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Sierra Club v. California Department of Parks and Recreation et al

January 9, 2012

SIERRA CLUB, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION ET AL., DEFENDANTS AND RESPONDENTS.



Charles S. Crandall, Judge Superior Court County of San Luis Obispo (Super. Ct. No. CV080344)

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

CERTIFIED FOR PUBLICATION

(San Luis Obispo County)

Justice Felix Frankfurter once said: " ' Wise adjudication has its own time for ripening.' " (E.g., In re Marriage of Carpenter (2002) 100 Cal.App.4th 424, 429, citing Maryland v. Baltimore Radio Show (1949) 338 U,S. 912, 918 [94 L.Ed.2d 562, 566].) Here, the trial court exercised judicial restraint, heeded Justice Frankfurter's call, and ruled that the time was not ripe for appellant's lawsuit.

Sierra Club appeals from a judgment dismissing its first amended petition for traditional writ of mandate (Code Civ. Proc., § 1085) and complaint for declaratory and injunctive relief (petition). The petition seeks to compel the California Department of Parks and Recreation (State Parks) to amend its General Development Plan for the Oceano Dunes State Vehicular Recreational Area and ban off-highway vehicle (OHV) recreational activities on property leased from the County of San Luis Obispo. Sierra Club claims that the General Development Plan conflicts with County's Local Coastal Plan map which refers to the leased property as a "buffer area." Sierra Club claims this is a non-vehicle area. The trial court sustained a demurrer without leave to amend, ruling that State Parks has no ministerial duty to amend the General Development Plan. We affirm. As we shall explain, it is too late to review the 1982 coastal development permit that allows OHVs on portions of the leased property. There is no current "development" within the meaning of the Coastal Act, and somewhat ironically, it is too early for judicial review.

Facts and Procedural History

State Parks operates the Oceano Dunes State Vehicular Recreational Area (SVRA) pursuant to a 1982 Coastal Development Permit issued by the California Coastal Commission (Coastal Commission). The SVRA, formerly known as the Pismo Dunes State Vehicular Recreational Area, was created in 1974 to allow recreational use of dune buggies and OHVs near Pismo Beach State Park. It is the only place on the California coastline where the public can drive street legal vehicles on the beach. Approximately two million visitors use the SVRA each year. In 1975, State Parks adopted a General Development Plan that serves as a guide for future development, management, and use of the SVRA. (Pub. Resources Code, §§ 5002.2, subd. (a); 5002.3.)*fn1 Because it is an environmentally sensitive area, the Coastal Development Permit requires that State Parks keep OHVs out of sensitive vegetated dunes and wetlands environment. We presume that State Parks is doing so.

The SVRA includes the La Grande Tract, a 584-acre area that State Parks leases from County of San Luis Obispo (County). In 2007, State Parks offered to purchase the La Grande Tract but the County Board of Supervisors determined that the sale would be inconsistent with County's General Plan and Figure 4 of County's Local Coastal Plan (LCP) which depicts the La Grande Tract as a "buffer area." The factual premise of Sierra Club's lawsuit is that no OHVs are allowed on the La Grande tract. But the LCP does not expressly state that the "buffer area" precludes OHVs on the entire tract.

Although the sale did not go forward, two writ petitions were filed and consolidated on the issue of whether the County General Plan and LCP prohibit OHV activities on the La Grande Tract. (Friends of Oceano Dunes, Inc. v. County of San Luis Obispo, San Luis Obispo County Sup. Ct., Case No. CV070591; Sierra Club v. State of California, San Luis Obispo County Sup. Ct., Case No. CV080344.)*fn2 Sierra Club sought a traditional writ of mandate to compel State Parks to amend its General Development Plan and ban OHV activities on the La Grande Tract. The petition named County and Coastal Commission as real parties in interest and alleged that State Parks was operating the SVRA in violation of the County General Plan and LCP.

State Parks filed a demurrer on the following theory: it had no ministerial duty to amend/revise its General Development Plan or ban OHV activities on the La Grande Tract. State Parks contended that the County LCP, which was certified in 1984, did not change the terms of the Coastal Development Permit or have any direct regulatory effect on State Parks' operation of the SVRA. Because Sierra Club has never challenged the adoption or amendment of the Coastal Development Permit or the General Development Plan, it was barred from challenging State Parks' operation of the SVRA.

The trial court sustained the demurrer without leave to amend ruling that the County LCP imposed no ministerial duty on State Parks to ban OHV activities. It concluded that judicial review of the LCP and General Development Plan must be by administrative mandamus (Code Civ. Proc., § 1094.5) rather than traditional writ of mandate (Code Civ. Proc., § 1085). The trial court ruled that the matter was not ripe for review "because there is no ongoing permit amendment process or agency action that is subject to judicial review."

Standard of Review

We review the order sustaining the demurrer de novo, exercising our independent judgment to determine whether a cause of action has been stated under any legal theory. (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 788.) The judgment will be affirmed if the petition fails to plead an essential element or the allegations clearly disclose some defense or bar to recovery. (Brown v. Crandall (2011) 198 Cal.App.4th 1, 8.) "In determining these issues, we accept as true all facts ...


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