Opinion
E051370 Super.Ct.No. RIC477696
08-05-2011
FRIENDS OF THE NORTHERN SAN JACINTO VALLEY, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF FISH AND GAME et al., Defendants and Respondents; CALIFORNIA WATERFOWL ASSOCIATION, Real Party in Interest and Respondent.
Law Offices of Susan Nash and Susan Nash for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney General, and Michael W. Hughes, Deputy Attorney General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed.
Law Offices of Susan Nash and Susan Nash for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney General, and Michael W. Hughes, Deputy Attorney General, for Defendants and Respondents.
No appearance for Real Party in Interest and Respondent.
I. INTRODUCTION
Plaintiff and appellant Friends of the Northern San Jacinto Valley (Northfriends) petitioned the superior court for a writ of mandate pursuant to the California Environmental Quality Act (CEQA). Defendants and respondents are California Wildlife Conservation Board (the Board) and the California Department of Fish and Game (the Department). A subject of the petition was the Board's approval of a project to restore and enhance a portion of the San Jacinto Wildlife Area (SJWA).
The superior court denied the petition and, in an unpublished opinion, we reversed. (See Friends of the Northern San Jacinto Valley v. California Department of Fish and Game (June 25, 2009, E045894) [nonpub. opn.] (Friends I).) We directed the superior court to issue a peremptory writ to defendants directing them to vacate and set aside the approval of the project and to not take any further action with respect to the project without first complying with CEQA. (Friends I, supra.)
We have taken judicial notice of our opinion in Friends I, as well as the record on appeal in that case.
Following remand, the court issued the peremptory writ. Defendants filed a return to the writ, to which Northfriends objected. The court struck certain portions of the return and otherwise overruled the objections. Northfriends appealed.
For the reasons set forth below, we reject Northfriends's arguments and affirm the trial court's order.
II. FACTUAL AND PROCEDURAL SUMMARY
A. Background
In November 2006, real party in interest California Waterfowl Association (CWA), a nonprofit organization, applied to the Board for a grant of $677,000 to enhance and restore 520 acres of the SJWA. As we noted in our prior opinion, the application "is detailed in its description, specific as to the proposed restoration and enhancement activities, supported by design maps showing precise locations of new equipment and facilities, and includes an itemized budget." (Friends I, supra.)The Board approved the "project as proposed" in February 2007.
According to the application, "existing habitat will be redesigned and infrastructure will be added to allow for wetland management that is currently not possible. The proposed project will construct a master delivery and drainage system. The water delivery system will allow for independent delivery to all of the wetland units. The drainage system will also allow for independent drainage and a lift pump and pipeline will be added to allow for recirculation of water throughout the units." In particular, the project involves the following activity: transporting "165,000+ cubic yards of soil to enhance and restore wetland topography, construct necessary perimeter levees, develop wetland diversity, provide infrastructure for water management, and create upland buffers"; constructing "islands, submerged berms, and peninsulas to further diversify wetland unit topography and plant species diversity"; installing "36 concrete water control structures to allow for efficient and precise water management"; purchasing and installing "a lift pump to recirculate water"; drilling a "new deep well and install[ing] a new electric pump to help supply a dependable source of water to the project area"; adding "irrigation valves and pipelines from the new well, lift pump and the existing deep well for improved water movement"; transplanting "hard-stemmed bulrush (tules) throughout the enhanced and restored wetlands to establish beneficial emergent cover"; and planting "perennial grasses . . . on 35-50 acres of uplands for nesting cover establishment."
In August 2007, Northfriends filed a petition for writ of mandate in the superior court seeking to set aside the Board's approval of the project and to enjoin the Department from issuing any permits for the project or allowing any other action that would affect the environmental integrity of the project site. Northfriends alleged that the Board approved the project without complying with its obligations under CEQA. After a hearing, the trial court denied the petition and entered judgment for defendants. Northfriends appealed.
By the time the matter came before us, the parties agreed that construction on the project had been suspended and, according to defendants, was "largely complete." Nevertheless, we rejected defendants' mootness claim and addressed the merits in light of evidence that the "project is ongoing and will be the subject of further CEQA review." (Friends I, supra.)
We reversed. In our disposition, we directed "the trial court to issue a peremptory writ . . . directing the [defendants] to: (1) vacate and set aside the approval of CWA's application; and (2) not take any further action with respect to the project without first complying with their obligations under CEQA." (Friends I, supra.)
In footnote 13 of our opinion, we addressed an issue raised by Northfriends during oral argument regarding the word "project" in the disposition. We stated: "The 'project,' as defined in Northfriends'[s] petition for writ of mandate and as described in the arguments on appeal, refers to the work described in CWA's application for a grant from the [Board]. During oral argument, Northfriends argued that the peremptory writ should preclude not only further work with respect to the project, but extend to any action on the project site. Although Northfriends did seek in its writ of mandate to enjoin any 'actions which would affect the environmental integrity of the Project Site . . . ,' the arguments asserted on appeal have been focused on the validity of [the Board's] approval of the project. We therefore decline to reach issues concerning actions taken that are not encompassed within the project. Following remand, the trial court may consider whether a broader injunction is appropriate." (Friends I, supra.) B. The Stipulated Judgment, Writ, and the Return to the Writ
After remand, Northfriends did not seek, and the court did not issue, the "broader injunction" that was permitted by footnote 13. Instead, the parties stipulated to the entry of judgment and a peremptory writ of mandate in which the first two paragraphs mirrored our disposition. The writ directs defendants to: "(1) Vacate and set aside the Board's February 15, 2007, approval of the [CWA's] application for a grant to construct the San Jacinto Wetlands Restoration Project[; and] [¶] (2) Not take any further action with respect to the San Jacinto Wetlands Restoration Project without first complying with their obligations under [CEQA]."
A third paragraph of the writ states: "(3) Under Public Resources Code section 21168.9[, subdivision] (b), this Court will retain jurisdiction over [defendants'] proceeding by way of a return to this peremptory writ of mandate until the Court has determined that [defendants] have complied with the provisions of CEQA. [Defendants] must file a return to this writ no later than March 15, 2010." A fourth paragraph related to attorney fees and costs.
The court entered the judgment and issued the peremptory writ on November 12, 2009.
On March 15, 2010, the Board and the Department filed a return to the writ. It contains two parts that are relevant here. In the first part, the return states that the Board "vacated and set aside its February 15, 2007, approval of [CWA's] application for a grant to construct the San Jacinto Wetlands Restoration Project." Copies of the Board's resolutions vacating and setting aside the approval are attached to the return.
In the second part, the return stated: "Respondent Department has complied with [CEQA] at the Project Site. It has performed routine maintenance at the Site which is categorically exempt from CEQA. It has provided the public with notice of these actions." Attached to the return are copies of the Department's notices of exemption. The return concludes: "Thus, [defendants] respectfully submit that they have complied with this Court's Writ." C. Northfriends's Objections to the Return
Northfriends filed written objections to the return. Among other objections, Northfriends asserted that the return must be more specific as to what actions the Board was vacating and setting aside. Northfriends further asserted that the notices of exemption included with the return do not comply with the requirements of the writ or this court's opinion in Northfriends I. According to Northfriends, the return must state that the defendants will "suspend any and all activities to further implement or further improve the San Jacinto Wetlands Restoration Project Site, including but not limited to: . . . any and all routine maintenance . . . ."
At the hearing on Northfriends's objections, Northfriends acknowledged it had abandoned the argument that the writ be extended to activity beyond the project.Following a hearing on the objections, the court struck the second part of the return, which related to defendants' compliance with CEQA at the project site, the routine maintenance performed on the site, the categorical exemption of such maintenance, and the notices of exemption attached to the return. The court otherwise overruled the objections. The court gave the following explanation for its ruling:
Northfriends's counsel stated: "Because footnote 13 was regard to additional issues that I had raised in the Appellate Court. They rejected those arguments and sent it down to you. I didn't raise them with you, so I'm dropping them" and "I've abandoned the issue of doing any work on the project site pending the CEQA document."
"I've read the Appellate Court decision which directs this matter obviously back to the trial court level. And the Appellate Court indicated that following remand, the trial court could consider whether a broader mandate was appropriate. And I believe that language is contained in the footnote to the actual opinion, that being footnote 13. Thus, the Court of Appeal essentially invited the [Northfriends] to attempt to broaden the peremptory writ to include not just the work on this specific project, but on any actions on the project site.
". . . Northfriends, and [defendants], declined, apparently, that invitation.
"The Court has . . . a stipulation for the peremptory writ, and a judgment granting the peremptory writ that were presented to the Court for signature and filing. It appears to me that [defendants], all they needed to do in response to the peremptory writ was [to] file a return indicating that they had fully complied otherwise.
"But [defendants] went a little bit further with their return. The paragraphs in question that were stricken indicate [defendants] have complied by also performing routine maintenance at the site which is categorically exempt from CEQA. And attached were notices of exemption for these other actions.
"Northfriends objected to the return by seeking more detail about [defendants'] conduct in setting aside the approval of CWA's application and seeking broader suspension of actions by [defendants] not just on the project, but also as to the project site as to the entire wildlife area.
"With respect to the former, [defendants'] assertion of compliance is sufficient, setting aside the February 25, 2010 approval of CWA's application for grant to construct the SJWA restoration project and the attached exhibits.
"With respect to the broader suspension of actions within the SJWA, Northfriends could have sought to broaden the judgment and peremptory writ. As indicated in footnote 13 of the Appellate Court opinion, it chose not to do that. The writ was limited to the CWA project.
"The Court cannot now expand its writ by belatedly imposing more conditions on [defendants'] compliance with the writ. On the other hand, the same is true for [defendants]. The peremptory writ is limited to the CWA project. [Defendants] had no basis for trying to state that project other than the CWA project [was] part of the compliance with the writ." D. Northfriends's Application for an Order to Show Cause
In June 2010, Northfriends filed an application for an order to show cause in which it sought an order compelling defendants "to prepare a legally adequate Return to the Peremptory Writ of Mandate . . . ." Northfriends argued that in order to comply with the writ, defendants must inform the court "how they will be fulfilling their obligations under CEQA . . . for the entire 520 acre San Jacinto Wetlands Restoration Project before taking any further action to complete the Project . . . ." Northfriends further argued that the notices of categorical exemption that were initially attached to the return to the writ (and subsequently stricken) do not comply with the writ.
The trial court denied the application in a written ruling that states:
"The application is essentially an improper and untimely motion for reconsideration of the court's previous ruling on [Northfriends's] objections to the return.
"In any event, the application is without merit. It appears that there are continuing actions and projects undertaken by [the Department] within the SJWA. The Court of Appeal recognized this. Footnote 13 of the appellate opinion noted that 'The "project" as defined in Northfriends'[s] petition for writ of mandate and as described in the arguments on appeal, refer to the work described in CWA's application for grant from the [Board]. During oral argument, Northfriends argued that the peremptory writ should preclude not only further work with respect to the project, but extend to any action on the project site. . . .' The Court of Appeal went on to indicate that following remand, the trial court could consider whether a broader mandate was appropriate. Thus, the Court of Appeal essentially invited the parties and the trial court to broaden the peremptory writ to include not just the work described in the grant application but also to other activity on the project site.
"The parties, including [Northfriends], declined the invitation. They stipulated to a judgment and a peremptory writ limited solely to the specific project proposed by CWA. Nothing in the peremptory writ obligates [defendants] to continue with the project, or to comply with CEQA in any specified manner, or to take any particular actions in connection with any other activities.
"This court is satisfied that [defendants] have complied with the peremptory writ. This case is over. The court will continue to resist the parties' efforts to broaden the scope of its mandate or prolong litigation in connection with the return. Consistent with this objective, the court previously struck the last two paragraphs from [defendants'] return. [Northfriends's] continuing attempts to broaden the scope of this action or enlarge [defendants'] obligations regarding the return are similarly rejected."
In its notice of appeal, Northfriends stated it was appealing from the court's June 30, 2010, ruling regarding the order to show cause. This court initially dismissed the appeal on the ground it was an appeal from an unappealable order. Upon motion by Northfriends, we vacated the order of dismissal and reinstated the appeal, treating it as an appeal from the court's April 30, 2010, ruling on Northfriends's objections to the return of the writ. That ruling is appealable. (See City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 971.)
III. ANALYSIS
Northfriends asserts that defendants' return to the writ is not legally adequate. According to Northfriends, defendants "must file a preliminary return to the writ indicating when an Environmental Impact Report (EIR) or Mitigated Negative Declaration (MND) will be prepared specifically for the San Jacinto Wetlands Restoration Project. When the appropriate CEQA document has been prepared, [defendants] must file a further return explaining what action it has taken to satisfy the requirements of the writ."
Nothing in the writ or the record supports Northfriends's assertions. The relevant portion of the writ states that defendants shall "[n]ot take any further action with respect to the San Jacinto Wetlands Restoration Project without first complying with their obligations under [CEQA]." By its terms, this aspect of the writ is generally prohibitory in nature and only conditionally mandatory. If defendants decide not to take any further action with respect to the project, there is no CEQA document that must be prepared. There would simply be no point to preparing an environmental impact report or doing the other tasks Northfriends insists defendants must do. If, however, defendants decide to proceed with the project, the writ (and our prior opinion) makes clear that they can do so only if they comply with their obligations under CEQA. Then, and only then, will a CEQA document need to be prepared.
Northfriends argues that the notices of exemption that were filed with the initial return of the writ do not comply with the requirements of the writ. The argument is a red herring. In response to Northfriends's objections, the court struck the notices of exemption from the return. To that extent, Northfriends got what it asked for. The only parties that could complain about the striking of the notices are defendants, and they have not challenged that ruling. As a result, the notices of exemption are no longer included in the return and any question as to whether they comply with the writ is moot.
Northfriends's arguments concerning the adequacy of the notices of exemption under CEQA are likewise not properly before us. The issue before the trial court was the adequacy of defendants' return to the writ. By the parties' stipulation, the scope of the writ was limited to the project; it did not extend to other activity on the project site. The notices of exemption were stricken from defendants' return because they were extraneous to the project and therefore extraneous to the writ. Because the notices of exemption were extraneous to the writ, the legality of the notices under CEQA was irrelevant to the issue of the adequacy of the return and therefore irrelevant to our review of the court's determination of that issue.
As the trial court correctly noted, Northfriends had the opportunity to seek injunctive relief as to work on the project site above and beyond the project itself, but declined to do so. Having stipulated to the entry of judgment and the issuance of the limited peremptory writ, it cannot attempt to enjoin actions outside the scope of the project by way of challenging the return to the writ. Northfriends has (or had) whatever means the law provides for challenging the notices of exemption, but objections to the return of a writ that did not pertain to the subject of the notices is not one of them.
Northfriends next argues that defendants "have failed to comply with their self imposed obligation to fulfill their obligations under CEQA before taking any action which would affect the environmental integrity of the project site." (Underlining omitted.) They begin by asserting that defendants "admit in their Return that they are required to comply with CEQA when they do routine maintenance on the 520 acre Project Site." Although Northfriends does not explicitly say how defendants made this admission, it appears it is referring to the erroneous inclusion of the notices of exemption in the return to the writ. By doing so, Northfriends explains that defendants attempted to comply with Northfriends's initial request to enjoin all activity on the site even though, as Northfriends acknowledges, that injunction was "omitted from the writ of mandate." Northfriends concludes that defendants must therefore acknowledge their duty not to perform any routine maintenance or repairs until an environmental impact report or mitigated negative declaration for the site is certified. The argument is without merit. Defendants' references to and inclusion of the notices of exemption regarding routine maintenance in their return to the writ were unnecessary and erroneous. Defendants' mistake, however, cannot reasonably be construed as constituting an admission as to the scope of the writ or creating an obligation to create an environmental impact report or mitigated negative declaration for routine maintenance at the site.
Finally, Northfriends argues that a "CEQA document for a management plan for the [SJWA] does not meet the requirements for complying with [defendants'] obligations under CEQA for a project which was constructed with no CEQA review." It is not clear from what "management plan" Northfriends is referring to. It is not anything in our record. According to defendants, Northfriends is referring to "a document that does not yet exist." Northfriends does not dispute this characterization in their reply brief. Clearly, we cannot offer any opinion as to whether a nonexistent document complies with CEQA.
In conclusion, our review of the record reveals that the trial court understood our disposition in Friends I, including footnote 13. As the court stated, Northfriends had the opportunity following remand to broaden the peremptory writ to include activity beyond the scope of the project, but "declined the invitation." The scope of the writ was thus limited to the project. Unfortunately, defendants created some unnecessary confusion by incorporating into the return to the writ the notices of exemption regarding routine maintenance of the site. Northfriends seized upon this mistake in an attempt to use the notices as a way to expand the scope of the writ itself. The effort fails. Regardless of the extraneous notices, which were properly struck, the writ is plainly limited to the project itself. There is nothing in the record to suggest that defendants have failed to comply with the writ. Accordingly, as the trial court stated, "[t]his case is over."
IV. DISPOSITION
The order appealed from is affirmed. Each party shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
Miller
J.