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Siskiyou County Water Users Association v. Natural Resources Agency*Fn1 et al

September 26, 2012

SISKIYOU COUNTY WATER USERS ASSOCIATION, PLAINTIFF AND APPELLANT,
v.
NATURAL RESOURCES AGENCY*FN1 ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 34-2010-80000642-CU-WM-GDS)

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

Siskiyou County Water Users Assn. v. Nat. Resources Agy. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Siskiyou County Water Users Association (SCWUA) challenges a compromise reached among other stakeholders in the Klamath River watershed and government entities. Those parties had agreed to undertake a process for determining whether the restoration of fisheries could be achieved through the removal of dams while maintaining adequate allocations of water and power. Those parties executed two agreements (hereafter compromise agreements), which set forth the process. SCWUA filed a petition for writ of mandate in the Sacramento County Superior Court, raising the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.),*fn2 alleging that the execution of the compromise agreements should have been subject to the CEQA environmental review process before becoming effective. The trial court sustained demurrers to the original and amended pleadings on the ground the action was time-barred (and not ripe for judicial review in one regard), and thereafter entered a judgment of dismissal. SCWUA filed a timely notice of appeal.

In this court, SCWUA reiterates the unsuccessful arguments it made in opposition to the demurrers. It asserts its action is subject to the 180-day limitations period in section 21167 that is applicable where a public agency takes an action without any attempt to comply with CEQA, because a notice filed (of a determination that the execution of the compromise agreements was not within CEQA) was not effective to trigger any of the statute's shorter limitations periods. Alternatively, SCWUA contends the failure of the parties to the compromise agreements to seek legislation identified in the agreements--that specifically would have exempted the execution of the compromise agreements from CEQA's mandates--was a modification of the nature of the activity that restarted the limitations period, or gave rise to equitable estoppel. Finally, SCWUA contends that the lead agency designated in one of the agreements as responsible for the CEQA reviews called for under the compromise is improper and must be set aside. We are not persuaded and shall affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

We assume the truth of all well-pleaded factual allegations in the amended petition (disregarding any legal conclusions), and then determine de novo whether they state a cause of action. (Robison v. City of Manteca (2000) 78 Cal.App.4th 452, 455, 456.) We disregard any factual allegations that conflict with the compromise agreements appended to the petition, along with any allegations as to their legal effect (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505), because the interpretation of the compromise agreements is subject to our de novo review (Sprinkles v. Associated Indemnity Corp. (2010) 188 Cal.App.4th 69, 76).

In February 2010, 40-odd parties*fn3 executed an agreement, the Klamath Hydroelectric Settlement Agreement (settlement agreement), for the purpose of "establishing a process" for the potential removal of the dams associated with the generation of hydroelectric power on the Klamath River, if this would advance the restoration of the fisheries in its watershed. If federal authorities came to this conclusion after environmental review, both of the affected states (Oregon and California) then needed to concur as well after conducting their own environmental review; if not, the removal process in the settlement agreement would terminate.

The settlement agreement specifically recited that in the course of implementing its procedures the parties "shall comply with . . . CEQA" (among other environmental protections). It further provided that none of its provisions "shall be construed to predetermine the outcome of any Regulatory Approval or other action by a Public Agency Party necessary . . . to implement this Settlement." It designated California's Department of Fish and Game (DFG) as the "lead agency" (§§ 21067, 21165) for the environmental review of "Facilities Removal and associated actions prior to [the State of California's] decision whether to concur with" a federal determination in favor of removal.

Concurrent with the settlement agreement, many of the same parties (along with others) executed a Klamath Basin Restoration Agreement (KBRA). The purpose of the KBRA was to find solutions for the restoration of the fisheries while maintaining reliable water and power supplies.

The KBRA also expressly provided that it should not "be construed to modify the application of" CEQA to environmental review of any project undertaken pursuant to the KBRA, and obligated each participating public agency to "undertake environmental review as required by Applicable Law . . . before commitment to, any . . . action . . . under this Agreement."

Appearing in appendices to the settlement agreement was proposed federal and California legislation. In a general recitation, "The Parties acknowledge that legislation is necessary to provide certain authorizations and appropriations to carry out this Settlement as well as the KBRA." In addition to promises to support the enactment of the federal legislation, the State of California agreed to recommend the state legislation, which would include provisions that the execution of the two compromise agreements was not a "project" (§ 21065) subject to CEQA review, and that the DFG was a proper lead agency (§ 21067) for any CEQA review required in the settlement agreement. However, only the failure to enact the federal legislation was identified as an event terminating the settlement agreement.

The KBRA also contained appendices of proposed federal and state legislation (including the same CEQA enactments as in the settlement agreement). It also recited the acknowledgement that the "implementation of certain obligations under this Agreement" required authorizing legislation or appropriations, and pledged the support of the parties for the enactment of such legislation.

The two agreements also expressly declared that they did not intend to create any third party beneficiaries: "This Settlement is not intended to and shall not confer any right or interest in the public, or any member thereof, or on any persons or entities that are not Parties hereto"; "This [KBRA] does not create any right in the public, or any member thereof, as a non-Party beneficiary."

On February 25, 2010, the NRA filed what it termed a "Notice of Determination" (NOD), citing former Public Resources Code section 21108, with the State Clearinghouse (Gov. Code, § 65040.10). The notice recited NRA's determination that the execution of the compromise agreements was not a "project" within the meaning of CEQA because it did not bind the NRA or any other public agency to any course of action and merely established a process that would include the necessary environmental reviews before taking any actions.

In June 2010, the DFG filed a notice of preparation (§ 21080.4; Cal. Code Regs, tit. 14, § 15375*fn4 ) that it would be preparing a draft environmental impact report (EIR) "to evaluate whether to remove four dams on the Klamath River" pursuant to the compromise agreements. In response, SCWUA*fn5 submitted comments that the DFG was not the proper lead agency, and that the DFG had previously taken a position that it was not the proper lead agency in connection with a dam removal.

In an apparent effort to apply its own pressure to the careful balance established in the compromise agreements applecart, SCWUA filed a petition for a writ of mandate (and complaint for declaratory and injunctive relief) in August 2010. SCWUA named a number of the California participants in the compromise agreements as defendants.*fn6 The trial court sustained a demurrer on various grounds in January 2011. Although it did not believe SCWUA could remedy the defects, the court granted leave to amend because this was the initial pleading.

In February 2011, SCWUA filed an amended petition for writ of mandate (which omitted the request for declaratory and injunctive relief). It reasserted that the execution of the compromise agreements was subject to environmental review under CEQA, and challenged the designation of the DFG as the lead agency. In an effort to forestall the issue of the limitations period, the amended petition challenged the legal validity of the NOD filed in February 2010. It also noted the failure of the parties to seek the proposed CEQA legislation; it contended this failure either estopped defendants from raising the defense of the limitations period, or was a substantial modification of a project subject to CEQA that resulted in ...


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