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U.S. Supreme Court Sides with Property Owners in Dispute Over Abandoned Railroad Right of Way

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Marvin M. Brandt Revocable Trust v. United States, ___ U.S. ___ (2014) No. 12-1173, March 10, 2014.

In a case that piqued the interest of many throughout the West, including property owners and outdoor enthusiasts, the U.S. Supreme Court sided with a Wyoming property owner in a dispute over an abandoned railroad right of way.  The case presented the question of what happens to a railroad’s right of way granted under the General Railroad Right-of-Way Act of 1875 when the railroad abandons it: does it go to the Government or to the private party who acquired the land underlying the right of way?  Reversing the 10th Circuit Court of Appeals, the Supreme Court ruled that the railroad’s abandoned right of way reverts to the private landowner.

The Supreme Court’s opinion begins with some extensive history regarding the settlement of the West and the federal land grant policies led to the present predicament. The opinion explained that to encourage early settlement and development of the West, Congress first passed acts giving railroad companies fee title to vast stretches of land (the land acquired by the Central Pacific – later the Southern Pacific – and the Union Pacific in exchange for their construction of the Transcontinental Railroad is a good example), but that following public complaints about the amount of land being given away, it passed the General Railroad Right–of–Way Act of 1875 to provide railroad companies only “right[s] of way through the public lands of the United States.”  I.e., just the right to use the land – not fee title. One such right of way, granted to a railroad company in 1908, crosses land that the United States later conveyed to the Brandt family in a 1976 land patent. That patent specifically stated that the land was granted subject to the railroad’s rights in the 1875 Act, but it did not specify what would occur if the railroad later relinquished those rights. Years later, a successor railroad abandoned the right of way with federal approval. In 2006, the Government sought a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way, including the stretch that crossed the land conveyed in the 1976 Brandt patent.

Petitioners contested the claim, asserting that the right of way was a mere easement that was extinguished when the railroad abandoned it, so that Brandt now enjoyed full title to his land without the burden of the easement. The Government countered that the 1875 Act granted the railroad something more than a “mere easement,” and that the United States retained a reversionary interest in that land once the railroad abandoned it.

The 10th Circuit Court of Appeals sided with the Government. Although it acknowledged a division among lower courts regarding the nature of the Government’s interest, if any, in abandoned General Railroad Right-of-Way Act of 1875 rights of way, it concluded based on 10th Circuit precedent that the United States had retained an “implied reversionary interest” in the right of way, which then vested in the United States when the right of way was relinquished. The Supreme Court reversed.

The Supreme  Court rejected the Government’s position, in large part because the Government had won when it argued the opposite before the Supreme Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States (1942) 315 U.S. 262. There, the Government argued, and the Supreme Court agreed, that the 1875 Act granted nothing more than an easement to the railroad companies. Under Great Northern, therefore, the railroad had only an easement in its right of way over the land.

The Supreme  Court  then explained that, when the United States patented the parcel to the Brandt family in 1976, it conveyed fee simple title to that land, “subject to those rights for railroad purposes” that had been granted to the railroad. The United States did not reserve to itself any interest in the right of way in that patent.

After determining that the interest granted to the railroad was nothing more than an easement and that the U.S. retained no interest, the Court noted that the essential elements of easement, including what happens when they cease to be used, are well settled as a matter of property law.  Applying basic common law principles, the Court determined that when the railroad abandoned the right of way, the easement referred to in the Brandt patent terminated. Brandt’s land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the parcel.

Justice Sotomayor issued a dissenting opinion arguing that the majority improperly brushed off pre- Great Northern precedent suggesting that the United States retained a reversionary interest in railroad rights of way and, to the extent the majority regarded Great Northern as having abrogated those precedents, it placed on Great Northern more weight than that case could bear.  She also claimed that the majority erred by relying on basic common law principles without recognizing that railroad rights of way were not always governed by the ordinary common-law regime.

Justice Sotomayor also pointed out the negative practical implications of the majority’s opinion, claiming that it “undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation.  And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”

Echoing Justice Sotomayor, many rails-to-trails organizations have described the decision as a serious set-back to the hiking and bicycling trails system envisioned by Congress when it enacted the National Trails System Improvements Act of 1988; however, the decision appears to apply only to privately-held land transferred by the United States subject to an existing railroad easement that is subsequently abandoned.  Many thousands of miles of trails along former railroad routes are situated on federal, state or local public lands, or on routes that were originally conveyed to the railroad companies in fee, rather than as easement. The decision does nothing more than confirm what has for centuries been the law of easements: an easement is a right to use another’s land for a specified purpose, and when the holder of the easement expressly or impliedly abandons its use, the easement no longer encumbers the underlying land.

Sacramento Superior Court finds narrow CEQA violation in EIR prepared to address Monterey Amendments to operation of the State Water Project.

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Continuing the theme of water-related issues in California, the Sacramento County Superior Court, Judge Timothy Frawley presiding, recently addressed litigation concerning the operation of the State Water Project. On March 5, 2014, the court released its rulings in the cases Central Delta Water Agency, et al. v. California Department of Water Resources, et al. (Case No. 34-2010-80000561) and Rosedale-Rio Bravo Water Storage District, et al. v. California Department of Water Resources. (Case No. 34-2010-80000703.) The litigation in these cases involved CEQA challenges brought against an EIR prepared by the Department of Water Resources (“DWR”) for the project known as the “Monterey Amendments to the State Water Project Contracts (Including Kern Water Bank Transfer) and Associated Actions as Part of a Settlement Agreement.”

Background and History

The history of the challenged EIR stretches back to the 1960’s and the inception of the State Water Project (“SWP”). The SWP was structured so that its costs for operation are borne primarily by various public water agencies (“SWP contractors”) that contract with the state to receive SWP water. The obligations for sale, delivery, and use of SWP water were set forth in long-term contracts with these SWP contractors. As many may know, the original long-term contracts were overly optimistic when estimating the water supply which would be available at full build-out of the SWP. The original contracts anticipated that 4.2 million acre-feet of water would be available per year, but actual, reliable water supply from the SWP is now in the vicinity of 2 to 2.5 million acre-feet annually. So by the early 1990’s, the SWP was increasingly unable to fulfill demand for water deliveries.

In response to shortages in the SWP supply exacerbated by drought, DWR and the SWP contractors engaged in extensive negotiations in the city of Monterey, California. The negotiations resulted in substantial revisions to the SWP long-term water supply contracts. These revisions became known as the “Monterey Amendment.”

The Monterey Amendments established six primary objectives: (1) resolve conflicts and disputes among SWP contractors regarding water allocations and financial responsibilities for SWP operations; (2) restructure and clarify SWP water allocation procedures and delivery during times of shortage and surplus; (3) reduce financial pressures on agricultural contractors in times of drought and supply reductions; (4) adjust the SWP’s financial rate structure to more closely match revenue needs; (5) facilitate water management practices and water transfers that improve reliability and flexibility of SWP water supplies in conjunction with local supplies; and (6) resolve legal and institutional issues related to storage of SWP water in Kern County groundwater basins, and in other areas.

The Monterey Amendments included numerous  elements to achieve these objectives. For example, the so-called “urban preference” was eliminated in favor of reductions in water deliveries borne proportionately by urban and agricultural users, water rates were restructured, and various other changes were made to the way the SWP is administered. Relevant to the litigation here, the Monterey Amendment also required DWR to transfer the “Kern Water Bank” property to the Kern County Water Agency.

In 1995 the Central Coast Water Authority, as lead agency, completed and certified a final EIR (“Monterey Agreement EIR”) studying the environmental impacts of the extensive amendments to the SWP water supply contracts.  Soon after, the Planning and Conservation League and others challenged the sufficiency of this EIR (the “PCL litigation”). Among other allegations the plaintiffs argued that DWR should have been the lead agency for the purposes of preparing the EIR, and that the EIR inadequately defined the “project”. The PCL litigation reached the appellate court, where the court determined that DWR should have functioned as lead agency, and that the EIR was defective in at least one respect. The court ordered that DWR prepare a new EIR.

Following remand, the parties to the PCL litigation entered into a settlement agreement (the “Settlement Agreement”) governing how the new EIR would be prepared. The parties agreed that the proposed project to be analyzed in the new EIR would be defined during the scoping process, but at a minimum, would analyze the Monterey Amendment and certain additional terms agreed to in the Settlement Agreement. With this agreed scope the project became known as the “Monterey Plus” project, and the new EIR for the project was referred to as the “Monterey Plus EIR.”

DWR issued a draft EIR in October 2007 and certified a final EIR for the Monterey Plus project on February 1, 2010. The project studied in the EIR included all of the objectives and elements of the Monterey Amendment, along with the objectives and elements of the Settlement Agreement. The baseline used in the EIR was the continued operation of the SWP in accordance with the pre-Monterey Amendment water supply contracts. This means the EIR used 1995 as the baseline year to measure existing conditions. The EIR also provided analyses using baselines adjusted for 2003 and 2020 to account for changes in water supply and transfers resulting from decisions unrelated to the project. Since the proposed project was continued operation of the SWP under the Monterey Agreement, the EIR identified the no project alternative as a return of operation to the pre-Monterey Amendment water supply contracts. To account for uncertainty in determining what, exactly, these pre-amendment conditions would look like, the EIR analyzed four different “no project” scenarios.

The EIR determined that the project did not have any significant impacts from 1996 to 2003, but might cause some potentially significant impacts during the period from 2003 to 2020. These impacts could include impacts to biological, cultural, and paleontological resources resulting from groundwater recharge activities. The EIR also identified potentially significant growth-inducing impacts resulting from the delivery of additional SWP water to urban contractors. Even though DWR incorporated mitigation measures for these impacts, they could remain potentially significant. The EIR also determined that the project may result in potentially significant impacts due to additional pumping from the Delta and from the construction of additional ponds on the Kern Water Bank lands. But DWR incorporated mitigation measures which it determined would reduce these impacts to less-than-significant levels.

DWR recorded a notice of determination regarding its decision to adopt findings and determinations, a statement of overriding considerations, and a mitigation, monitoring, and reporting program for the project. On June 3, 2010, DWR then filed a return on peremptory writ of mandate, requesting that the trial court discharge the 2003 writ of mandate that had required the new EIR. The very same day, Petitioners Central Delta Water Agency, South Delta Water Agency, and various environmental organizations led by the Center for Biological Diversity, filed a petition for writ of mandate challenging the sufficiency of DWR’s new Monterey Plus EIR under CEQA. The Petitioners also challenged the validity of the agreement to transfer the Kern Water Bank property from DWR to the Kern County Water Agency.  At the same time, the Rosedale-Rio Bravo Water Storage District and the Buena Vista Water Storage District, each of which operates a water bank system in the vicinity of the Kern Water Bank, filed a separate CEQA action, focusing narrowly on issues of operation of the Kern Water Bank.

The Central Delta Water Agency Litigation

For the most part, the trial court rejected the claims brought by the petitioners. Notable for CEQA practitioners, the trial court declined to consider two of Petitioner’s arguments at the outset for failure to adequately summarize the record. Specifically, Petitioners cited to only a single page of the Monterey Plus EIR’s lengthy discussion regarding the issue of “paper water” (a term used to describe contractual water that may not actually exist as “wet water,” e.g., contractual water that may be beyond the contracting supplier’s ability to actually supply it) and failed to adequately summarize the evidence in the record addressing the Project’s climate change impacts.

Petitioners’ first primary challenge involved the project description element of the Monterey Plus EIR. Petitioners alleged the project description did not comply with CEQA’s requirements that it be accurate and stable. As noted above, the EIR described the Project as continued operation of the SWP under the Monterey Amendment, for which no permits or approvals are required. Petitioners argued this description of the project was confusing because it was unclear whether operation under the Monterey Amendment was the proposed project, or actually, the status quo. Petitioners submitted that this description concealed the true scope of the project. The court rejected this argument, but not without noting the unique factual circumstances of the case, a recurring theme throughout the trial court’s opinion.

The trial court stated that the litigation presented an unusual circumstance for a CEQA case because the proposed project was actually a standardized contract amendment, previously approved and executed. The court pointed out that DWR was operating the SWP pursuant to the Monterey Amendment while the new EIR was being prepared. Therefore, the Monterey Plus EIR accurately described the result of carrying out the proposed project being studied: continued operation of the SWP pursuant to the Monterey Amendment. Petitioners pointed out that this approach essentially resulted in an EIR analyzing the impacts of a decision that had already been made.

The court agreed, generally, with the assertion made by Petitioners. Under CEQA, the approach taken by DWR to prepare the Monterey Plus EIR should usually not be allowed. But in this case, the parties to the Settlement Agreement, certified by the court, approved preparation of a remedial EIR to analyze the impacts of the Monterey Amendments. Any argument that the court should have invalidated the Monterey Amendment approvals, rather than allowing DWR to continue operating under them, was time-barred. The time for petitioners to make this objection was when the Settlement Agreement was approved and the writ issued. Considering these unique circumstances, the trial court could not find that DWR abused its discretion by describing the project as continued operation of the SWP under the Monterey Amendment and Settlement Agreement.

Petitioners next argued the baseline selected in the EIR was flawed because the baseline omitted provisions of water supply contracts eliminated by the Monterey Amendment. The trial court quickly dispensed with this and other arguments attacking the baseline in the EIR. The EIR studied both existing baselines for years 1995 and 2003, and a future baseline at year 2020 to provide a complete assessment of the Monterey Amendment’s impacts. This choice of baseline was therefore supported by substantial evidence and entirely reasonable under the circumstances. Additionally, DWR’s approach was consistent with the Court of Appeal’s opinion in the PCL litigation. So again, considering the unique circumstances, DWR did not abuse its discretion by preparing an EIR in accordance with the prior Settlement Agreement and court order.

Similarly, the trial court found the range of alternatives analyzed in the EIR reasonable under the circumstances, despite Petitioners’ assertion that the EIR did not evaluate a true no-project alternative. As noted above, DWR analyzed four different no-project scenarios in the EIR. DWR adopted this approach because it identified a good faith disagreement as to what exactly conditions prior to the Monterey Amendments would look like. DWR had continued to operate the SWP with the Monterey Amendments in place even after litigation was initiated following approval of the amendments in 1995 (and it is 2014 at the time of this entry—not an insignificant passage of time). The trial court found this approach to analyzing a no-project alternative to be reasonable. The EIR provided sufficient information to the public and decision makers regarding the impacts of various potential scenarios under pre-Monterey Amendment conditions.

The trial court also rejected an argument CEQA practitioners frequently encounter: deferral of mitigation. The petitioners argued DWR improperly deferred mitigation by finding that impacts on Delta aquatic life would be reduced to a less-than-significant level after compliance with existing and future regulatory permits and processes. However, the court declared this was not a situation where an agency relied on references to compliance with existing laws to avoid compliance with CEQA. The Monterey Plus EIR conducted the appropriate impact analysis and determined that the project could have significant impacts on the delta. But DWR operations would be subordinate to existing laws and regulatory requirements including applicable SWRCB Orders, Army Corps of Engineers permits, Biological Opinions, endangered species take permits, habitat protection plants, etc. The court determined it was appropriate for DWR to rely on commitment to this existing regulatory scheme to mitigate the Project’s impacts. In fact, the court suggested it may not have even been feasible for DWR to propose additional mitigation measures separate from the existing regulatory scheme.

Finally, the court upheld the DWR’s analysis of the project’s growth-inducing impacts in the Monterey Plus EIR. The EIR concluded that the Project could potentially induce growth. DWR identified contractors that could receive additional water, calculated the amount of additional water that could be made available, and estimated the number of additional residents this new water could support. The EIR also discussed potential economic development resulting from this potential increase in population. Petitioners argued the EIR should have conducted additional, site-specific analyses of the Project’s potential growth inducing impacts, but the court found the generalized level of detail in DWR’s analysis sufficient under the circumstances and compliant with CEQA.

The Kern Water Bank Issue

The Central Delta Water Agency petitioners also challenged the portion of the Monterey Plus EIR dealing with the transfer of the Kern Water Bank property. As part of the Monterey Amendment, the Kern Water Bank property would be transferred from DWR to the Kern County Water Agency for the express purpose of developing and operating a groundwater bank.

The Central Delta Water Agency petitioners argued that the EIR failed to sufficiently describe or analyze the Water Bank’s future operations. Instead, the petitioners argued the analysis was limited to the historical operation of the water bank during the unusually wet period from 1995 to 2004. The trial court agreed the EIR insufficiently analyzed operation of the water bank, as the court explained in further detail in its Rosedale opinion.

The Rosedale-Rio Bravo Litigation

The Rosedale-Rio Bravo Water Storage District petitioners argued that the Monterey Plus EIR failed to analyze the use and operation (as opposed to merely the transfer) of the Kern Water Bank as a component of the project. Specifically, the Rosedale petitioners argued the EIR failed to adequately discuss, analyze, and mitigate potential hydrology and water quality impacts associated with the use and operation of the water bank. The trial court agreed, noting the defects in the EIR could be traced to its incomplete description of the project. The trial court pointed out that the EIR described this portion of the project as including only the transfer of the property. But the record unequivocally demonstrated that the project included not just the transfer, but also the “construction, operation and maintenance of the Kern Water Bank.”

The trial court concluded that the omission of relevant information regarding the use and operations of the Kern Water Bank was prejudicial. This omission precluded informed decision-making and informed public participation, as analysis of potential impacts associated with operation of the water bank was not included in the EIR. On this narrow ground, the Court granted the petitions in both the Rosedale and Central Delta Water Agency cases.

Conclusion

The court has ordered an additional hearing to be noticed by the parties, to discuss “an appropriate remedy for the CEQA violation,” presumably pursuant to Public Resources Code Section 21168.9(b).  This CEQA statute encourages courts to fashion remedies no broader than necessary to cure violations, i.e., any remedy “shall include only those mandates which are necessary to achieve compliance with [CEQA] and only those specific project activities in noncompliance with [CEQA].”

Here, the court identified violations in only a narrow area of the Monterey Plus EIR dealing with the Kern Water Bank. It seems reasonable that DWR could argue for, and the court would accept, a narrow remedy upholding the majority of the Monterey Plus EIR while requiring additional, focused analysis on the operation of the Kern Water Bank.

CA Legislature and Governor Brown Enact Extensive Drought Relief Plan

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In response to the unprecedented drought the State is facing in 2014, the California Legislature recently enacted emergency drought legislation. The two measures, SB 103 and SB 104, received bipartisan support in both the Senate and Assembly before being signed into law by Governor Jerry Brown on Saturday, March 1, 2014.

The bills allocate substantial funds, approximately $687.4 million, to support drought relief in drought-afflicted communities throughout the State. The dispersion of more than $500 million in existing water bond funding will be expedited for local projects already planned or under way. Examples of these projects include improvement of storm water capture, expanded use of recycled water, enhanced groundwater management and recharge, and expanded water conservation. Other funds, including revenue from the AB 32 cap-and-trade auctions, will also be made available for drought-relief efforts through provisions in SB 103 and SB 104.

The bills include various other provisions beyond simple monetary relief. For example, sanctions have been enhanced for certain conduct, like illegal diversion of water, during drought years. The bills also direct the California Department of Public Health to adopt new groundwater replenishment regulations by July 1, 2014. This leaves only four months for the department to draft and adopt new regulations—a tall order for any agency engaging in rulemaking bound to impact many interests. And in California under current conditions, no topic is likely to be much more controversial than water supply.  After all, in the West, water is what we fight over.

Second District Court of Appeal Finds Museum Remodel Exempt from CEQA

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Highland Park Heritage Trust v. City of Los Angeles, Case No. B242930 (Feb. 18, 2014), unpublished

On February 18, 2014, in an unpublished decision, the Second District Court of Appeal denied petitioners’ request to set aside approval of the Autry Museum’s internal remodeling project. The court held the city of Los Angeles did not abuse its discretion in determining the project was exempt from CEQA.

In 2003, the Autry Museum merged with the Southwest Museum and thereafter discovered that the Southwest site was unsuitable for housing the museum collection. Autry decided to move the collection from the Southwest’s Arroyo Campus in Mount Washington to Autry’s Griffith Park Campus. At first, Autry intended to expansively extend the external footprint of its museum, but withdrew the plan after it was met with public controversy and delays. Autry replaced this proposal with a less ambitious plan to replace 18,000 square feet of the first floor of the museum. The City of Los Angeles approved this new project and determined it was categorically exempt from CEQA. The state later awarded Autry a $6.6 million grant to redesign the interior of the Griffith Park Museum.

Local residents and preservationists sought to set aside the approved collection relocation, claiming that the city had a duty to support the Southwest Museum as a cultural resource and preserve the Arroyo Campus location. Petitioners claimed that the project was not exempt under CEQA, and that the project was improperly piecemealed from a greater project. The trial court held for the city, and petitioners appealed.

The Court of Appeal held that whether the project could be considered a piecemealed section of a larger project was irrelevant where the project was exempt from CEQA. Under Class 1 exemptions, certain projects involving interior alterations to an existing facility are categorically exempt from CEQA, unless they fall under an exception whereby there are unusual circumstances creating a reasonable probability that the activity would have a significant impact on the environment. The court found no such exception here. The court held that moving the artifacts from the Southwest collection to the Autry Museum would not have a significant impact on the geographic environment of that museum or its surroundings, and the objects themselves were not site-specific to the Arroyo location. The court also held that the project was not inconsistent with the Northeast Los Angeles Community Plan because the plan’s goal to preserve and protect the Southwest museum pertained to the building itself rather than its contents. Thus, the city had not abused its discretion in approving the project.

Ninth Circuit Court of Appeals Rejects NEPA Challenge to High-Speed Rail Project in Hawaii

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HonoluluTraffic.com v. Federal Transit Administration (9th Cir. 2014) __F.3d __ (Case No. 13-15277)

The litigation involved a challenge to a 20-mile, high-speed rail project that would traverse from the western portion of Oahu through the downtown area of Honolulu, Hawaii. After considering various long-range alternatives for federally funded transportation projects, the city of Honolulu ultimately focused on a “Fixed Guideway” public transport system for the project. The project was designed to improve transportation and relieve traffic congestion in Honolulu – a persistent problem and controversial topic in Hawaii and on the island of Oahu in particular.  According to the Ninth Circuit’s opinion, Honolulu is the second-most congested metropolitan area in the nation.

Plaintiffs were a consortium of interest groups and individuals opposing the project. They filed the action in 2011 against FTA, the U.S. Department of Transportation, the city and county of Honolulu, and various federal and local administrators. Plaintiffs raised challenges under the NEPA and other federal laws.  The district court granted summary judgment to the defendants on the NEPA claims and the Ninth Circuit affirmed.

Plaintiffs’ challenges under NEPA were directed principally at the choice of the steel-wheel-on-steel-rail Fixed Guideway system for the project.  Plaintiffs claimed that the defendants unreasonably restricted the project’s purpose and need and did not consider all reasonable alternatives as required under NEPA and its regulations.

The court first addressed Plaintiffs’ argument that the project objectives stated in the EIS were too narrow. Plaintiffs argued that the objectives were so narrowly defined that only one alternative would accomplish them, and therefore, there was no real consideration of alternatives.  The Ninth Circuit disagreed.  The court noted that the project objectives, as stated as the purpose and need statement in the EIS, were defined in accordance with the statutorily mandated transportation plan that preceded the EIS – the 2004 Oahu Metropolitan Planning Organization, Regional Transportation Plan (“2004 ORTP”).  The 2004 ORTP had concluded that a high-capacity, high-speed transit project connecting west Oahu with downtown Honolulu was necessary to implement Oahu’s land use policies. It also identified the Fixed Guideway system as a central component of that plan.  The court held that, viewed in its statutory context, the project’s objectives were not so narrowly defined that only one alternative would accomplish them.  The statement of purpose and need was broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project.  The Ninth Circuit, therefore, agreed with the district court’s conclusion that “because the statement of purpose and need did not foreclose all alternatives, and because it was shared by federal legislative purposes, it was reasonable.”

The court next addressed Plaintiffs’ claim that the EIS did not properly consider all reasonable alternatives and should have considered alternatives that the state had earlier rejected.  Early in the process, the city had prepared an Alternatives Assessment (AA) to narrow the various alternatives that would be included in the EIS.  The Ninth Circuit noted that an AA may be used as part of the NEPA process as long as it meets certain requirements. Because those requirements were satisfied, the court found no problem with the AA.  The court also noted that alternatives that were previously rejected by an agency in prior studies do not need to be discussed in an EIS.  According to the court, Plaintiffs’ real quarrel was not with the use of an AA generally, but rather that the process failed to consider Plaintiffs’ proposed three-lane Managed Lanes Alternative (a new roadway for busses and other high-occupancy vehicles).  A similar alternative, however, had been considered and rejected in the AA for cost reasons.  The court determined that the cost analysis in the AA was reasonable and that the three-lane Managed Lanes Alternative would be even more costly than the alternative rejected in the AA.  Therefore, the court held that three-lane Managed Lanes Alternative did not need to be included in the EIS.

Plaintiffs’ final argument was that the defendants had improperly excluded a light-rail alternative from the EIS.  The court determined, however, that the defendants properly relied on the AA to reject alternatives including light-rail.  Ultimately, the court held that the EIS’s identification of project objectives and analysis of alternatives satisfied NEPA’s requirements.

California Supreme Court Moves High-Speed Rail Request to Court of Appeal

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The California Supreme Court ordered the Third District Court of Appeal to undertake an expedited review of two trial court rulings concerning the financing plan for California’s High-Speed Rail project, by transferring the state’s petition for writ of mandate to the lower court. The petition was filed by the state in late January asking the Supreme Court to step in and prevent the two recent lower court rulings from derailing construction of the High-Speed Rail project.  According to the state, the challenged trial court rulings “cast a cloud of uncertainty” over the project and put at risk billions of dollars in federal grants. The state sent a direct request to the California Supreme Court because the normal appeals process, it claimed, would take too long given the time-sensitive nature of the project and its funding.

Although it declined to consider the petition directly, the Supreme Court recognized that the petition should be a priority and decided expeditiously by the Court of Appeal. The transfer order directed the appellate court to “expedite its consideration of this matter” and set an expedited briefing schedule for the parties.

Further information on the previous trial court rulings and the state’s petition to the California Supreme Court can be found in our previous blog post here.

Air Resources Board Releases Proposed AB 32 Scoping Plan

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On February 10, 2014, the California Air Resources Board released the proposed first update to the AB 32 Scoping Plan. The Scoping Plan is a key component of AB 32. It describes the strategies California will implement to reduce greenhouse gases to achieve the goal of reducing emissions to 1990 levels by 2020. The Scoping Plan was first considered by ARB in 2008 and, pursuant to AB 32, must be updated every five years.

The initial AB 32 Scoping Plan contains the main strategies used by California to reduce the greenhouse gases that cause climate change. The initial Scoping Plan has a range of GHG reduction actions which include direct regulations, alternative compliance mechanisms, monetary and non-monetary incentives, voluntary actions, market-based mechanisms such as a cap-and-trade system, and an AB 32 program implementation fee regulation to fund the program.

The proposed update highlights California’s progress toward meeting the near-term 2020 GHG emission reduction goals and builds on the initial Scoping Plan with new strategies and recommendations. It defines ARB’s climate change priorities for the next five years and sets the groundwork to reach California’s long-term climate goals, including an 80 percent reduction in GHG emissions by 2050. The new actions and strategies are intended to move the state farther along the path to a low-carbon, sustainable future.

The proposed update identifies eight key sectors for ongoing action: (1) energy; (2) transportation, fuels, land use and infrastructure; (3) agriculture; (4) water; (5) waste management; (6) natural lands (7) short-lived climate pollutants (such as methane and black carbon); and (8) green buildings. It explains that each of these sectors must play a role in supporting the statewide effort to continue reducing emissions. As steps are taken to develop a statewide target, sector targets will also be developed that reflect the opportunities for reductions that can be achieved through existing and new actions, policies, regulations and investments.

According to ARB’s press release, the proposed update incorporates the latest scientific consensus which indicates the need for accelerated emissions reductions in the coming decades to achieve climate stabilization.

The proposed update includes input from a range of key state agencies. It is also the result of extensive public and stakeholder processes designed to ensure that California’s greenhouse gas and pollution reduction efforts continue to improve public health and drive development of a more sustainable economy.

ARB is soliciting additional input before it considers the final version the update.  ARB will hold a public informational presentation on the proposed update at its February 20, 2014, meeting, that will include additional opportunities for stakeholder feedback and public input. ARB plans to hold a Board hearing in late-Spring 2014 to formally consider the Final Scoping Plan Update and environmental analysis.

The proposed Scoping Plan Update is available on the ARB website at:  http://www.arb.ca.gov/cc/scopingplan/2013_update/draft_proposed_first_update.pdf

Court of Appeal Finds Counsel’s Legal Research Lacking, Dismisses Claim

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In Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (Jan. 28, 2014) ___ Cal.App.4th ___, Case No. F066544, the Court of Appeal clarified that counsel may not claim ignorance of proper legal procedures after relying on a single treatise to the exclusion of case law and other secondary materials detailing those procedures.

On January 28, 2014, the Fifth District Court of Appeal upheld the trial court’s dismissal of Protect Agricultural Land’s (PAL) action challenging the annexation of unincorporated land to the City of Ceres. The court found that PAL had failed to comply with certain procedures required by the Cortese-Knox-Hertzberg Reorganization Act for reverse validation actions. The trial court had not found good cause for failure to comply, and the Court of Appeal found substantial evidence supporting the trial court’s decision.

PAL sought to set aside the city’s annexation of 960 acres located in unincorporated Stanislaus County. The trial court found it could not overturn the completed annexation because PAL had not complied with service requirements applicable to reverse validation actions. While a local agency formation commission’s (LAFCo’s) annexation determination may be challenged before land is annexed, the validity of a completed annexation may only be challenged by an in rem proceeding under the validating statutes. Under those statutes, if a public agency does not pursue a validation action, any interested person may file a reverse validation action, subject to strict publication and form requirements. A failure to abide by these procedures is excusable only upon a showing of good cause.

In this case, PAL erroneously handled the summons, but argued its error should be excused for good cause. The trial court rejected this argument because it found the legal research conducted by PAL’s counsel had been inadequate. On appeal, the court noted that “an honest and reasonable mistake of law on a complex and debatable issue is excusable and constitutes good cause for relief.” However, “ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” Here, PAL’s counsel claimed ignorance of the publication procedures because those procedures were not mentioned in the treatise counsel consulted. The court conducted its own research and found that case law, the LAFCo website, and other treatises mentioned the procedural requirements. It therefore rejected PAL’s claim of excusable error.

The court did not address PAL’s substantive claims because it found they had to be brought pursuant to the validation statutes. Thus, the court did not decide whether PAL had stated a cause of action under CEQA or the merits of such an action.

First District Court of Appeal Strikes Down Portions of Caltrans EIR

General Posted by   

Lotus v. Dept. of Transportation (Jan. 30, 2014) ___ Cal.App.4th ___, Case No. A137315

On January 30, 2014, the First District Court of Appeal struck down portions of a Caltrans EIR evaluating redwood tree removal on a stretch of U.S. Route 101. The court found the agency’s environmental review insufficient for failing to properly evaluate the impacts on root systems of old growth trees bordering the roadway.  The opinion was certified for partial publication.

Caltrans sought to widen parts of Route 101 in Richardson Grove State Park because the narrow, windy roads did not meet current design standards and prevented large trucks from easy access to Humboldt County. The restriction on these trucks, according to the agency, hindered profits and competition for businesses in Humboldt. The EIR for the project described the proposed activities as “minor road adjustments including realignments, curve corrections, and shoulder widening” and “culvert improvements and repaving the roadway.” The project’s environmental impacts included tree removal and potential damage to tree roots caused by excavation and fill. The EIR found that only six redwoods – none of them old growth redwoods – would be removed. About forty other trees in the park would potentially have fill place over their roots.

The EIR described measures to lessen these impacts, including restorative planting and invasive plant removal. The analysis concluded the project would not result in any significant environmental impacts with the implementation of these “special construction techniques.”

The trial court did not believe Caltrans violated CEQA simply by taking into account mitigation measures in determining that the project would have no significant effects. But it held that where an agency decides to incorporate mitigation measures into its significance determination and relies on those measures in finding no significant effects, the agency must treat those measures as required. Consequently, the court ordered Caltrans to show whether it had adopted a mitigation monitoring or reporting program. On appeal, the court did not think the monitoring solution sufficient to cure the EIR’s deficiencies.

The Court of Appeal found that the EIR adequately described the project’s environmental setting and scope. The general description of the project’s technical characteristics aligned with the Guidelines’ directive to not supply detail beyond what is needed to evaluate and review the environmental impacts. The court also found, however, that the EIR failed to comply with CEQA in its evaluation of the project’s impact on old growth redwood roots adjacent to the roadway. The EIR neither contained nor applied a standard of significance. This omission was compounded by the fact that Caltrans had incorporated mitigation measures into its project description and concluded that any potential impacts would be less than significant. “By compressing the analysis of impacts and mitigation measures into a single issue,” the court stated, “the EIR disregards the requirements of CEQA.”

In conclusion, the court found that the EIR suffered from “structural deficiency” due to its failure to discuss significant impacts apart from mitigation measures and thus to consider whether other mitigation would be more effective. The court ordered Caltrans to correct the deficiencies in the EIR and to recirculate the document if the agency found it necessary under CEQA standards.

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