Tag: Writ of Mandate

THE END OF LOTUS; FIRST DISTRICT HOLDS RES JUDICATA BARS THIRD CEQA LAWSUIT CHALLENGING HIGHWAY CONSTRUCTION PROJECT IN RICHARDSON GROVE STATE PARK

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In Bair v. Department of Transportation (Mar. 26, 2026, A172681) __ Cal.App.5th __ (Bair II), the First District Court of Appeal held that res judicata barred a third lawsuit alleging that Caltrans failed to comply with CEQA before approving highway construction near old-growth redwood trees. Because Bair II challenged Caltrans’s compliance with a writ issued in an earlier lawsuit, the petitioners’ failure to appeal the order discharging the writ barred them from relitigating the issue in the new lawsuit.

Key Takeaway

  • Res judicata may preclude CEQA petitioners from challenging an agency’s compliance with a writ of mandate in a subsequent action.

Background

The case stems from the long-running litigation involving a highway project to modify a one-mile segment of Highway 101 through old-growth redwood trees in Richardson Grove State Park in Humboldt County. Since Caltrans first certified an EIR and approved the project in 2010, the project has been the subject of three CEQA lawsuits.

In the first lawsuit, Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, the appellate court held that the EIR failed to adequately analyze impacts on redwood trees and ordered issuance of a writ of mandate requiring Caltrans to comply with CEQA, consistent with the opinion. In response, Caltrans prepared an addendum with a revised analysis, determined that the project would not result in significant impacts, and, in 2017, recertified the EIR and approved the project.

A second challenge followed. In Bair v. Department of Transportation (Super. Ct. Humboldt County, 2019, No. CV170543) (Bair I), the trial court found a procedural violation—Caltrans had not circulated the addendum for public review—and issued a second writ. Caltrans then circulated the EIR and addendum, responded to public comments, and in 2023 again recertified the EIR and addendum and approved the project for a third time.

After this third approval, Caltrans sought discharge of both the Lotus and Bair I writs. Petitioners opposed and, at the same time, filed a third lawsuit (Bair II), again challenging the adequacy of the addendum’s revised analysis. The trial court granted Caltrans’s motion to discharge the Lotus and Bair I writs, and petitioners did not appeal that ruling.

In Bair II, Caltrans argued that the order discharging the writs conclusively established that the addendum complied with CEQA and barred further challenge under res judicata. The trial court agreed and denied the Bair II petition. Petitioners appealed.

Appellate Decision

The appellate court affirmed. The court explained that the Bair II petition was, in substance, an attempt to relitigate whether Caltrans had complied with the Lotus writ, and that in discharging that writ, the trial court necessarily determined that Caltrans’s revised environmental analysis satisfied CEQA. That determination, once final, could not be revisited in a subsequent action.

In reaching this conclusion, the court relied on Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, which recognized that a final order resolving compliance with a CEQA writ can have a claim-preclusive effect. As in Silverado, the proper vehicle for challenging the adequacy of an agency’s return to the writ is in the writ proceeding itself—and, if necessary, by appealing the discharge order.

Petitioners argued that the adequacy of the addendum’s analysis of impacts to redwood trees had not actually been decided because the trial court did not review the full administrative record or evaluate the substance of that analysis before discharging the writs. The appellate court rejected this argument, reasoning that it was “just another way of saying the court erred when it discharged the Lotus writ.” In other words, petitioners’ challenge went to the correctness of the discharge order—not whether the issue had been decided. As petitioners did not pursue that argument by appealing the order discharging the writ, the discharge order was final and thus precluded further litigation of the issue.  

Louisa I. Rogers & Nina Berglund

Second District Court of Appeal Holds that, On Direct Appeal, a Reviewing Court Cannot Issue a Writ of Mandate and Supervise Compliance with the Writ

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In Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452, a partially published opinion on remand from the California Supreme Court (Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal. 4th 204), the Second District reversed in part and affirmed in part the trial court’s judgment.

In the non-published portions of the opinion, the Second District reversed the trial court’s decision where it was inconsistent with the opinion of the California Supreme Court. The Second District reversed on the issues of significance criteria selection and baseline calculation, and affirmed on the issues of cumulative greenhouse gas emission impacts and two mitigation measures that would violate Fish and Game Code section 5515. The Second District also reconsidered its previous ruling in the case on two issues in light of the California Supreme Court’s holding that comments filed after certification of the joint EIR/EIS were timely. The Second District considered comments and the responses thereto, but stuck to its original conclusion that the findings on Native American Cultural Resources and impacts of dissolved copper on steelhead smolt were supported by substantial evidence.

In the published portion of the opinion, the Second District considered whether it had the authority to, instead of remanding the matter to the trial court, issue its own writ of mandate to the Department of Fish and Wildlife (DFW) and supervise compliance. The developer/real party in interest requested that the court do so, and its motion was supported by DFW. The developer suggested that the California Supreme Court’s opinion in this case and the language of Public Resources Code section 21168.9 would allow the appellate court to do so. They also argued that the general principle of expedient resolution to CEQA litigation supported the appellate courts ability to issue its own writ of mandate.

The Second District looked first at the plain language of section 21168.9 and determined that there was some ambiguity in the statute’s use of the term “appellate court” because courts of appeal do have original mandate jurisdiction in some cases. But the court’s exploration of the legislative history of section 21168.9 found nothing to suggest that the legislature intended appellate courts on direct appeal to have the authority to issue writs of mandate.

The court then examined the lay of the land, in terms of CEQA and appellate practice, when section 21168.9 was adopted in 1984. According to the Second District, “the practice in 1984 … was for administrative mandate petitions to be filed in superior court,” and no statute provided appellate courts with authority to hear direct CEQA challenges at that time. Further, the Code of Civil Procedure—then and now—limits an appellate court to affirming or reversing and modifying the lower court’s judgment. And, after making its decision, the appellate court must remand the matter back to the trial court. The court found nothing to suggest that the legislature intended to alter this procedure when it enacted Public Resources Code section 21168.9. The court also stated that there is a presumption against repeal by implication, which applied to the Code of Civil Procedure sections governing appellate review.

The Second District concluded there was no authority for appellate courts on direct appeal to issue writs of mandate. Given that lack of authority, there was no way for appellate courts to supervise compliance either. Lastly, the court found that section 21168.9, subdivision (b) was clear in its requirement that trial courts retain jurisdiction over the lead agency to ensure compliance with the writ of mandate.