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Planning and Conservation League v. Castaic Lake Water Agency

December 17, 2009

PLANNING AND CONSERVATION LEAGUE ET AL., PLAINTIFFS AND APPELLANTS,
v.
CASTAIC LAKE WATER AGENCY, DEFENDANT AND APPELLANT;
KERN COUNTY WATER AGENCY ET AL., REAL PARTIES IN INTEREST AND APPELLANTS;
CALIFORNIA DEPARTMENT OF WATER RESOURCES, REAL PARTY IN INTEREST AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Reversed and remanded with directions. (Los Angeles County Super Ct. No. BS098724).

The opinion of the court was delivered by: Manella, J.

CERTIFIED FOR PUBLICATION

Planning and Conservation League (PCL) and California Water Impact Network (CWIN) sought administrative mandamus (Code Civ. Proc., § 1094.5) in actions involving Castaic Lake Water Agency (Castaic). Their petitions challenged an environmental impact report (EIR) certified by Castaic pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) concerning a transfer of water from Kern County Water Agency (Kern) and Wheeler Ridge Maricopa Water Storage District (Wheeler Ridge) to Castaic. Although the trial court rejected PCL's and CWIN's key contentions, it found that the EIR contained a defect, and issued a writ of mandate directing Castaic to decertify the EIR. PCL and CWIN appealed, challenging the trial court's rejection of their contentions; Castaic, Wheeler Ridge, and Kern cross-appealed, challenging the issuance of the writ. We conclude that the trial court correctly rejected PCL and CWIN's principal contentions, but erred in issuing the writ. We thus reverse.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The underlying actions culminate longstanding disputes concerning the water transfer in question, which arises within California's State Water Project (SWP). This is the third time we have addressed issues related to Castaic's attempt to certify an EIR concerning the transfer in compliance with CEQA. We summarize the history preceding our first two opinions before describing the facts pertinent to the present appeal.

A. SWP

California Department of Water Resources (DWR) manages the SWP, a system of dams, reservoirs, canals, and aqueducts that delivers water from the so-called "Delta" area of the Sacramento River to Central and Southern California. The SWP, as planned, was to deliver 4.23 million acre-feet of water annually.*fn1 Because the SWP has not been completed, it delivers an average of 2.96 million acre-feet per year.

In 1961, DWR entered into contracts for the provision of water to local suppliers. At present, 29 local suppliers have contracts with the DWR, including Castaic and Kern. The contracts have standardized provisions. Each contract identifies a maximum amount of water -- often called the "Table A water" -- that DWR has agreed to provide to the contractor, if the water is available. Delivery of the full amount of Table A water is not assured.

As initially executed, the contracts addressed shortages in article 18. In the case of a temporary shortage, article 18(a) imposed reductions first on contractors supplying water for agricultural purposes; in the case of a permanent shortage, article 18(b) imposed a prorated reduction on each contractor through amendment of the Table A water amount stated in the contract.

B. Monterey Agreement

Historically, DWR has delivered less water that the total amount of Table A water identified in the contracts. Until the late 1980's, the shortfall caused few problems because the contractors did not demand their full allocation of Table A water. In the late 1980's and early 1990's, a drought reduced DWR's deliveries below the amounts requested by the contractors, resulting in reductions to contractors supplying water for agricultural purposes. Disputes arose between these contractors and contractors providing water for urban areas.

In December 1994, the DWR and five contractors met in Monterey and negotiated fourteen broad principles regarding amendment of the contracts. The so-called "Monterey Agreement" approved amendments that changed the allocations of water to agricultural and urban suppliers. The contracts were to be amended to eliminate the water reduction provisions in article 18 -- including the "agriculture first" provision in article 18(a) -- and to provide instead that each supplier was entitled to a prorated portion of the available water, based on its Table A amount, regardless of whether the water was used for agricultural or urban purposes. In addition, the permitted amendments freed 130,000 acre-feet of water previously allocated to agricultural use for transfer to urban suppliers. DWR agreed to "expeditiously approve permanent sales of entitlements among [c]ontractors."

In 1995, the Central Coast Water Authority (Central Coast), one of the 29 contractors, prepared and certified an EIR under CEQA regarding the Monterey Agreement. Over the following two years, 27 of the 29 contractors -- including Castaic and Kern -- amended their contracts to conform to the Monterey Agreement. These amendments are sometimes called the "Monterey Amendments."*fn2 Article 53 of Castaic's amended contract reflects a provision of the Monterey Agreement permitting Kern and other agencies to participate in, and approve, permanent water transfers totaling 130,000 acre-feet per annum.

C. Kern-Castaic Transfer

In March 1999, Castaic entered into an agreement to buy a permanent entitlement to 41,000 acre-feet of SWP water from Wheeler Ridge, which receives SWP water from Kern. DWR and Kern approved the transfer. On March 29, 1999, Castaic certified an EIR under CEQA that "tiered off" the EIR that Central Coast had certified regarding the Monterey Agreement.*fn3

1. Challenge to the 1999 EIR

On April 30, 1999, the Friends of the Santa Clara River (Friends) sought administrative mandamus regarding the certification of the EIR (Friends action). In July 2000, the trial court denied Friends' petition. While Friends' appeal from the denial was pending before this court, the Court of Appeal for the Third Appellate District determined that the Monterey Agreement EIR was defective and ordered it decertified. (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892 (Planning & Conservation League).) The court held that Central Coast had improperly acted as lead agency regarding the EIR, and that DWR must prepare and certify a new EIR. (Id. at pp. 903-907.) In addition, the court ruled that the new EIR's assessment of the "no project" alternative -- that is, the retention of the pre-Monterey-Agreement contracts -- must discuss the impact of implementing subdivision (b) of article 18, the contract term dealing with permanent water shortages. (Id. at pp. 908-920.)

In Friends of the Santa Clara River v. Castaic Lake Water Agency (2002) 95 Cal.App.4th 1373, 1384 (Friends I), this court concluded that Castaic's EIR was defective because it tiered off the decertified Monterey Agreement EIR. As we noted, the 1999 EIR relied on the decertified Monterey Agreement EIR to establish that the environmental effects of the Monterey Agreement, including "upstream effects of the [Kern-Castaic transfer]," were negligible. (Id. at pp. 1384-1385.) We further stated: "We have examined all of [Friends'] other contentions and find them to be without merit. If the []tiering problem had not arisen, we would have affirmed the judgment." (Id. at p. 1338, italics deleted.) We thus directed the trial court to issue a writ vacating the certification of Castaic's EIR, and to retain jurisdiction until Castaic certified an EIR in compliance with CEQA. (Id. at p. 1388.)

In issuing the writ on October 25, 2002, the trial court rejected Friends' request for an injunction barring Castaic from acquiring and using water through the Kern-Castaic transfer until Castaic complied with CEQA. In December 2002, Friends appealed from this ruling. We granted requests by PCL to submit a brief as an amicus curiae and participate in oral argument.

In mid-2003, while Friends' appeal from the denial of injunctive relief was before us, the parties in the litigation regarding the Monterey Agreement EIR entered into a settlement agreement, often called "Monterey Plus." The agreement permitted compliance with the Monterey Agreement pending DWR's certification of the new EIR, but obliged DWR to include an analysis of the potential environmental effects of the Kern-Castaic transfer. Regarding the action over the Kern-Castaic transfer, the agreement stated: "The Parties agree that jurisdiction with respect to that litigation should remain in [the Los Angeles County Superior Court] and that nothing in this Settlement Agreement is intended to predispose the remedies or other actions that may occur in that pending litigation."

In December 2003, we affirmed the denial of injunctive relief in an unpublished opinion. (Friends of the Santa Clara River v. Castaic Lake Water Agency (Dec. 1, 2003, B164027) (Friends II).)

2. Castaic's 2004 EIR

On December 22, 2004, Castaic certified a second EIR, adopted a mitigation program and statement of overriding considerations, and approved the Kern-Castaic transfer. The EIR describes the project as the transfer of 41,000 acre-feet of Table A water from Kern and Wheeler Ridge to Castaic, which also involves the use of SWP facilities elsewhere. According to the EIR, the project "currently is being implemented by an amendment to the SWP water supply contracts of [Castaic] and [Kern] executed in 1999." It further states that DWR, Kern, and Wheeler Ridge approved the 1999 contract amendments, that the transfer was "contractually completed in 1999," and that "[n]o permits and other approvals would be required other than the certification of this EIR." The EIR describes the underlying history, including the Monterey Agreement and Amendments, the decertification of the Monterey Agreement EIR and 1999 EIR, and the Monterey Plus settlement agreement.

Regarding the water transfer, the 2004 EIR contains a section entitled "Areas of Known Controversy," which states: "The previous EIR on the Project was decertified because it tiered from the Monterey Agreement [] EIR, which itself [was] decertified as a result of an appellate court decision. The present EIR does not tier from this or any other EIR, and examines environmental impacts that would occur with and without the change in water allocation criteria implemented as part of the Monterey Amendment[s]. Although the Monterey Amendment[s] continue[] in operation under the [Monterey Plus settlement agreement], this EIR evaluates a reasonable worst-case scenario of SWP operations without the Monterey Amendment[s]."

In analyzing the transfer's environmental impacts, the 2004 EIR examines three "scenarios" regarding the transfer. The EIR states: "The transfer of [the] Table A amount that is the subject of this EIR was implemented under [the] permanent transfer provision of the Monterey Amendment[s], although the transfer could be implemented under Article 41 of [Castaic's] original Water Supply Contract."*fn4 The EIR further explains: "DWR is in the process of preparing a new EIR for the Monterey Amendment[s]. Since the Monterey Amendment[s] change[] the way SWP supplies are allocated among Contractors, this EIR provides three separate analyses of the Project's impacts to water supply available to [Wheeler Ridge] and [Castaic]. The three analyses represent three possible scenarios for allocating available SWP water supplies among Contractors, and provide an evaluation of the amount of SWP supply that would be associated with the 41,000 [acre-feet] of Table A Amount under each of the allocation scenarios." The three scenarios examined in the 2004 EIR are: (1) SWP allocation with the Monterey Amendments; (2) SWP allocation without the Monterey Amendments, and with the "agriculture first" reduction provision of article 18(a) in place; and (3) SWP allocation without the Monterey Amendments, but with permanent cutbacks under article 18(b).

The scenarios examine how the water allocation criteria under the pertinent contractual regimes would affect DWR's delivery of water for the transfer during water shortages. The first scenario assumes that the transfer is implemented under the Monterey Amendments, and addresses the delivery of water under the allocation criteria of the Monterey Amendments. The remaining two scenarios assume that the transfer is implemented under the pre-Monterey Agreement contractual regime, which incorporated different allocation criteria for temporary and permanent shortages. Specifically, the second scenario examines the possibility of temporary shortages, and assesses the delivery of water under article 18(a) of the pre-Monterey Agreement contracts, which concerns temporary shortages; the third scenario contemplates a permanent shortage, and assesses the delivery of water under article 18(b), which concerns permanent shortages.

The 2004 EIR examines the environmental effects of the transfer under all three scenarios for the SWP (and associated facilities), Wheeler Ridge, and Castaic. According to the EIR, the transfer will have no significant impacts on the SWP or the Wheeler Ridge service area. Regarding the Castaic service area, the EIR concludes that the transfer will have some significant indirect impacts (largely associated with new population growth), and proposes mitigation measures to address these impacts.

The 2004 EIR also examines five alternatives to the transfer, including a "[n]o [p]roject" alternative, under which Castaic would obtain neither the 41,000 acre-feet of water nor the contractual rights to it. The remaining alternatives study the impact of relying on groundwater or desalinated seawater, and of receiving less or more than 41,000 acre-feet of SWP water.

3. Underlying Challenge to 2004 EIR

In late December 2004, Castaic filed a return to the writ issued by Los Angeles County Superior Court, asserting that the 2004 EIR complied with the writ. On January 24, 2005, PCL and CWIN initiated separate actions in Ventura County Superior Court, seeking administrative mandamus on the ground that the EIR contravened CEQA.*fn5 Their petitions named Castaic as respondent, and Kern, Wheeler Ridge, and DWR as real parties in interest.

On February 1, 2005, Friends voluntarily dismissed its action with prejudice. Accompanying the dismissal was an explanation from Friends' counsel, who noted the existence of PCL's and CWIN's actions, and stated: "While Friends believes that the new [EIR] neither complies with [CEQA] nor [complies] with the views expressed [in the Friends I opinion], Friends does not desire to initiate an entirely new legal challenge to the 2004 [EIR] due to limited funding of this not-for-profit organization."

By ex parte application, Castaic sought to vacate the dismissal, arguing that it contravened our directions in Friends I and Friends II, and was intended to assist PCL and CWIN "in their forum shopping exploits in Ventura." In opposing the application, Friends' counsel stated: "We can give up, and we have given up. We may not want to, but Friends does not have the financial wherewithal to continue going on contesting new EIR[]s." The trial court denied the ex parte application. Castaic sought relief from this ruling by petition for writ of mandate, which we denied.*fn6

Before the Ventura County Superior Court, Castaic demurred to PCL's and CWIN's actions, contending that the doctrine of res judicata barred them, and that only the trial court in the Friends' action had jurisdiction over PCL's and CWIN's claims. In May 2005, the Ventura County Superior Court consolidated the actions. In July 2005, the court concluded that venue was proper in Los Angeles County Superior Court and transferred the actions, but otherwise declined to rule on Castaic's demurrers.

Following the transfer, the trial court overruled the demurrers, finding the petitions were not barred by res judicata. On April 2, 2007, following trial, the court issued its statement of decision on PCL and CWIN's petitions. The court rejected their principal challenges to the 2004 EIR, but nonetheless found that there was "a hole" in the EIR. Specifically, the court concluded that the EIR did not adequately explain the relevance of the pending Monterey Agreement EIR to the three water delivery scenarios discussed in the 2004 EIR. On May 22, 2007, the trial court issued a peremptory writ directing Castaic to set aside the EIR and cure the identified defect.

DISCUSSION

On appeal, PCL and CWIN renew their contentions of error regarding the 2004 EIR; in the cross appeal, Castaic, Kern, and Wheeler Ridge (cross-appellants) argue that the doctrine of res judicata precludes appellants' actions regarding the EIR, and that the trial court erred in determining that the EIR is defective.*fn7 For the reasons explained below, we conclude that the EIR contains no material defects, and otherwise reject the parties' contentions.

A. Res Judicata

We begin by examining cross-appellants' contention that the doctrine of res judicata bars the challenges to the 2004 EIR.

1. Governing Principles

As cross-appellants raised the defense of res judicata by demurrers to PCL's and CWIN's petitions, our review follows established principles. "If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. [Citation.] In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state. [Citations]." (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.) Here, the trial court took judicial notice of pertinent records from the Friends action, ...


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