ARCADIA v. STATE WATER RESOURCES CONTROL BOARD
Filed 12/14/10 Certified for publication 12/22/10 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| CITY OF ARCADIA et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants; NATURAL RESOURCES DEFENSE COUNCIL et al., Intervenors and Appellants. | G041545 (Super. Ct. No. 06CC02974) O P I N I O N |
STORY CONTINUE FROM PART I….
DISCUSSION
1. Standard of Review
When an administrative agency establishes regulations to implement
state policy its action is subject to review by traditional mandamus under Code of
Civil Procedure section 1085. (San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 1117-1118; City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at p. 1408.) Subdivision (a) of that statute declares “[a] writ of mandate may be issued by any
court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or
station . . . .” “‘“‘[R]eview is limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support,’” . . . [and] [t]he petitioner has the burden of proof to show that the decision is unreasonable or invalid as a matter of law. [Citation.] We review the record de novo except where the trial court made foundational factual findings, which are binding on appeal if supported by substantial evidence.’ [Citation.]” (City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at p. 1409.)
“If the agency’s action depends solely upon the correct interpretation of a statute, that is a question of law upon which the court exercises its independent judgment. [Citation.] In doing so, however, we are guided by the principle that an ‘“administrative [agency’s] interpretation [of controlling statutes] . . . will be accorded great respect by the courts and will be followed if not clearly erroneous.”’ [Citations.]” (Wirth v. State of California (2006) 142 Cal.App.4th 131, 138.)
2. Statute of Limitations
In overruling the State and Regional Boards’ demurrer to the petition, the trial court held “[t]he applicable state of limitations . . . is four years,” not Code of Civil Procedure section 338’s three-year period, finding “[t]here is no ‘liability created by statute’” because “[p]etitioners are challenging what they claim to be an illegal regulation that did not impact them . . . until . . . the last of several TMDLs were adopted . . . .” In its posttrial decision the court also noted the fifth, sixth, and eighth causes of action were not barred because they challenged defendants’ 2004 triennial review approval, sought “declaratory relief regarding future [b]asin [p]lan amendments,” and defendants’ failure to comply with their statutory duties constituted “a ‘continuing violation’ of an ongoing duty.’”
Both defendants and intervenors challenge the court’s ruling on the statute of limitations. As for the court’s reliance on Code of Civil Procedure section 343’s four-year period, it clearly erred. Plaintiffs’ action is based on defendants’ alleged noncompliance with their statutory obligations under the Clean Water Act and the Porter-Cologne Act. Code of Civil Procedure section 338, subdivision (a) declares a three-year limitations period applies to “[a]n action upon a liability created by statute . . . .”
But the real issue is when plaintiffs’ causes of action accrued. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 815 [“[A] cause of action accrues ‘upon the occurrence of the last element essential to the cause of action’”].) Under section 338, subdivision (a), to the extent plaintiffs’ action can be construed as challenging the boards’ pre-December 9, 2002 adoption and approval of the basin plan and amendments to it or the terms of the NDPES permits, their claims are barred. (Howard Jarvis Taxpayers Assn. v. City of La Habra, supra, 25 Cal.4th at p. 821 [“a declaratory judgment action or mandate petition to enforce a statutory liability must be brought within the same three-year period after accrual of the cause of action”].)
The trial court relied on Jarvis’ continuing violation exception to find plaintiffs’ action was timely. In Jarvis, the Supreme Court recognized an exception to the foregoing rule where taxpayers challenged a city’s enactment of a utility users tax without obtaining prior voter approval as required by Proposition 62 (Gov. Code, § 53720 et seq.). “[P]laintiffs have alleged an ongoing violation of Proposition 62’s commands . . . over the validity of the utility tax,” and “those causes of action are not barred merely because similar claims could have been made at earlier times as to earlier violations, or because plaintiffs do not at this time also seek a refund of taxes paid. . . . [¶] . . . “Indeed, in the absence of an independent bar on equitable or writ relief, a person aggrieved by the required payment of a tax is not limited to seeking a refund, but may challenge the validity of the taxing agency’s policy or continuing conduct by a claim for declaratory relief. [Citations.]” (Howard Jarvis Taxpayers Assn. v. City of La Habra, supra, 25 Cal.4th at pp. 821-822, fn. omitted.)
Defendants claim the continuing violation exception does not apply here, arguing “[t]his action was not about an application of water quality standards,” but rather “was a belated, direct attack upon the . . . standards themselves.” Intervenors argue Jarvis “was limited only to tax measures.” Contrary to these assertions, the court did identify defendants’ approval of the TMDLs, most of which occurred within three years before this lawsuit was filed, as the application of the allegedly defective water quality objectives supporting plaintiffs’ action. In addition, the Supreme Court later relied on Jarvis to allow an action by a property owner who filed a facial challenge to a county ordinance within 90 days after the county issued a permit that imposed restrictions on the construction of a second dwelling, even though the ordinance had been enacted nearly 20 year earlier. (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 768-769.)
In any event, the court noted plaintiffs’ action primarily challenged Regional Board’s resolution on the 2004 Triennial Review without addressing their requests concerning the validity of the water quality objectives as well as the imposition of TMDLs under the current MS4 permit. Insofar as plaintiffs’ action is limited to these claims it would appear to be timely.
3. Collateral Estoppel
Defendants cited portions of three prior judicial rulings they claimed collaterally estopped plaintiffs from arguing Regional Board had not considered section 13241 in adopting the 2001 NPDES MS4 permit and in subsequently approving the TMDLs for trash and metals. The trial court rejected these claims, concluding plaintiffs’ prior actions “did not challenge the legality of applying [s]tandards to storm water without the [b]oards first appropriately considering the 13241/13000 factors.” (Underscoring omitted.)
The trial court erred in declining to find some of plaintiffs’ claims were barred by two of the prior decisions. “The doctrine of res judicata precludes the relitigation of certain matters which have been resolved in a prior proceeding under certain circumstances. [Citation.] Its purpose is ‘to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.’ [Citations.] [¶] The doctrine has two aspects. It applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. [Citations.] The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)
In City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th 1392, 12 of the cities involved in this action filed a petition for a writ of mandate challenging defendants’ adoption of the trash TMDL for municipal storm drains draining into the Los Angeles River, one of the alleged applications cited by the trial court in this case. The trial court in that case granted the writ, finding in part defendants failed to consider the economic factors as required by section 13241.
The Court of Appeal reversed this portion of the ruling. On appeal, defendants argued section 13241 was “inapplicable because the Trash TMDL does not establish water quality objectives, but merely implements, under . . . section 13242, the existing narrative water quality objectives in the 1994 Basin Plan.” (City of Arcadia v. State Water Resources Control Bd., supra, 135 Cal.App.4th at p. 1415.) The plaintiff cities disagreed with this claim. The appellate court declined to decide which argument was correct, finding “even if the statute is applicable, the Water Boards sufficiently complied with it.” (Ibid., fn. omitted.) The opinion then proceeded to discuss in detail the economic factors considered in the trash TMDL. (Id. at pp. 1416-1418.)
In County of Los Angeles v. California State Water Resources Control Bd. (2006) 143 Cal.App.4th 985, Los Angeles County and the cities involved in this case, plus BILDF sued defendants challenging the adoption of the 2001 MS4 Permit. Intervenors also intervened and appeared. The trial court ruled for defendants and the Court of Appeal affirmed the decision. The appellate court certified only a portion of its opinion for certification.
In the unpublished portion of its opinion the appellate court rejected the plaintiffs’ claim section 13241 required “the regional board . . . to consider the economic impact of issuance of the permit.” Citing to evidence in the record, it found the plaintiffs’ contention lacked merit because, after reviewing the record, it concluded there was “substantial evidence the regional board considered the costs and benefits of implementation of the permit.”
The third case defendants cite involved a February 2007 trial court statement of decision denying the petition of eight cities involved in the present case against defendants challenging the 2005 adoption of a TMDL for metals in the Los Angeles River and its tributaries. While agreeing “the Water Boards were . . . required to examine the criteria in section 13241 in amending” “the basin plan in adopting the metals TDMLs,” the trial court found “[t]he evidence supports th[e] conclusion” defendants “did so (along with a protest that it was unnecessary).”
The two appellate court rulings resulted in final judgments. But neither defendants nor intervenors cite to the existence of a final judgment in the superior court matter. At best defendants claim the trial court’s ruling was appealed, but there is no indication a final ruling has been rendered. While collateral estoppel can arise from a superior court judgment (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § § 350, 351, pp. 962-963), the requirement of a final judgment is not satisfied as to the latter case.
But all of the elements for collateral estoppel exist as to the two appellate court rulings. In each case, the Court of Appeal considered whether the boards complied with section 13241 in approving a regulation applying to plaintiffs’ storm sewers and concluded they had done so. As for privity, “In the context of collateral estoppel, due process requires that the party to be estopped must have had an identity or community of interest with, and adequate representation by, the losing party in the first action as well as that the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication. [Citation.] Thus, in deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation. [Citations.]” (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 1102-1103.) Under this standard, not only were many of the same municipalities and BILDF parties to the prior actions, privity clearly existed between the parties to the prior lawsuits and the parties in this case.
Plaintiffs argue and the trial court found no collateral estoppel on the ground neither decision applied the provisions of section 13000 and 13241 to storm water. But, as discussed in greater depth below, the focus of the Clean Water Act is on setting criteria for water quality based on a water body’s designated uses, not the source of discharges adversely affecting the body’s water quality. “The states are required to set water quality standards for all waters within their boundaries regardless of the sources of the pollution entering the waters.” (Pronsolino v. Nastri (9th Cir. 2002) 291 F.3d 1123, 1127, italics omitted; see also 33 U.S.C. § 1313(c)(2)(A) [“revised or new water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses”].) Thus, the trial court erred in failing to give collateral estoppel effect to the first and second appellate court decisions concerning the application of section 13241 to the 2001 MS4 permit and the adoption of the trash TMDL.
4. The 2004 Triennial Review
The trial court found defendants abused their discretion by declining plaintiffs’ requests “to perform the [sections] 13241/13000 analysis at the 2004 T[riennial[]Review.” In particular, the court found “[t]he [s]tandards cannot be
applied to storm water without appropriate consideration of the 13241/13000
factors,” and “[t]here is no substantial evidence showing that the [b]oards considered the[se] . . . factors before applying the [s]tandards to storm water in the 1975 [p]lan [a]doption, the 1994 [a]mendment, or the 2002 [b]acterial [o]bjectives.” The court’s finding is contradicted by both the foregoing decisions as well as the record in this case. In addition, it appears the court misunderstood the applicable legal requirements.
First, plaintiffs’ allegations that Regional Board failed to conduct public hearings during the 2004 Triennial Review are contrary to the record. The administrative record reflects Regional Board conducted a series of public workshops that involved discussion of a list of priorities for the basin plan.
Second, to prevail, plaintiffs needed to show Regional Board had a duty to consider sections 13000 and 13241 when conducting its triennial review. “‘Two basic requirements are essential to the issuance of the writ [of mandate]: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citations].’ [Citations.]” (Shamsian v. Department of Conservation (2006) 136 Cal.App.4th 621, 640.) As for the first requirement, “[a] statute is deemed to impose a mandatory duty on a public official only if the statute affirmatively imposes the duty and provides implementing guidelines. [Citations.]” (O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510.) “‘Whether a particular statute is intended to impose a mandatory duty . . . is a question of statutory interpretation for the courts.’ [Citation.]” (Ibid.)
Section 13143 declares “[s]tate policy for water quality control shall be periodically reviewed and may be revised.” The Clean Water Act provides “the State water pollution control agency . . . shall from time to time (but at least once each
three[-]year period . . . ) hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards.” (33 U.S.C. § 1313(c)(1).) Regional Board was required to conduct a review of its basin plan, but the foregoing statutes do not impose a duty to revise or modify it.
Regional Board was not obligated to consider the factors contained in section 13000 and 13241 when conducting the basin plan’s 2004 Triennial Review. As for section 13000, it is not a basis for mandamus relief. That statute provides, “The Legislature finds and declares that the people of the state have a primary interest in the conservation, control, and utilization of the water resources of the state, and that the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state[;] [¶] . . . that activities and factors which may affect the quality of the waters of the state shall be regulated to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible[;] [¶] . . . that the health, safety and welfare of the people of the state requires that there be a statewide program for the control of the quality of all the waters of the state; that the state must be prepared to exercise its full power and jurisdiction to protect the quality of waters in the state from degradation originating inside or outside the boundaries of the state; that the waters of the state are increasingly influenced by interbasin water development projects and other statewide considerations; that factors of precipitation, topography, population, recreation, agriculture, industry and economic development vary from region to region within the state; and that the statewide program for water quality control can be most effectively administered regionally, within a framework of statewide coordination and policy.”
A statute containing “a general statement of legislative intent . . . does not impose any affirmative duty that would be enforceable through a writ of mandate. [Citations.]” (Shamsian v. Department of Conservation, supra, 136 Cal.App.4th at pp. 640-641; see also Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 444 [“the precatory declaration of intent expressed in the statute must be read in context” and “cannot be viewed as independently creating substantive duties . . . in addition to those imposed by the regulations”].) As for section 13000, that is the case. The trial court erred in declaring defendants had a duty to consider the statements of legislative intent found in section 13000 in adopting the MS4 permit and incorporating the TMDL requirements into it.
Section 13241 does impose obligations that can be enforced by a writ of mandate. It declares “[e]ach regional board shall establish such water quality objectives in water quality control plans as in its judgment will ensure the reasonable protection of beneficial uses and the prevention of nuisance; however, it is recognized that it may be possible for the quality of water to be changed to some degree without unreasonably affecting beneficial uses. Factors to be considered by a regional board in establishing water quality objectives shall include, but not necessarily be limited to, all of the following: [¶] (a) Past, present, and probable future beneficial uses of water. [¶] (b) Environmental characteristics of the hydrographic unit under consideration, including the quality of water available thereto. [¶] (c) Water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area. [¶] (d) Economic considerations. [¶] (e) The need for developing housing within the region. [¶] (f) The need to develop and use recycled water.”
But this statute only requires consideration of the listed factors when “establishing water quality objectives . . . .” (§ 13241.) As noted, “‘[w]ater quality objectives’” means “the limits or levels of water quality constituents or characteristics which are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area.” (§ 13050, subd. (h).) These objectives are only one element of a water quality control plan, which the Porter-Cologne Act defines as “a designation or establishment for the waters within a specified area of all of the following: [¶] (1) Beneficial uses to be protected. [¶] (2) Water quality objectives.
[¶] (3) A program of implementation needed for achieving water quality objectives.” (§ 13050, subd. (j).)
The record contains findings Regional Board considered the foregoing factors when adopting the 1975 basin plans for the Santa Clarita and Los Angeles Rivers and their tributaries. When Regional Board amended the basin plans in 1994 by combining them into one plan, a staff report expressly noted “most of the water quality objectives are not being changed . . . .” (Underscoring omitted.) That report also discussed the potential economic impacts from some of the objectives that were revised. In addition, Regional Board considered section 13241’s factors when it adopted the 2001 MS4 permit and the 2002 bacteria objectives.
Generally, “[i]t is presumed that official duty has been regularly performed.” (Evid. Code, § 664; City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4th 960, 976 [“the relevant inquiry here is not whether the record establishes compliance but whether the record contains evidence [the board] failed to comply with the requirements of its . . . regulatory program” and, “[i]n the absence of contrary evidence, we presume regular performance of official duty”].) Section 13241 does not specify how a water board must go about considering the specified factors. Nor does it require the board to make specific findings on the factors. Furthermore, the parties appear to concede the 1994 amendment to the basin plan, while it combined the two prior basin plans into one and extended the revised plan to cover storm water and urban runoff, did not change the water quality objectives.
Plaintiffs argue Regional Board failed to consider section 13241’s factors in relation to storm water. First, we note the 1994 basin plan, which dealt with storm water, did contain an express reference to section 13241 and the staff report did discuss the potential for economic impacts from some of the changes made in the plan’s water quality objectives.
Second, it is clear under both the Clean Water Act and the Porter-Cologne Act that the focus of a basin plan is the water bodies and the beneficial uses of those water bodies, not the potential sources of pollution for those water bodies. The Clean Water Act declares “revised or new water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” (33 U.S.C. § 1313(c)(2)(A); see also 40 C.F.R. §§ 131.3(i) (2010) [“Water quality standards are provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses”]; 131.2 (2010) [a “water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses”]. Similarly, the Porter-Cologne Act requires regional boards to “formulate and adopt water quality control plans for all areas within the region.” (§ 13240.) Section 13050, subdivision (j) defines a “‘[w]ater quality control plan’” as applying to the “[b]eneficial uses to be protected” “for the waters within a specified area”].) Merely revising a basin plan to include storm water and urban runoff from municipal storm drains discharging into water bodies already covered by that plan did not trigger the need to comply with section 13241.
Plaintiffs’ reliance on City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th 613 lacks merit. There Regional Board issued wastewater discharge permits to wastewater treatment facilities. The permits contained daily numeric limitations for several pollutants. The cities challenged the numeric requirements, alleging the Regional Board failed to comply with sections 13263, subdivision (a), which required a regional board to “take into consideration . . . the provisions of Section 13241” when prescribing the requirements for a “proposed” or “existing discharge . . . with relation to the conditions existing in the disposal area or receiving waters . . . .”
City of Burbank concerned the validity of California’s equivalent of an NPDES permit, not a basin plan or a regional board’s periodic review of that plan. While the case recognized section 13263 imposed a requirement that waste discharge permits comply with section 13241 (City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 625), as discussed above, defendants did comply with section 13241 in issuing the MS4 permits to plaintiffs and in establishing the TMDLs for those permits.
Furthermore, as intervenors argue City of Burbank further held a failure to consider section 13241’s factors will invalidate a permit only if the Regional Board imposed water quality requirements exceeding those imposed by federal law. “Because section 13263 cannot authorize what federal law forbids, it cannot authorize a regional board, when issuing a wastewater discharge permit, to use compliance costs to justify pollutant restrictions that do not comply with federal clean water standards. Such a construction of section 13263 would not only be inconsistent with federal law, it would also be inconsistent with the Legislature’s declaration in section 13377 that all discharged wastewater must satisfy federal standards.” (City of Burbank v. State Water Resources Control Bd., supra, 35 Cal.4th at p. 626, fns. omitted.)
As applied here, to succeed on their petition plaintiffs needed to show Regional Board had imposed water quality requirements exceeding those established by the Clean Water Act. The federal requirements set a minimum water quality level and, as City of Burbank held, a state cannot use state law limitations to impose lower water quality levels. The record reflects Regional Board’s actions were compelled by federal law. Absent a showing defendants sought to impose water quality objectives exceeding what federal law required, plaintiffs cannot prevail.
5. Consideration of “Potential” Beneficial Uses
As noted, section 13241 declares the “[f]actors to be considered by a regional board in establishing water quality objectives shall include, but not necessarily be limited to . . . [¶] . . . [p]ast, present, and probable future beneficial uses of water.” (§ 13241, subd. (a).) The record reflects Regional Board’s basin plan also took into considered “potential” beneficial uses of water in setting water quality objectives. The trial court granted plaintiffs’ relief as to this action, finding “basing [s]tandards on ‘potential’ uses is inconsistent with the clear and specific requirement . . . that [b]oards consider ‘probable future’ uses.”
This portion of the judgment is also erroneous. “‘[W]hile interpretation of a statute or regulation is ultimately a question of law, we must also defer to an administrative agency’s interpretation of a statute or regulation involving its area of expertise, unless the interpretation flies in the face of the clear language and purpose of the interpreted provision.’ [Citation.]” (Divers’ Environmental Conservation Organization v. State Water Resources Control Bd. (2006) 145 Cal.App.4th 246, 252.)
Contrary to the trial court’s construction, “[t]he phrase ‘including, but not limited to’ is a term of enlargement, and signals the Legislature’s intent that [a statutory provision] appl[y] to items not specifically listed in the provision. [Citation.]” (Major v. Silna (2005) 134 Cal.App.4th 1485, 1495.) Given the expansive scope of the Legislature’s findings contained in section 13000, plus the findings in the 2001 MS4 permit citing water quality objectives for discharges to the state’s coastal waters, allowing a regional board to interpret its authority under section 13241 to include the development of water quality objectives based on potential, as opposed to probable, beneficial uses would be appropriate. Therefore, the trial court erred in limiting Regional Board’s exercise of its discretion in developing water quality objectives.
6. Pending Motions
Intervenors have filed two requests for judicial notice. One seeks to place before the court a February 2009 proclamation by the Governor concerning the current drought conditions in the state, plus a portion of a 1994 EPA handbook on water quality. The second motion asks the court to take judicial notice of an October 2009 letter from an EPA regional director expressing the federal agency’s concerns about the trial court’s decision in this case. Defendants have also requested judicial notice of the October 2009 letter. While these documents appear to qualify for judicial notice, none appear relevant to the issues presented in these appeals. These requests are denied.
Amici Curiae County of Los Angeles and Los Angeles County Flood Control District have also filed a request for judicial notice of three documents. One is a copy of excerpts of the current MS4 permit. The other two documents are 2004 and 2005 Regional Board’s staff reports on the costs involved in implementing the TMDLs. Again, none of the documents appear relevant to the issues on appeal and the request is denied.
In addition, intervenors have moved to strike Part IV. H. (pp. 43-46) of plaintiffs’ reply brief on the ground it constitutes an improper surreply brief. If so, this court may simply disregard the offending contentions. We deny this motion as well.
DISPOSITION
The judgment is reversed and the matter remanded to the superior court with directions to vacate the writ and enter a new judgment denying the petition. The appeal filed by plaintiffs is dismissed as moot. The requests for judicial notice and motion to strike portions of plaintiffs’ and appellants’ reply brief are denied. Appellants State Water Resources Control Board, California Regional Water Quality Control Board, Los Angeles Region, Natural Resources Defense Council, Santa Monica Baykeeper, and Heal the Bay shall recover their costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
Filed 12/22/10
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| CITY OF ARCADIA et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants NATURAL RESOURCES DEFENSE COUNCIL et al., Intervenors and Appellants. | G041545 (Super. Ct. No. 06CC02974) O R D E R |
The request to consolidate this appeal with City of Arcadia v. State Water Resources Control Board, case number G042088, is DENIED.
It appearing that the opinion filed in this matter on December 14, 2010 meets the standards set forth in California Rules of Court, rule 8.1105(c), the court, on its own motion, orders the opinion certified for publication.
CERTIFIED FOR PUBLICATION
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
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