Imperial Cty. Air Pollution Cont. Dist.
v. State Water Res. Cont. Bd.
Filed 6/12/13 Imperial Cty. Air Pollution Cont. Dist. v.
State Water Res. Cont. Bd. CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
IMPERIAL COUNTY AIR
POLLUTION CONTROL DISTRICT,
Plaintiff and Appellant,
v.
STATE WATER RESOURCES
CONTROL BOARD,
Defendant and Respondent;
IMPERIAL IRRIGATION
DISTRICT et al.,
Real Parties in Interest.
C059264
(Super. Ct. Nos. 03CS00083, JCCP4353)
As John
Huston’s character in the film Chinatown (Paramount
Pictures 1974) observed: “Either you
bring the water to L.A. or you
bring L.A. to the water.†Water means growth; growth necessitates
access to water. The pull between this
thirst for water and its limited supply has resulted in a tsunami of litigation
over the distribution of this precious resource among competing interests. This is our second foray into a deep well of
litigation between various entities over water, the commodity sometimes
referred to as the “oil of the 21st century.â€
Real
parties in interest Imperial Irrigation District (Imperial) and San Diego
County Water Authority (San Diego)
sought to enter into an agreement to transfer 300,000 acre feet of water per
year (afy) from Imperial to San Diego. Ultimately, the parties agreed to transfer
200,000 afy and conserve 100,000 afy for possible future acquisition by
the Metropolitan Water District of Southern California (Metropolitan) and
Coachella Valley Water District (Coachella).
Defendant
State Water Resources Control Board
(Board) approved the transfer. In
Cal.App.4th 13, County of Imperial (County) (amicus curiae herein for plaintiff
Imperial County Air Pollution Control District (Air District)) filed two
separate mandamus petitions in the trial court challenging various aspects of
the Board’s decision under the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000
et seq.). The first petition named
the Board as respondent, and Imperial and San Diego
as real parties in interest. The second
petition named Imperial as respondent and San Diego
as real party in interest. Neither
petition named Metropolitan or Coachella.
Imperial
demurred, arguing the County failed to name Metropolitan or Coachella, which
were necessary parties in both proceedings.
The trial court sustained the demurrers with leave to amend. Subsequently, the County amended the
petitions, naming Metropolitan and Coachella as interested parties. Metropolitan, Coachella, and San
Diego filed joint demurrers, arguing Metropolitan and
Coachella could not be added after the statute of limitations ran. The trial court sustained the demurrers
without leave to amend, finding Metropolitan and Coachella
Valley indispensable parties and
finding the statute of limitations had run.
We affirmed the trial court’s judgment sustaining the demurrers without
leave to amend.
The parties
are back before us over the issue of indispensable parties. The earlier parties, plus the Air District,
return in this second round. On the same
day the County filed its petition in case No. 03CS00082, the Air District filed
a petition for a writ of administrative mandamus in the present case,
challenging the Board’s approval of the water transfer but failing to name
Metropolitan or Coachella. The Board and
San Diego filed demurrers, joined
by Imperial, requesting dismissal on the grounds that the Air District failed
to name indispensable parties Metropolitan and Coachella. The trial court sustained the demurrers
without leave to amend. The Air District
appeals, arguing the trial court abused its discretion in dismissing the action
after finding Metropolitan and Coachella indispensable parties. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Although
this litigation concerns numerous entities and has spawned a voluminous record,
at its essence the petition rests upon the trial court’s determination that
Metropolitan and Coachella are indispensable parties. With this limited procedural question in
mind, we review the factual and procedural background.
Imperial and Colorado River Water
Imperial is
the largest single holder of water rights on the Colorado River in
California. In 1914 California initiated
the water rights permitting system currently administered by the Board. Imperial was formed in 1911 to bring Colorado
River water to California’s Imperial Valley.
Each year, Imperial provides enough water to irrigate 500,000 acres in
the Imperial Valley. Imperial also
delivers water to cities, schools, and businesses. (Imperial Irr. Dist. v. U.S. E.P.A.
(9th Cir. 1993) 4 F.3d 774, 774-775.)
Metropolitan
and Coachella also possess water rights on the Colorado River under an
agreement among all California water rights holders known as the Seven Party
Agreement of 1931 (Seven Party Agreement).
The Seven Party Agreement placed water rights holders in a priority
system. Most of Imperial’s water rights
under this system take priority over most of Coachella’s and over all of
Metropolitan’s. Based on its place in
the priority system, Imperial is entitled to divert its full right to water
before Metropolitan can divert any water at all. San Diego possesses no Colorado River water
rights.
This
priority system led to a conflict among Imperial, San Diego, Metropolitan, and
Coachella. Imperial and San Diego
contend Imperial may reduce its water use and designate another recipient to
receive its unused water. In essence,
Imperial may transfer excess water.
Coachella and Metropolitan disagree and argue that under federal law,
any water unused by Imperial is available to them under the priority system.
In the 1980’s
the Board found some of Imperial’s water use practices unreasonable and
wasteful. The Board directed Imperial to
increase water conservation. One
suggested measure by which Imperial could increase conservation was to transfer
conserved water to a willing purchaser in exchange for funding to support
Imperial’s conservation efforts.
Imperial and San Diego’s Petition to the Board
In 1998
Imperial and San Diego executed an agreement under which San Diego would fund
water conservation measures within Imperial’s service area in exchange for
Imperial’s transfer of up to 300,000 afy to San Diego (transfer
agreement). Imperial and San Diego
jointly petitioned the Board to approve changes in the point of diversion and place
of use in Imperial’s water rights permit to allow an annual transfer on a
long-term basis of up to 300,000 afy of Colorado River water from Imperial to
San Diego for up to 75 years. The
petition noted the agreement was ineffective until completion of environmental
review, when the agencies would determine whether to go forward with the
project.
The
Legislature has provided for Board approval of long-term transfers of water
between water districts. (Wat. Code,
§§ 1735-1737.) Water Code section
1735 states: “The board may consider a
petition for a long-term transfer of water or water rights involving a change
of point of diversion, place of use, or purpose of use. A long-term transfer shall be for any period
in excess of one year.â€
A request
for approval of a long-term water transfer must be filed by the holder of the
water right, permit, or license. (Cal.
Code Regs., tit. 23, § 811.) A
request for a change in point of diversion, place of use, or purpose of use
must be filed by the rights holder.
(Wat. Code, § 1701.)
Water Code
section 1736 provides that the Board may approve a petition for transfer: “The board, after providing notice and
opportunity for a hearing, including, but not limited to, written notice to,
and an opportunity for review and recommendation by, the Department of Fish and
Game, may approve such a petition for a long-term transfer where the change
would not result in a substantial injury to any legal user of water and would
not unreasonably affect fish, wildlife, or other instream beneficial uses.â€
The County
protested the petition for approval of the transfer. The County argued the transfer would lead to
detrimental third-party effects on the County’s economy and environment. The County emphasized the impacts caused by
the transfer’s effects on the Salton Sea and the potentially severe air quality
impacts associated with fallowing land and drying out the Salton Sea.
Metropolitan and Coachella Protest the Transfer
Metropolitan
and Coachella protested the transfer petition, contending the transfer violated
their priority rights under the Seven Party Agreement and the Board lacked
jurisdiction because federal law
preempted state regulation of Colorado River transfers. Metropolitan and Coachella indicated their
objections could be resolved as part of a broader resolution of Colorado River
issues.
Quantification Settlement Agreement
While the
transfer petition was pending, negotiations began to reduce and redistribute
California’s use of Colorado River water in accordance with guidelines adopted
by the Secretary of the Interior. These
guidelines were designed to reduce California’s Colorado River water usage from
5.2 million afy to 4.4 million afy, in accordance with rules established by the
Supreme Court in Arizona v. California
(1963) 373 U.S. 546 [10 L.Ed.2d 542].
The
(QSA) negotiations involved high-level discussions among Colorado River water
agencies, federal and state officials, and stakeholders to resolve
long-standing disputes about quantification of Colorado River water
rights. The disputes included reasonable
and beneficial use of river water, transfers and exchanges between water users,
federal delivery of surplus water to California, and various environmental and
socioeconomic impacts to the County from implementation of the proposed QSA’s.
The
transfer of water from agricultural to urban uses formed a key element of the
plan. The transfer between Imperial and
San Diego was the largest such transfer.
Those negotiations over the reduction of California’s use of Colorado
River water led to the negotiation of the QSA and the individual QSA’s.
The Protest Dismissal Agreement
To resolve
Coachella and Metropolitan’s objections to the transfer agreement, Imperial,
San Diego, Coachella, and Metropolitan entered into the protest dismissal
agreement (PDA).
The PDA
amended the transfer petition to reduce the water transfer to San Diego from
300,000 afy to 200,000 afy , and to make the 100,000 afy difference available
for acquisition by Metropolitan and Coachella.
Drafts of the agreements for these transfers, along with a draft of the
QSA, were submitted as exhibits in the Board proceeding.
The Board
sent out a public notice that it would now consider approving not only the
proposed water transfer from Imperial to San Diego, but also the proposed
transfers from Imperial to Coachella and Metropolitan. The Board notice stated that despite the
parties’ not using the word “transfer†for the water going to Coachella and
Metropolitan, the Board considered approval of an acquisition to be approval of
a transfer. The Board served a copy of
the notice on the County.
name="_ftnref3" title="">[3]
Metropolitan
and Coachella agreed to withdraw their protests and allow the Board to hear and
approve the transfer project, including the acquisition of water by Coachella
and/or Metropolitan.
name="_ftnref4" title="">[4] The parties agreed that any decision by the
Board on the transfer project would be nonprecedential, and San Diego would not
use the Board’s decision to argue in another proceeding that Board approval was
required to make water available to Coachella or Metropolitan. Mindful of federal preemption issues, all
parties also agreed to urge the Board to include a statement that its decision
“shall not establish the applicability or nonapplicability of California law or
federal law to any of the matters raised by the Petition or any other Colorado
River transfer or acquisition.â€
In comments
before the Board at the time of the protest dismissal, Metropolitan argued the
Board would not be considering approval of any action by Metropolitan or
Coachella:
“. . . Metropolitan reminds the State Board that no party
is seeking approval of a ‘transfer’ with respect to the possible conservation
and acquisition by Metropolitan of up to 100,000 acre feet of water from
[Imperial].â€
Subsequent Proceedings
After
withdrawing their protests before the Board, Metropolitan and Coachella ceased
participating in the Board proceeding.
Neither party submitted any briefing or exhibits, nor did either party
participate in the Board’s public hearing.
While the
Board proceeding was pending, Imperial, as lead agency, prepared the draft and
final environmental impact reports (DEIR and FEIR, respectively) for the water
transfer from Imperial to San Diego.
Imperial certified and submitted the DEIR and FEIR. Part of the DEIR project description includes
the transfer of water by Imperial to San Diego, Coachella, and Metropolitan.
In an order
adopted in October 2002 and amended in December 2002, the Board approved
Imperial and San Diego’s transfer petition.
As requested by Imperial, the orders expressly clarified that the water
districts were still to make the final decisions regarding all water transfers
or acquisitions. The Board filed its
notice of determination for approval of Imperial and San Diego’s transfer
petition. The Board relied on Imperial’s
transfer project FEIR.
However, on
December 9, 2002, Imperial’s board of directors declined to approve the
proposed QSA or adopt the transfer project.
Subsequently, the Board approved the QSA, but with conditions
unacceptable to Metropolitan and Coachella.
The agencies failed to meet the Department of Interior’s deadline for
QSA approval. January 2003 passed and
none of the proposed QSA-related agreements, including the proposed agreements
by which Metropolitan and Coachella would acquire water from Imperial, were
finalized.
On January
21, 2003, the County filed its mandamus petition in case No. 82, naming the
Board as respondent and Imperial and San Diego as real parties in
interest. The petition challenged the
Board’s order approving the transfer.
The County did not name Metropolitan or Coachella.
That same
day, the Air District filed a mandamus
petition, the subject of the present appeal, challenging the Board’s order
approving transfer and the Board’s failure to require adequate mitigation
measures for air quality impacts. The
petition named as real parties in interest Imperial and San Diego, but did not
name Metropolitan or Coachella. Because
of the absence of any final approval of the underlying transfer project, and by
agreement of the parties, case No. 82 and the present case were stayed.
On October
2, 2003, Imperial approved the transfer project. On October 10, 2003, Imperial,
Metropolitan, and Coachella signed the QSA and finalized the QSA-related
agreements.
On June 14,
2007, we issued our decision in County of
Imperial, supra,
152 Cal.App.4th 13. We found the
trial court did not abuse its discretion in dismissing case No. 82 after
finding Metropolitan and Coachella indispensable parties.
Following
our decision in County of Imperial,
the Board and San Diego demurred to the Air District’s petition, arguing
Metropolitan and Coachella were indispensable parties. Imperial joined in the two demurrers.
Following
the demurrers without leave to amend.
The court found alternative forums available for the Air District and
the County to raise their CEQA arguments even if the case were dismissed. The court noted that in County of Imperial we relied in part on the “pendency of Case 83â€
in determining adequate forums existed to raise CEQA challenges to the
transfer. However, the court determined
the CEQA challenges in the coordinated cases offered the same type of relief to
the Air District and the County that the current cases afforded.
The court
concluded: “[T]he facts of Case 83 with
respect to the adequacy of the alternative remedy are not fairly
distinguishable from Case 82, and even if they were, the result would be the
same based upon this Court’s analysis.
The Air Districts have adequate opportunity for remedy if Case 83 is
dismissed. As set forth in
54 Cal.App.4th 1144, 1154-1157, and reiterated in County of Imperial, supra
at 152 Cal.App.4th 39, such remedy need not be perfect or identical, but should
afford the opportunity for the same general type of relief. In contrast, the primary concern articulated
in Deltakeeper v[.] Oakdale Irrigation
District (2001) 94 Cal.App.4th 1092 was that the EIR not escape
review. There are multiple CEQA
challenges to the QSA EIR remaining in these coordinated cases, including ones
that address the air quality issues of concern to the Air Districts. The Court appreciates that the Air Districts
may not have ‘precisely the same claims’ as they would have had they named
[Metropolitan] and [Coachella], but that is not required.â€
The court
also explored the remedies proposed by the Air District to avoid prejudice to
the unnamed parties and found them insufficient. The court found these remedies could not
avoid the potential prejudice to Metropolitan and Coachella such as the
potential loss of the 100,000 afy intended for them, or the secondary impacts
of more immediate reduced Colorado River diversions if the QSA unraveled. The court termed the unraveling of the QSA “a
possibility, and one that must be taken seriously.â€
Following
entry of judgment, the Air District filed a timely notice of appeal.
DISCUSSION
NECESSARY AND INDISPENSaBLE PARTIES
Code of
Civil Procedure section 389 (section 389) governs the joinder of parties
and provides, in pertinent part:
“(a) A person
who is subject to service of process and whose joinder will not deprive the
court of jurisdiction over the subject matter of the action shall be joined as
a party in the action if (1) in his absence complete relief cannot be accorded
among those already parties or (2) he claims an interest relating to the
subject of the action and is so situated that the disposition of the action in
his absence may (i) as a practical matter impair or impede his ability to
protect that interest or (ii) leave any of the persons already parties subject
to a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a
party.
“(b) If a
person as described in paragraph (1) or (2) of subdivision (a) cannot be made a
party, the court shall determine whether in equity and good conscience the
action should proceed among the parties before it, or should be dismissed
without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court
include: (1) to what extent a judgment
rendered in the person’s absence might be prejudicial to him or those already
parties; (2) the extent to which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the prejudice can be lessened or
avoided; (3) whether a judgment rendered in the person’s absence will be
adequate; (4) whether the plaintiff or cross-complainant will have an adequate
remedy if the action is dismissed for nonjoinder.â€
Subdivision
(a) of section 389 defines the persons who ought to be joined if possible,
often referred to as “necessary parties.â€
A determination that a party is a necessary party is the predicate for
the determination of whether the party is indispensable. Thus, subdivision (b) sets forth the factors
the court should consider in determining “whether in equity and good conscience
the action should proceed among the parties before it, or should be dismissed
without prejudice, the absent person being thus regarded as indispensable.â€
A court
must consider fairness and equity in deciding whether a party is
indispensable. A court has the power to
proceed with a case even if indispensable parties are not joined. Courts must be careful to avoid converting a
discretionary power or rule of fairness into an arbitrary and burdensome
requirement that may thwart rather than further justice. (People ex rel. Lungren v. Community
Redevelopment Agency (1997) 56 Cal.App.4th 868, 875-876.) In the CEQA context, “[t]he public has a
right to insist on the adequacy of the environmental document upon which the
agency makes its decision,†and courts should avoid thwarting this purpose
through the harsh application of indispensable party rules. (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1109
(Deltakeeper).)
Former
Public Resources Code section 21167.6.5, as amended (Stats. 2004, ch. 522,
§ 1), which requires approval recipients to be named in CEQA litigation, states:
“(a) The
petitioner or plaintiff shall name, as a real party in interest, any
recipient of an approval that is the subject of an action or proceeding brought
pursuant to Section 21167, 21168, or 21168.5, and shall serve the
petition or complaint on that real party in interest, by personal service, mail
facsimile, or any other method permitted by law, not later than 20 business
days following service of the petition or complaint on the public agency.
“(b) The
public agency shall provide the petitioner or plaintiff, not later than 10
business days following service of the petition or complaint on the public
agency, with a list of responsible agencies and any public agency having
jurisdiction over a natural resource affected by the project.
“(c) The petitioner
or plaintiff shall provide the responsible agencies, and any public agency
having jurisdiction over a natural resource affected by the project, with
notice of the action or proceeding within 15 days of receipt of the list
described in subdivision (b).
“(d)
Failure to name potential parties, other than those real parties in interest
described in subdivision (a), is not grounds for dismissal pursuant to Section
389 of the Code of Civil Procedure.
“(e)
Nothing in this section is intended to affect an existing right of a party to
intervene in the action.†(Italics
added.)
Standard of Review
We review
the trial court’s indispensable party determination under section 389 for an
abuse of discretion. The balancing
required under section 389, which directs the court to balance equities,
address fact-specific considerations, and render a pragmatic decision, mandates
a deferential standard. (
Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1151-1153 (
Adequate Remedy
Under
section 389, the court must consider whether the plaintiff or cross-complainant
will have an adequate remedy if the action is dismissed for nonjoinder. (§ 389, subd. (b), factor (4).) This factor is the wellspring from which this
appeal flows.
Prior Appeal
In
found the County would have the ability to assert its interests in the
before the Court, and the Court has announced in its case management plan that
all parties to all coordinated cases will be allowed to brief all issues, if
they desire.’ †(County of Imperial, supra,
152 Cal.App.4th at p. 39.)
On appeal,
the County argued the opportunity to submit briefs in another party’s case
provides no substitute. According to the
County: “ ‘That case could settle, and
of course the County would have no opportunity to appeal an adverse
judgment. As the County’s CEQA claims
were more expansive than those asserted in other mandamus actions, it cannot
assume respondent Court would allow it to brief issues not otherwise
raised. The County should not be
relegated to the status of cheerleader in someone else’s game, when the County
has the most at stake.’ †(
In
upholding the trial court’s finding, we noted “ ‘the standard is whether
appellants have an “adequate remedy,†not whether all issues are
identical.’ [Citation.]†(County
of Imperial, supra,
152 Cal.App.4th at p. 39.) We
noted that in addition to participating in other CEQA challenges to the EIR,
the County has also answered Imperial’s validation action, providing the County
an alternative means for asserting its CEQA claims against the project. The County has asserted Imperial’s failure to
comply with CEQA as a defense to Imperial’s pending validation action. (Ibid.)
However,
the County claimed the validation action provided “a poor alternative, since validation
cases ‘often become extraordinarily complex and time-consuming affairs.’ †(County
of Imperial, supra, 152
Cal.App.4th at p. 39.) We found, “The
County’s complaints regarding delay in the validation action may be valid, but
they do not provide a basis for finding that the trial court abused its
discretion in finding an adequate remedy if the County is dismissed.†(Id.
at p. 40.)
We also
noted the situation on appeal differed markedly from the situation we
encountered in Deltakeeper, supra,
94 Cal.App.4th 1092, where dismissal of the action would have
deprived the plaintiffs of any remedy.
In Deltakeeper, the adequacy of the EIR would have escaped any
judicial scrutiny, and we reasoned such a harsh result was unnecessary when the
unnamed parties shared a unity of interest in the CEQA litigation. (County of Imperial, supra, 152 Cal.App.4th at p. 40,
citing Deltakeeper, at p. 1109.)
In
contrast, in County of Imperial no
such unity of interest existed among the parties, and the County could mount a
CEQA challenge in the coordinated case and in its opposition to Imperial’s
validation action. Under these
circumstances, and based on the record before us, we could not find the trial
court abused its discretion in applying the section 389, subdivision (b)
factors and dismissing the action. (
Current Appeal
In
sustaining the demurrers without leave to amend, the trial court found
alternative forums existed for the Air District to raise its CEQA arguments
even if case No. 83 were dismissed. The
court noted that in County of Imperial
we relied only in part on the pendency of case No. 83 in finding adequate
alternative forums existed to consider CEQA claims. In addition, liberal briefing rules in the coordinated
cases offered the Air District the “same general type of relief†that case no.
83 offered. In addition, the trial court
in case No. 83 found the proposed remedy offered by South Coast failed to
relieve the prejudice to the unnamed parties.
The proposal also would invalidate the FEIR, which would impact
transfers between the various districts.
The Air
District and the County argue the trial court erred in sustaining the demurrer
without leave to amend because we relied upon the viability of case No. 83 in
upholding the dismissal of case No. 82.
We disagree.
The
availability of an alternative forum, or forums, is only one of the four
factors considered in determining indispensable party status under section 389,
subdivision (b). Unlike a house of
cards, the failure of one factor does not immediately bring down the whole
edifice.
Although
the County and the Air District contend dismissal of case No. 83 automatically
divests the Air District of an alternative forum for CEQA claims, our opinion made
clear multiple forums, not just case No. 83, offered the Air District the
opportunity to pursue those claims.
In
court’s determination that in addition to case No. 83, which was then pending
before the court, “ ‘the Court has announced in its case management plan that
all parties to all coordinated cases will be allowed to brief all issues, if
they desire.’ †(County of Imperial, supra,
152 Cal.App.4th at p. 39.) We found
the County could mount a CEQA challenge in the coordinated case and in its
opposition to Imperial’s validation action.
(Id. at p. 40.)
The
coordinated cases include the validation action, the POWER case, the County
case, and the Morgan case, all of which challenge the CEQA documents relied upon
by Imperial in approving the QSA agreements.
The Air District has filed an answer in the validation action, raising
affirmative defenses. In addition, the
Air District is allowed to brief as amicus issues raised by the parties in the
coordinated cases. Therefore, despite
the dismissal of case No. 83, alternative forums exist in which the Air
District may pursue its CEQA challenges.
The Air
District and the County also argue case No. 83 is the only remaining case
raising CEQA challenges to the Board’s reliance on the FEIR in approving the
water transfers. However, under section
389, the question is not whether the alternative forums are identical, but
whether the parties have an adequate remedy.
We consider whether the alternative forums provide the “same general
type of relief.†(County of San Joaquin, supra,
54 Cal.App.4th at pp. 1154, fn. 7.)
Here, the
FEIR is also at issue in other coordinated cases that challenge Imperial’s
approval of the QSA. The Air District
raises CEQA issues in the validation action, arguing the FEIR and addendum did
not adequately analyze and mitigate air quality impacts.
The County
argues the Board conducted its CEQA review in a “bizarre manner that should not
go unreviewed and uncorrected.â€
According to the County, the Board made its decisions under CEQA prior
to Imperial’s making its decision on the QSA.
The County, citing no authority, argues the Board was not permitted to
approve the water transfer prior to Imperial’s approval of the larger project
analyzed in the FEIR.
As the
responsible agency, the Board was required to consider the FEIR certified by
Imperial. (Cal. Code Regs., tit. 14,
§§ 15050 & 15096.) The County
points to no authority requiring the lead agency to act on a project prior to
the responsible agency’s approval of the portion of the project it is
responsible for. The Board was required
to consider the FEIR in determining whether the proposed transfers comported
with Water Code section 1736. The Board
considered the FEIR and found that it addressed the potential environmental and
socioeconomic impacts.
SUPPLEMENTAL BRIEFING
We
requested supplemental briefing from the parties “expressing their views as to
the effect, if any, of this court’s decision in Quantification Settlement
Agreement Cases (2011) 201 Cal.App.4th 758 (C064293, filed Dec. 7, 2011) on the
issues raised in the present appeal.â€
coordinated cases, including a validation action brought by Imperial. The trial court found invalid several
agreements by which Imperial agreed to provide water to other agencies in
exchange for money to fund conservation efforts. A joint powers agreement imposed an
unconditional contractual obligation on the state to pay excess mitigation
costs. (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th
758, 773-775 (Quanitification).)
We reversed
and remanded to the trial court for further proceedings, finding the joint
powers agreement did not violate the Constitution. We found the trial court lacked jurisdiction
to rule on compliance with federal environmental laws. (Quantification,
supra, 201 Cal.App.4th at pp.
775-776.)
Apropos to
this appeal, in Quantification,
Coachella, Metropolitan, and San Diego argued the trial court abused its
discretion in denying their motion to dismiss the County’s CEQA action with
prejudice because the County failed to name as real parties in interest the
United States and numerous Indian tribes that were parties to a settlement
agreement. (Quantification, supra,
201 Cal.App.4th at pp. 847-848.) The
trial court determined the United States and the Indian settlement parties were
recipients of approval under Public Resources Code section 21167.6.5 since the
County’s CEQA action challenged the Quantification Settlement Agreement program
environmental impact report (PEIR) and, if successful, would set it aside; and
the project covered by the Quantification Settlement Agreement PEIR included
the agreement to which the United States and the Indian settlement parties are
parties. However, the trial court found
the United States and the Indian settlement parties were not indispensable and
denied the motion to dismiss. (
On appeal,
we reviewed Public Resources Code section 21167.6.5 and concluded the
trial court properly determined the United States and the Indian settlement
parties were necessary parties. (
abused its discretion in finding they were not indispensable parties under Code
of Civil Procedure section 389, subdivision (b), utilizing the four
factors listed in the statute. (
burden was on Coachella, Metropolitan, and San Diego to establish the court
abused its discretion by concluding that in equity and good conscience the
County’s CEQA action should proceed even in the absence of the United States
and the Indian settlement parties. (
None of the
parties challenged the trial court’s determination that the unnamed parties
might be prejudiced by a judgment rendered in their absence. (§ 389, subd. (b), factor (1);
We also found the trial court could have reasonably concluded that
limiting the County’s CEQA action to a challenge to the Quantification
Settlement Agreement would lessen, although not avoid entirely, potential
prejudice to the absent parties.
(§ 389, subd. (b), factor (2); Quantification,
its discretion in finding a judgment entered in the absence of the parties
would be adequate, given the lack of argument on the issue by the parties
challenging the decision. (§ 389,
subd. (b), factor (3); Quantification,
at pp. 858-859.)
It is the
final factor under section 389, subdivision (b) that resonates with the issues
on appeal before us: whether the Air
District will have an adequate remedy if the action is dismissed for
nonjoinder. The trial court in
other CEQA actions then pending did not involve the sufficiency of the
Quantification Settlement Agreement PEIR, the validation action was the only
other case that involved the PEIR by way of proposed validation of certain of
the agreements addressed in the PEIR. In
addition, the court determined the only way in which the PEIR was at issue in
the validation proceedings was in the generic claim of the District that it had
done everything necessary to generate valid agreements, including CEQA
compliance through the PEIR. The trial
court termed this “ ‘a very limited alternate remedy.’ †(Quantification,
supra, 201 Cal.App.4th at p.
859.)
On appeal,
we stated: “In essence, the trial court
appeared to recognize (1) that the Quantification Settlement Agreement PEIR is
at issue in the validation action only by virtue of the answering parties’
denial of [Imperial’s] allegation that it ‘complied with all laws necessary for
contracts A through M to be valid, legal, and binding, including
. . . all applicable California . . . Environmental Laws’
and (2) that the only remedy the County will have a possibility of obtaining in
the validation action is a judgment that the agreements that are the subject of
that action are not valid. What the
County will not be able to obtain in
the validation action is any relief directly involving the Quantification
Settlement Agreement PEIR, including a ‘writ of mandate setting aside the
certification of . . . the[] PEIR,’ which is part of the relief the County is
seeking in its CEQA action.†(
On appeal,
Coachella, Metropolitan, and San Diego argued the trial court abused its
discretion in determining that the validation action provided a very limited
remedy for the County. The parties cited
our prior opinion in County of Imperial,
supra, 152 Cal.App.4th 13,
stating we had previously determined that the validation action provided a
sufficient alternative forum for the County’s CEQA issues. (Quantification,
supra, 201 Cal.App.4th at pp.
859-860.)
In
CEQA challenge [to a different EIR] in [another] coordinated case and in its
opposition to [the] validation action.’
[Citation.] But that observation
simply supported the conclusion that the trial court did not abuse its
discretion ‘in applying the Code of Civil Procedure, section 389,
subdivision (b) factors’ in that
case. [Citation.] Our conclusion there has no bearing here and
certainly does not compel the conclusion that the validation action necessarily
provides the County with a ‘sufficient alternative forum’ to address its
challenges to the Quantification Settlement Agreement PEIR such that it was an
abuse of discretion for the trial court to allow the County’s CEQA action to go
forward.†(Quantification, supra,
201 Cal.App.4th at p. 860.)
Here, as in
Quantification, an appellant seeks to
invoke a prior opinion involving completely different facts and issues as
binding precedent in the present case.
The Air District contends, “If as this Court has now found in the QSA
Cases that the validation action is not an adequate remedy for the County’s
CEQA action challenging the QSA PEIR, it likewise cannot be an adequate remedy
for the Air District’s CEQA action challenging the State Board’s approval of
the Premature Transfer EIR.†(Italics
omitted.)
It is with
a sense of déjà vu that we point out the analysis in Quantification “simply supported the conclusion that the trial
court did not abuse its discretion ‘in applying the Code of Civil Procedure,
section 389, subdivision (b) factors’ in
that case [referring to County of
Imperial, supra, 152 Cal.App.4th
13].†(Quantification, supra,
201 Cal.App.4th at p. 860.) Mirror-like,
we note “Our conclusion there has no bearing here,†where we are considering
different parties, different facts, and different issues. (Ibid.) Our section 389, subdivision (b) analysis in
earlier conclusions in County of Imperial. Likewise, our analysis of section 389,
subdivision (b) factors is not circumscribed by or beholden to our analysis in
In
addition, in Quantification we
remanded the validation action and the CEQA actions for further
proceedings. In the course of finding
that the trial court did not abuse its discretion in denying the motion to
dismiss for failure to name the Indian settlement parties, we described the subject
of the action: “[W]here (as here) a CEQA
action challenges the adequacy of an EIR, the approval that is ‘the subject of’
that action is the approval of the project that was the subject of the
EIR. Here, that project was more than
just the Quantification Settlement Agreement; it was that agreement
in the Quantification Settlement Agreement PEIR that were approved based on the
certification of the PEIR. Those related
actions included the water transfers under the Allocation Agreement, to which
the United States and the Indian Settlement Parties were parties.†(Quantification,
supra, 201 Cal.App.4th at
p. 854.)
Among the
water transfers we found part of the litigation in Quantification were the 2002 transfer agreement between Imperial,
San Diego, Coachella, and Metropolitan, at issue in the present case. (Quantification,
supra, 201 Cal.App.4th at p. 788.) The plaintiff in our case, the Air District,
is one of the parties challenging the EIR and mounting CEQA challenges to the
validation action. Since the transfer
challenged and the party challenging the transfer on CEQA grounds remain in the
litigation, there is an adequate remedy despite dismissal of this action for
nonjoinder.
DENIAL OF LEAVE TO AMEND
The Air
District contends that denial of leave to amend is per se an abuse of
discretion if the pleading does not show on its face that it is incapable of
amendment. In support, the Air District
cites cases in which defects in the pleadings were capable of amendment, and
thus each complaint was capable of amendment “on its face.†(Kong
v. City of Hawaiian Gardens Redevelopment Agency (2000) 108 Cal.App.4th
1028; McDonald v. Superior Court (1986)
180 Cal.App.3d 297; King v. Mortimer (1948)
83 Cal.App.2d 153.) In those cases,
the court erred in failing to allow amendment.
The Air
District derives from these cases the rule that “[d]enial of leave to amend is
appropriate only when it conclusively
appears that there is no possibility of alleging facts under which recovery can
be obtained.†However, in the cases the
Air District cites, the appellate court found failure to allow amendment an
abuse of discretion because, given the facts of the cases, there was a
reasonable possibility that the pleadings were capable of amendment to state a
cause of action by curing factual defects.
These cases do not stand for the proposition that a court errs in
denying amendment unless it “conclusively†appears there is no possibility of
alleging a cause of action.
Despite
repeatedly referencing per se reversal based on denial of leave to amend when
the pleading shows on its face it is capable of amendment, the Air District
never explains how its complaint was capable of amendment on its face. Instead, the Air District argues it proposed
to amend its petition to allow the water transfers to Metropolitan and
Coachella to proceed while the Board conducts further environmental review if
the trial court so ordered in case No. 83.
This amendment does not cure any factual defect on the face of the Air
District’s petition and is not per se reversible.
Instead, we
review the trial court’s denial of leave to amend for an abuse of
discretion. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) The Air District bears the burden of showing
such an abuse of discretion. (
175 Cal.App.3d 1111, 1118.) Where an
amendment could not have cured the defective pleading, the trial court has not
abused its discretion. (
Cal.App.4th 1429, 1437.)
The Air
District sought to amend its petition by severing all remedies that it believes
might result in prejudice to Coachella or Metropolitan by suspending only the
transfer of water from Imperial to San Diego until completion of a revised EIR. According to the Air District: “Under the revised prayer, the Water Order is
not disapproved so that [Coachella] and [Metropolitan] can still acquire
water. None of [Imperial’s] or [San
Diego’s] other activities (i.e.,
Water Order conditions of approval) are likewise suspended. Because the Water Order is not set aside,
there is no transfer stoppage under the QSA Agreements for [Coachella] and
[Metropolitan]. Therefore, there is no
immediate and serious prejudice to [Coachella] and [Metropolitan] from not
having party status in Case 83.â€
In effect,
the Air District seeks to sever the remedies as they pertain to Coachella and
Metropolitan. However, the Air District
disagrees it seeks severance. Instead,
under the Air District’s analysis, if the Coachella and Metropolitan water
transfers are “not in the Petition, it would not need to be severed from the
[San Diego] water transfer under [Public Resources Code s]ection 21168.9 in any
mandate the court issued.†In other
words, under the proposed amendment, the Coachella and Metropolitan water
transfers simply disappear as if they had never existed.
We are not
convinced by the Air District’s efforts to label its amendment as anything
other than an effort to sever Coachella and Metropolitan. In order to sever remedies in a CEQA action,
the trial court must find “(1) the portion of specific project activity or
activities are severable, (2) severance will not prejudice complete and full
compliance with this division, and (3) the court has not found the remainder of
the project to be in noncompliance with this division.†(Pub. Resources Code, § 21168.9, subd.
(b).)
We rejected
a similar severance proposal in County of
Amador v. City of Plymouth (2007) 149 Cal.App.4th 1089, 1112-1114. There, the plaintiff argued Public Resources
Code section 21168.9 required that the trial court sever any provisions of a
municipal services agreement that violated CEQA, leaving the rest of the
agreement enforceable. The trial court
declined to sever and we affirmed, finding the municipal services agreement’s
CEQA problems were so pervasive severance was impossible. (County
of Amador, supra, 149 Cal.App.4th
at pp. 1112-1113.)
As the Air
District admits, the trial court has the discretion to allow parts of a project
to proceed while CEQA violations are addressed.
Here, the trial court rejected the amendment, finding it would not
sufficiently lessen the prejudice to the unnamed parties. The court acted well within its discretion.
The trial
court observed that there was still a potential loss of 100,000 afy intended
for the parties that they would not be present to defend. In addition, unraveling of the entire
agreement remained a possibility. The
court also noted the issue of allocation of additional mitigation obligations
remained should the transfers to Metropolitan and Coachella continue while
those to San Diego cease. These factors,
along with the court’s fear that the revised remedy could be “unrealisticâ€
since water transferred to Metropolitan and Coachella would not have any less
an impact on air quality than if the water were transferred to San Diego, led
the court to conclude the potential prejudice to the unnamed parties “is not
necessarily abated by the Air Districts’ [sic]
proposal.†We find no abuse of
discretion.
DISPOSITION
The judgment
is affirmed. Respondents and real
parties in interest shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
RAYE , P. J.
We concur:
BLEASE , J.
BUTZ , J.
name="_ftn1" title="">[1] Many of the facts herein are taken from the
facts in our earlier opinion in County of
Imperial v. Superior Court (2007) 152 Cal.App.4th 13 (County of Imperial).
name="_ftn2" title="">[2] The first petition, County of Imperial v. State Water Resources Control Board (Super.
Ct. Sac. County, 2003, No. 03CS00082), lies at the heart of the current
appeal and will be referred to as case No. 82.
