honeybees. The court held that the Department was required to analyze the environmental baseline, alternatives, and cumulative impacts in documents promulgated under CEQA’s exemption for certified regulatory programs (CRP).

Case Summary: https://www.rmmenvirolaw.com/2017/10/first-circuit-finds-environmental-review-under-certified-regulatory-program-inadequate/

Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449

In Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, the First District Court of Appeal, Division One, upheld the City of South San Francisco’s (City) finding that a conditional use permit for the conversion of an office building into a medical clinic was categorically exempt from CEQA, as well as the City’s implied finding that the unusual circumstances exception did not apply.

Case Summary: https://www.rmmenvirolaw.com/2017/09/first-district-upholds-categorical-exemption-for-planned-parenthood-clinic-and-implied-finding-of-no-unusual-circumstances-under-the-fair-argument-test/

Bridges v. Mt. San Jacinto Community College District (2017) 14 Cal.App.5th 104

In Bridges v. Mt. San Jacinto Community College District (2017) 14 Cal.App.5th 104, the Fourth District Court of Appeals held that a land acquisition agreement entered into by the Mt. San Jacinto Community College District to purchase property from the Riverside County Regional Park & Open-Space District for potential future use as the site of new campus did not trigger the duty to prepare an EIR.

Case Summary: https://www.rmmenvirolaw.com/2017/08/fourth-district-holds-that-land-acquisition-agreement-did-not-trigger-duty-to-prepare-an-eir/

Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677

In Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, the California Supreme Court held that the Interstate Commerce Commission Termination Act does not preempt CEQA when a California public agency decides to undertake a new railroad project, even if the state agency later authorizes a private entity to operate the new rail line. The Court therefore concluded that the North Coast Railroad Authority was required to comply with CEQA prior to taking steps to reinitiate rail service on a segment of an interstate rail line that had gone out of operation for many years. The Court declined, however, to enjoin the ongoing operations of the railroad by NWPCo, the private operator. Because these operations had been occurring during the course of the litigation against NCRA, any such injunction would intrude into an area of activity that is preempted by the ICCTA, namely, private railroad operations.

Case Summary: https://www.rmmenvirolaw.com/2017/08/california-supreme-court-holds-that-state-agency-compliance-with-ceqa-is-not-preempted-by-the-iccta/

Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal. 5th 497

In a 6/1 opinion, the California Supreme Court held that the San Diego Association of Governments (SANDAG) did not abuse its discretion by failing to present a consistency analysis in the EIR for its 2011 regional transportation plan (RTP) comparing anticipated GHG emissions with the long-term reduction goals presented in Executive Order (EO) S-3-05, in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal. 5th 497.  The court reasoned that SANDAG had adequately informed the public, using information available at the time, of inconsistencies with overall state climate goals.

Case Summary: https://www.rmmenvirolaw.com/2017/07/3822/

Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235

In Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235, the First District Court of Appeal held that a responsible agency air quality management district may be sued under CEQA, but such suit must be limited to the agency’s specific discretionary action and may not challenge prior lead agency approvals. In addition, the court held that such an action must be brought as an administrative mandamus proceeding under Code of Civil Procedure section 1094.5.

Case Summary: https://www.rmmenvirolaw.com/2017/07/first-district-reversal-allows-for-challenge-to-local-air-districts-limited-discretionary-approval-under-ceqa/

Grist Creek Aggregates, LLC v. The Superior Court of Mendocino County (2017) 12 Cal.App.5th­­­ 979

On June 14, 2017, Division One of the First Appellate District published its decision in Grist Creek Aggregates, LLC v. The Superior Court of Mendocino County (2017) 12 Cal.App.5th­­­ 979, in which the Court of Appeal held that a county air district board’s tie vote on the petitioner’s administrative appeal of an asphalt production facility’s construction permit, effectively resulted in the appeal’s denial, rendering the denial subject to judicial review.

Case Summary: https://www.rmmenvirolaw.com/2017/07/air-district-boards-tie-vote-on-authority-to-construct-permit-is-effectively-a-decision-not-to-revoke-it-which-is-reviewable-for-prejudicial-abuse-of-discretion/

Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034

On May 23, 2017, the Fourth District Court of Appeal court ordered published Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034. In a succinct opinion, the court upheld the city’s decision to deny a mitigated negative declaration (MND), initially approved by the planning commission, regarding an application to subdivide two hillside lots and build three residences.

Case Summary: https://www.rmmenvirolaw.com/2017/06/denial-of-mitigated-negative-declaration-upheld-for-small-san-diego-subdivision/

Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11

On April 21, 2017, the First District Court of Appeal in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, affirmed the trial court and ruled that Sonoma County’s ordinance, issuing an erosion-control permit to establish a vineyard was a ministerial act, not subject to CEQA.

Case Summary: https://www.rmmenvirolaw.com/2017/05/first-district-rules-that-issuing-erosion-control-permit-under-sonoma-county-ordinance-was-ministerial-act-exempt-from-ceqa/

Save our Heritage Organization v. City of San Diego (2017) 11 Cal.App.5th 154

In Save our Heritage Organization v. City of San Diego (2017) 11 Cal.App.5th 154, the Fourth District Court of Appeal upheld a trial court’s denial of a Code of Civil Procedure section 1025.1 attorneys’ fee award to the prevailing real party in interest.

Case Summary: https://www.rmmenvirolaw.com/2017/05/despite-being-a-successful-party-real-party-in-interest-denied-attorneys-fee-award-by-fourth-district/

POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52

In POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (“POET II”), the Fifth District Court of Appeal held that the California Air Resources Board (CARB) failed to comply with the terms of the writ of mandate issued by the same court in POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681 (“POET I”). The court invalidated the trial court’s discharge of the writ, modified the existing writ, and ordered CARB to correct its defective CEQA Environmental Analysis (EA).

Case Summary: https://www.rmmenvirolaw.com/2017/04/fifth-district-rules-carb-acted-in-bad-faith-in-selecting-baseline-for-analysis-of-low-carbon-fuel-standards-regulations/

Friends of the College of San Mateo v. San Mateo County Community College (2017) 11 Cal.App.5th 596

On remand from the Supreme Court’s holding in Friends of the College of San Mateo Gardens v. San Mateo County Community College (2016) 1 Cal.5th 926 (San Mateo I ), the First District interpreted the Supreme Court’s direction as requiring the application of the fair argument standard of review to claims challenging an addendum to a negative declaration in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal. App.5th 596.

Case Summary: https://www.rmmenvirolaw.com/category/blog/

The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993

In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, the Second District Court of Appeal held that the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b), do not apply where counsel fails to lodge the administrative record in a CEQA proceeding and receives a judgment denying the petition for writ of mandate.

Case Summary: https://www.rmmenvirolaw.com/2017/04/second-district-holds-that-failure-to-lodge-administrative-record-barred-post-trial-relief/

California Chamber of Commerce v. State Air Resources Board (2017) 10 Cal.App.5th 604

In a 2-1 opinion, the Third District Court of Appeal upheld the auction-sale component of the cap-and-trade program created by the State Air Resources Board pursuant to the California Global Warming Solutions Act of 2006 (“AB 32”) in California Chamber of Commerce v. State Air Resources Board (2017) 10 Cal.App.5th 604.

Case Summary: https://www.rmmenvirolaw.com/2017/04/third-district-court-of-appeal-upholds-state-air-resources-boards-ab-32-cap-and-trade-program/

Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266

In Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, the Sixth District held that the County of Santa Cruz did not engage in piecemeal review when it separately adopted three different zoning ordinances. The court also upheld the negative declaration for an ordinance increasing the height and density of hotels.

Case Summary: https://www.rmmenvirolaw.com/2017/04/sixth-district-rules-county-of-santa-cruz-did-not-engage-in-piecemeal-review-and-upholds-negative-declaration/

Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918

In Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, the California Supreme Court held that CEQA requires an EIR for a project located within a coastal zone to identify which areas in a project site might qualify as “environmentally sensitive habitat areas” (ESHA) under the California Coastal Act and account for those areas in its analysis of project alternatives and mitigation measures.

Case Summary: https://www.rmmenvirolaw.com/2017/03/california-supreme-court-holds-that-ceqa-requires-eirs-for-projects-located-within-coastal-zones-to-identify-potential-environmentally-sensitive-habitat-areas-as-defined-by-the-calif/

Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941

On March 15, 2017 the Fourth District certified for publication its February 4, 2017 decision in Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, upholding the EIR for a master- planned community (project). A citizens group challenged the sufficiency of the EIR and the county’s approval process on six grounds. The court found for the county and real party in interest, Hanna Marital Trust (applicant), on every count.

Case Summary: https://www.rmmenvirolaw.com/2017/03/fourth-district-upholds-eir-for-master-planned-community-and-concludes-that-county-not-required-to-recirculate/

City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608

In City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608, the City of San Jose argued that messages communicated through personal accounts of city employees were not public records subject to disclosure under the California Public Records Act (“CPRA”). The Supreme Court disagreed, holding that a city employee’s emails about public business are not excluded from disclosure simply because they have been sent, received, or stored in a personal email account.

Case Summary: https://www.rmmenvirolaw.com/2017/03/california-supreme-court-rules-personal-emails-may-be-considered-public-records-subject-to-disclosure-under-the-public-records-act/

Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594

On February 27, 2017, the California Supreme Court issued its unanimous opinion in Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594, reversing an appellate decision holding that Plaintiff’s petition to delist coho salmon south of San Francisco from the register of endangered species was procedurally improper.

Case Summary: https://www.rmmenvirolaw.com/2017/03/high-court-reverses-appellate-decision-limiting-use-of-delisting-petitions-under-the-california-endangered-species-act-but-avoids-reaching-merits-of-fish-and-game-commissions-decision-denyin/

 

In a partially published decision filed December 4, 2017, the Second District Court of Appeal upheld the lower court’s judgment and order on remand in Center for Biological Diversity v. California Department of Fish and Wildlife (2017) __Cal.App.5th­­__ (Case No. B280815).

This is the second appeal of the EIR for the Newhall Ranch development project. It follows the Supreme Court’s 2015 decision where the Court determined that the EIR’s analysis of GHG emissions improperly relied on a “business-as-usual” model and that mitigation adopted for the stickleback fish (catch and relocate) was itself a prohibited taking under the California Fish and Game Code. Subsequently, the Second District affirmed in part and reversed in part its original decision. The appellate court remanded the matter to the trial court, with instructions to issue an order consistent with the Supreme Court’s opinion, but otherwise granting the trial court discretion to resolve all outstanding matters under Public Resources Code section 21168.9.

After additional briefing and a hearing, the trial court issued a limited writ. The writ decertified those sections of the EIR concerning GHG emissions and mitigation measures for the stickleback; enjoined all project activity, including construction; and suspended two of the six project approvals. This appeal followed.

In the unpublished portion the of the opinion, the court found that the writ was not a separate appealable post-judgment order or injunction, and therefore the court had jurisdiction to hear the appeal under Code of Civil Procedure section 904.1.

The court reviewed the lower court’s interpretation of section 21168.9 de novo.  The court determined that the trial court did not abuse its discretion in partially decertifying the EIR, as section 21168.9 expressly permits decertification of an EIR “in whole or in part.” The court also held that after partial decertification, it is permissible to leave in place project approvals that do not relate to the affected section of the EIR. This is consistent with the statute’s implicit mandate that project activities that do not violate CEQA must be permitted to go forward.

The court found that the trial court did not abuse its discretion in issuing the limited writ. The lower court adequately supported its findings and demonstrated that project activities were severable, that severance would not prejudice compliance with CEQA, and that the remaining activities complied with CEQA. The court noted that prejudice with CEQA compliance is particularly unlikely here, given the court’s injunction against further construction.

Finally, the court rejected petitioners’ contention that the writ, issued under CEQA, does not provide an adequate remedy for California Fish and Game Code violations. While acknowledging that section 21168.9 is part of CEQA, the streambed alteration agreement, which remains in place, already prohibits the taking of sticklebacks. Furthermore, the injunction barring project construction provides a suitable remedy for this violation.

On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year.

SANDAG certified a programmatic EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy in 2011. Petitioners challenged that EIR, alleging multiple deficiencies under CEQA, including the EIR’s analysis of greenhouse gas (GHG) impacts, mitigation measures, alternatives, and impacts to air quality and agricultural land. The Court of Appeal held that the EIR failed to comply with CEQA in all identified respects.  The Supreme Court granted review on the sole issue of whether SANDAG was required to use the GHG emission reduction goals in Governor Schwarzenegger’s Executive Order S-3-05 as a threshold of significance. Finding for SANDAG, the Court left all other issues to be resolved on remand.

First, the Court of Appeal ruled that the case was not moot, although the 2011 EIR had been superseded by a new EIR certified in 2015, because the 2011 version had never been decertified and thus could be relied upon. The court also found that petitioners did not forfeit arguments from their original cross-appeal by not seeking a ruling on them. And, even if failing to raise the arguments was a basis for forfeiture, the rule is not automatic, and the court has discretion to resolve important legal issues, including compliance with CEQA.

Second, the court reiterated the Supreme Court’s holding, that SANDAG’s choice of GHG thresholds of significance was adequate for this EIR, but may not be sufficient going forward. Turning to SANDAG’s selection of GHG mitigation measures, the court found that SANDAG’s analysis was not supported by substantial evidence, because the measures selected were either ineffective (“assuring little to no concrete steps toward emissions reductions”) or infeasible and thus “illusory.”

Third, also under the substantial evidence standard of review, the court determined that the EIR failed to describe a reasonable range of alternatives that would plan for the region’s transportation needs, while lessening the plan’s impacts to climate change. The EIR was deficient because none of the alternatives would have reduced regional vehicles miles traveled (VMT). This deficiency was particularly inexplicable given that SANDAG’s Climate Action Strategy expressly calls for VMT reduction. The measures, policies, and strategies in the Climate Action Strategy could have formed an acceptable basis for identifying project alternatives in this EIR.

Fourth, the EIR’s description of the environmental baseline, description of adverse health impacts, and analysis of mitigation measures for air quality, improperly deferred analysis from the programmatic EIR to later environmental review, and were not based on substantial evidence.  Despite acknowledging potential impacts from particulate matter and toxic air contaminants on sensitive receptors (children, the elderly, and certain communities), the EIR did not provide a “reasoned estimate” of pollutant levels or the location and population of sensitive receptors. The EIR’s discussion of the project’s adverse health impacts was impermissibly generalized. The court explained that a programmatic EIR improperly defers mitigation measures when it does not formulate them or fails to specify the performance criteria to be met in the later environmental review. Because this issue was at least partially moot given the court’s conclusions regarding defects in the EIR’s air quality analysis, the court simply concurred with the petitioners’ contention that all but one of EIR’s mitigation measures had been improperly deferred.

The court made two rulings regarding impacts to agricultural land. In finding for the petitioners, the court held that SANDAG impermissibly relied on a methodology with “known data gaps” to describe the agricultural baseline, as the database did not contain records of agricultural parcels of less than 10 acres nor was there any record of agricultural land that was taken out of production in the last twenty years.  This resulted in unreliable estimates of both the baseline and impacts. However, under de novo review, the court found that the petitioners had failed to exhaust their remedies as to impacts on small farms and the EIR’s assumption that land converted to rural residential zoning would remain farmland. While the petitioners’ comment letter generally discussed impacts to agriculture, it was not sufficiently specific so as to “fairly apprise” SANDAG of their concerns.

Justice Benke made a detailed dissent. Under Benke’s view, the superseded 2011 EIR is “most likely moot” and in any event, that determination should have been left to the trial court on remand. This conclusion is strengthened, when, as here, the remaining issues concern factual contentions. As a court of review, their record is insufficient to resolve those issues.

In Monterey Coastkeeper v. Monterey Water Resources Agency (2017) ___ Cal.App.5th ___ (Case No. H042623), the Sixth District Court of Appeal reversed the trial court’s judgment granting Monterey Coastkeeper’s petition for writ of mandate for violation of section 13260 of the Porter-Cologne Act (failure to file a report of waste discharge), holding that the petitioner had failed to exhaust its administrative remedies.

The Monterey County Water Resources Agency (MCWRA) is a flood control and water agency responsible for operation of the Reclamation Ditch and the Blanco Drain, which collects agricultural wastewater and eventually discharges into surface waters that are subject to the Porter-Cologne Act. Petitioner Monterey Coastkeeper alleged that the MCWRA was in violation of section 13260 of the Porter-Cologne Act for failing to submit a report of waste discharge to the Regional Water Quality Control Board (RWQCB) as required under Porter-Cologne.

Petitioner claimed that it did not have an administrative remedy because the Porter-Cologne Act did not have a defined procedure to administratively pursue grievances for failure to file a report of waste discharge. The court disagreed. It stated that the Porter-Cologne Act expressly gives the RWQCB the authority to require a report of waste discharge, and to hold a discharger civilly liable for failure to do so. The Porter-Cologne Act further provides that the RWQCB may be requested to act, and their decision is appealable to the State Water Resources Control Board. The State Water Resources Control Board decision or order is then subject to judicial review by a writ of mandate. The court found that petitioner could have followed these statutory procedures—but it had not done so. The court held that petitioner had failed to exhaust its administrative remedies.

Due to its failure to exhaust, the court further found that petitioner’s claim for breach of duty under the public trust doctrine was unripe. The court held that because petitioner had not initiated the administrative review process, there was no administrative record upon which to base a decision as to whether the public trust doctrine had been violated.