Cal.Rptr.3d 223] APPEAL from a judgment of the Superior Court
of Kern County. Eric Bradshaw, Judge. (Super. Ct. No.
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& Levy, Lisa Perrochet, Robert H. Wright, Burbank,; Hanna and
Morton, Edward S. Renwick, Los Angeles; and John B. Linford,
Bakersfield, for Petitioners and Appellants.
A. Raison, County Counsel, Andrew C. Thompson, Deputy County
Counsel; Holland & Knight, Charles L. Coleman III, Jennifer
L. Hernandez and Daniel R. Golub, for Defendants and
Acting P. J.
November 2015, the Board of Supervisors (Board) of the County
of Kern approved a new zoning ordinance
requiring permits for new oil and gas exploration, drilling
and production. The ordinance imposed a wide range of
environmental and other standards on permit applicants. It
also adopted two procedural pathways for obtaining permits
when the proposed activity would be conducted on split-estate
land (i.e., land where the surface rights and the mineral
rights are held by different owners) zoned for agriculture.
An expedited seven-day pathway is available to permit
applicants who obtain the surface owner’s written consent to
the site plan submitted with the application. In contrast, a
more expensive 120-day pathway must be used when the
applicant has not obtained the surface owner’s signature. One
rationale for the Board’s adoption of the two pathways was to
promote cooperation between the owners of surface rights and
the owners of mineral rights.
Plaintiffs Vaquero Energy, Inc. and Hunter Edison Oil
Development Limited Partnership (collectively, Vaquero) filed
a lawsuit contending the new provisions violated their
constitutional rights to equal protection and due process.
The trial court rejected the constitutional claims and
due process claim asserts the County inappropriately
delegated its permitting authority to private
interests— specifically, the owners of surface
rights— who can arbitrarily withhold their signatures
unless their demands are met. Vaquero contends the
two-pathway system gives the owners of surface rights
effective control over how mineral right owners use and enjoy
their property rights. Vaquero’s [255 Cal.Rptr.3d 224] due
process claim requires the interpretation and application of
a line of United States Supreme Court cases. (See Seattle
Title Trust Co. v. Roberge (1928) 278 U.S. 116');">278 U.S. 116, 49 S.Ct.
50, 73 L.Ed. 210 (Roberge ); Cusack Co. v. City
of Chicago (1917) 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed.
472 (Cusack ); and Eubank v. Richmond
(1912) 226 U.S. 137');">226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156
(Eubank ).) Despite their age, the meaning of these
decisions is far from settled. One commentator stated that
"both courts and commentators have struggled to make
sense of the doctrine emerging from the Eubank
-Cusack -Roberge line of cases."
(Stahl, Neighborhood Empowerment and the Future of the City
(2013) 161 U.Pa. L.Rev. 939, 960 (Stahl ).) More
recently, another commentator described the decisions as a
"jurisprudential muddle." (Davidson,
Localist Administrative Law (2017) 126 Yale L.J. 564, 609,
fn. 209.) Based on our interpretation of these cases, we
conclude the new ordinance does not violate Vaquero’s right
to due process because the owner of the surface rights does
not have final control over how an owner of mineral rights
uses those rights. The final authority over permits is
retained by the County.
Vaquero’s equal protection claim asserts the two procedural
pathways specified in the new zoning ordinance impose
disparate treatment on similarly situated permit applicants.
Vaquero contends the disparate treatment of permit applicants
based on whether they obtained the surface owner’s written
consent does not further a legitimate governmental purpose.
We disagree. Applying the deferential rational basis test, we
conclude the board of supervisors rationally could have
decided the availability of an expedited seven-day pathway
would promote cooperation between owners of mineral rights
and owners of surface rights and reduce conflicts, which is a
legitimate public purpose.
therefore affirm the judgment.
19 of County’s Ordinance Code addresses zoning. In November
2015, County’s board of supervisors adopted Ordinance No.
G-8605 (Ordinance), which amended Chapter 19.98 to County’s
Ordinance Code and modified other zoning provisions. Chapter
19.98 contains procedures and standards applicable to the
exploration, drilling and production of oil and gas.
(Ordinance, � 19.98.010.)
to the adoption of the Ordinance, County’s zoning provisions
did not require a County permit for drilling on lands zoned
for exclusive agriculture, limited agriculture, medium
industrial, heavy industrial and natural resource. County did
require a permit for drilling in certain residential and
commercial districts, though few requests for such
conditional use permits were processed. In addition, oil and
gas activities were subject to (1) the County’s basic
standards for development, building and safety and (2) the
permit requirements of state and regional agencies such as
the Division of Oil, Gas and Geothermal Resources (DOGGR),
the Department of Fish and Wildlife, and the San Joaquin
Valley Air Pollution Control District.
Ordinance adopted a "Tier" system to address
different land uses and the permitting requirements were
tailored to the type of land use within each
Tier. Areas where oil and gas operations are the dominant
surface land use are designated as "Tier 1."
(Ordinance, � 19.98.030(A).) Approximately 10.1 percent of
the project [255 Cal.Rptr.3d 225] area is designated Tier 1
land. The County estimates that Tier 1 lands will contain
approximately 90.6 percent (4,400 acres divided by 4,856
acres) of the acreage disturbed annually by oil and gas
activities permitted under the Ordinance. "Tier 2"
is agricultural land and is distinct from "Tier 3,"
where neither oil and gas nor agricultural surface activities
dominate. (Ordinance, � 19.98.030(B), (C).) "Tier
4" areas are residential, commercial, open space and a
few other categories; applicants must obtain a conditional
use permit to conduct oil and gas activities on Tier 4 lands.
(Ordinance, � � 19.98.030(D), 19.98.050 [conditional use
permit].) "Tier 5" lands include special planning
districts or other areas identified in specific plans. The
specific plan sets forth the provisions governing oil and gas
activities within Tier 5 areas. (Ordinance, � 19.98.030(E).)
Oil and gas activities on Tier 4 and 5 lands are rare.
an oil and gas activity may occur in any Tier 1, 2 or 3 area,
an application for conformity review or minor activity review
must be submitted to and approved by County’s planning
director as consistent with the standards contained in
Chapter 19.98. (Ordinance, � 19.98.040(A).) The Ordinance
describes the planning director’s approval of an application
as "ministerial" rather than discretionary.
constitutional issues raised in this appeal challenge how the
Ordinance’s permitting process applies to land where the
surface rights and the mineral rights are held by different
owners. Such lands are referred to as "split
estate" lands. A significant body of law had developed
addressing the relationship between the owner of the surface
rights and the owner of the mineral rights and their
respective rights and obligations. Generally, the owner of
the mineral rights has an implied easement that burdens the
surface estate and allows the mineral owner to use the
surface as is reasonably required to access the
minerals. A California statute provides that if
a mineral rights owner intends to enter real property and
conduct surface-disturbing activities, such as drilling a new
well or constructing structures, the mineral rights owner
must provide the owner of the surface rights a
minimum of 30 days’ notice. (Civ. Code, � 848, subd. (a)(2).)
The owner of the surface rights may agree to waive the notice
requirement. (Civ. Code, � 848, subd. (c).)
Two Pathways for Split Estates
Tier 1 areas, oil and gas operations are the dominant surface
land use and there is less potential for conflict between
owners of the surface rights and owners of the mineral
rights. Applications for oil and gas activities within Tier 1
areas are subject to conformity review under the procedures
set forth in section 19.98.080 of the Ordinance. For
instance, the site plan presented with the application must
address 12 items listed in section 19.98.080(E) of the
Ordinance, including the location of boundary lines, proposed
wells, roadways, pipelines, and other structures or
facilities. The site plan must "[i]dentify the proposed
[255 Cal.Rptr.3d 226] source of water (domestic or
production), if applicable." (Ordinance, �
19.98.080(E)(8).) The County asserts most oil and gas
activities on Tier 1 lands will qualify for a seven-day
permit process— a process described in greater detail
comparison, Tier 2, 3 and 5 areas have a greater potential
for conflict between owners of the surface rights and owners
of the mineral rights. Applications for oil and gas
activities within these areas are subject to conformity
review pursuant to the procedures stated in section 19.98.085
of the Ordinance. The site plan presented with the
application must address 16 items listed in section
19.98.085(F) of the Ordinance.
for County oil and gas permits for lands designated as Tier
2, 3 or 5 may obtain permits through one of two pathways. The
pathway used depends upon whether the owner of the surface
rights has provided written approval of the site plan.
(Ordinance, � � 19.98.085(G), 19.98.090 [application with
surface owner signature].) When the applicant has satisfied
the conditions specified in the Ordinance, complied with the
applicable notice requirements, and obtained the surface
owner’s signature on the site plan, the permit application
may be submitted under an expedited seven-day pathway.
(Ordinance, � 19.98.090.) Alternatively, where an applicant
is unable to obtain the surface owner’s signature, the only
way to obtain a permit is through a 120-day pathway.
(Ordinance, � 19.98.100 [conformity review without surface
120-day pathway has three main components, which involve a
preapplication notice, submitting the application for review
by the County, and
arranging for an inspector to monitor compliance with
mitigation measures and applicable law after the application
has been approved. Prior to submitting an application, the
applicant must provide the surface owner the 30-day notice
required by Civil Code section 848 and must include a copy of
the proposed site plan along with an offer to meet with the
surface owner. (Ordinance, � 19.98.085(H)(1).)
the application is submitted to the County, there are two
successive 30-day reviews. First, the application is reviewed
for completeness. The County must inform the applicant on the
30th calendar day of receipt that the application is complete
or that additional information is required. (Ordinance, �
19.98.100(B).) In addition, the County must inform the
surface owner of the option for an in-person meeting with
staff of the planning and community development department to
discuss the conformity review process and address questions
about the proposed site plan. (Ordinance, � 19.98.100(B).)
the second 30-day review period, the County schedules a
mandatory meeting with the applicant, provides the surface
owner time to review any revisions to the proposed site plan,
and determines whether "the proposed use meets the
implementation standards and conditions specified" in
the Ordinance. (Ordinance, � 19.98.100(C)(5).) If the County
determines the application meets the Ordinance’s standards,
the permit is issued. (Ordinance, � 19.98.100(C)(5).)
issuance of the permit, the applicant must wait an additional
30 days before starting construction. (Ordinance, �
19.98.100(H).) The post-issuance "period shall be used
to coordinate deposits and inspections pursuant to 19.98.140
(Inspection [255 Cal.Rptr.3d 227] Compliance)."
(Ordinance, � 19.98.100(H).) The applicant must contact the
planning and community development department and
"provide a signed Cost Recovery Agreement, and schedule
an inspector to be present during all activities related to
the Oil and Gas Conformity Review." (Ordinance, �
19.98.140.) The inspector, either from the County or a
third-party retained by the County, shall confirm compliance
with all requirements of the ...