United States District Court, E.D. California
ORDER FOR SUPPLEMENTAL BRIEFING RE PENDING MOTION TO
DISMISS (ECF NO. 17)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
On
March 28, 2019, Plaintiff United States of America filed two
similar lawsuits, one in Sacramento County Superior Court,
the other in this Court, concerning amendments adopted by
Defendant State Water Resources Control Board (“State
Water Board” or “Board”) to the Water
Quality Control Plan for the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary (“Bay-Delta Plan
Amendments” or “Amended Plan”).
See ECF No. 1; ECF No. 18 (Request for Judicial
Notice (“RJN”)), Ex. 6. The First Amended
Complaint (“FAC”) in this (the federal) action
raises three causes of action under the California
Environmental Quality Act (“CEQA”)-(1) failure to
provide an accurate, stable and finite project description;
(2) improper compression of impacts and mitigation; and (3)
failure to Adequately Evaluate Impacts-along with (4) a cause
of action based upon the doctrine of intergovernmental
immunity (“IGI”). ECF No. 14 (“FAC”).
Before
the Court for decision is Defendants' motion to dismiss.
ECF No. 17. The motion argues dismissal of the entire federal
lawsuit is warranted under four separate abstention
doctrines, including Burford v. Sun Oil Co., 319
U.S. 315, 317-318 (1943). Under Burford, federal
courts vested with jurisdiction may nonetheless
“decline to rule on an essentially local issue arising
out of a complicated state regulatory scheme.”
Knudsen Corp. v. Nevada State Dairy Comm'n, 676
F.2d 374, 376 (9th Cir. 1982) (citations omitted). The
doctrine applies when:
first, that the state has chosen to concentrate suits
challenging the actions of the agency involved in a
particular court; second, that federal issues could not be
separated easily from complex state law issues with respect
to which state courts might have special competence; and
third, that federal review might disrupt state efforts to
establish a coherent policy.
Id. at 377. The Supreme Court has not
“provide[d] a formulaic test for determining when
dismissal under Burford is appropriate, ” but
it has made it clear that “Burford represents
an ‘extraordinary and narrow exception to the duty of
the District Court to adjudicate a controversy properly
before it.' ” Quackenbush v. Allstate, 517
U.S.706, 727-28 (2011).
The
Board's argument in favor of application of Burford in
this case rests, at least in part, on the fact that CEQA
claims are central to the federal complaint and that, under
California law, CEQA cases can be given special judicial
priority. Specifically, California Public Resources Code
§ 21167.1(b) provides:
To ensure that actions or proceedings brought pursuant to
[CEQA] may be quickly heard and determined in the lower
courts, the superior courts in all counties with a population
of more than 200, 000 shall designate one or more judges to
develop expertise in this division and related land use and
environmental laws, so that those judges will be available to
hear, and quickly resolve, actions or proceedings brought
pursuant to [CEQA].
Relying
in part on this statute, at least one district court in
California has applied Burford abstention to CEQA
claims. See, e.g., Emeryville Redevelopment
Agency v. Clear Channel Outdoor, No. C 06-01279 WHA,
2006 WL 1390561, at *4-5 (N.D. Cal. May 22, 2006) (CEQA claim
qualified for Burford abstention because
“California has put into place a specialized procedure
to quickly and consistently resolve issues involving land use
and the environment”); see also Coal. for Clean Air
v. VWR Int'l, LLC, 922 F.Supp.2d 1089, 1108 (E.D.
Cal. 2013) (the undersigned finding that “California
has adopted a comprehensive scheme for suits brought under
CEQA” because “California concentrates suits
brought under CEQA before specially designated judges with
specialized expertise in the statute, and that special
procedures apply, including shortened statutes of
limitations, fast-tracked case management, and limited
appellate review, ” but declining to apply
Burford because the state and federal claims at
issue did not turn on an interpretation of CEQA).
However,
while California has implemented legislation that
permits CEQA cases to be concentrated before judges
with experience in the statute, judicially noticeable docket
entries in the United States' parallel state lawsuit
(that post-date the pending motion to dismiss) suggest the
state matter was recently transferred from a judge designated
as a CEQA specialist California Public Resources Code §
21167.1(b) to one that is not (at least not
publicly) so designated. See Sacramento Cty. Sup.
Court No. 34-2019-80003111-CU-WM-GDS, Docket No. 21
(indicating that the case had been reassigned from Department
27 to Department 18); compare Sacramento County
Superior Court 2019 Civil Judicial Assignments, available at
saccourt.ca.gov/civil/docs/cv-2019-judicial-assignments.pdf
(last visited November 4, 2019) (indicating that Department
27 is designated to handle CEQA cases) with
Sacramento County Superior Court Phone Directory- Judicial
(indicating that Department 18 is designated to handle
“Trial/ Civil Harassment TROs/ Fee Waivers (Back-up)/
Misdemeanor Warrants”). Therefore, it is decidedly
unclear whether the parallel state lawsuits are actually
being handled by a judge designated under California Public
Resources Code § 21167.1(b) as a CEQA specialist.
Accordingly,
because the parties have not had the opportunity to address
this issue, the Board shall, on or before November 12, 2019,
file a supplemental brief no longer than five pages in length
explaining its position on how this development impacts the
Burford analysis. Alternatively, the Board may
withdraw its reliance on Burford. Thereafter, ...