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CA6DH038550-02
[4FDB454A-1 CAE-4C72-9C76-76D5 DD4D2 B7F] {130226}[309-121108:083736]{110712}

APPEL.LANT'S BRIEF

No. H038550 Exempt from filing fees Gov. Code 6103

IN THE COURT OF APPEAL SIXTH OF THE APPELLATE STATE OF CALIFORNIA DISTRICT

MARINA

COAST

WATER

DISTRICT,

RespondentAppellant,
V.

AG LAND

TRUST,

PetitionerRespondent.

On Appeal Monterey County Honorable

from Lydia

the Judgment Court, M. Villarreal,

of the No. M 105019 Judge

Superior

OPENING MARINA

BRIEF COAST

OF APPELLANT WATER DISTRICT

MARK RUTH 33 New

FOGELMAN STONER

(50510) (276394) L,LP 290

WHITMAN REMY 455 Capitol Sacramento, Telephone:

F. MANLEY MANLEY, Suite 210 Mall, (916)

(I 30972) LLP

MUZZIN

MOOSE

FRIEDMAN San Francisco, Telephone:

& SPRINGWATER St., Suite 94105 834-3800 CA (415)

Montgomery

CA 95814 443-2745

LLOYD NOLAND, HOSS,

W. LOWREY, HAMERLY, P.C. Box 2510 California (831)

JR. (51936) ETIENNE & Attorneys for Appellant MARINA COAST WATER DI STRICT

Post Office Salinas, Telephone:

93902-2510 424-1414

TO BE FILED

IN THE COURT

OF APPEAL __._ ,, A P p-_o.o8

COURT

OF

APPEAL,I

Six|l)

IAPPELLATE

DISTRICT,

DIVISION

AT) ORNEY

OR PARTY

WITHOUT

ATTORNEY

(Name,

Stale IJat n_mlOC{, and a(Jdres_}:

Mark Fogelman / SBN 50510 -- Friedman & Springwater LLP 33 New Montgomery Streel, suite 290 S,'m Francisco. CA 94105 TELEP,O"ENO: 415-834-3800 E_'_ ,'OORESS _Op_o,,0: fogelman@ m ATTORNEY FOR (Name]: Marina Coast APPEI.LANT/PETITIONER: Marina

FOR

COURT

USE ONLY

F_NO rOp,_,=,0415-834-1044

"_-_,

"'q!;:._,,1. ,'._'.',_!;_l_tL-!. t _,,_,i::_.

fried manspring.com Water District Coast Water District

'z
tqlICI,I_EL,,, YE_L'(. Clo_k D(.." IJ'(g P

RESPONDENTIREAL

PARTY

IN

INTEREST:

Ag

Land

Trust OR PERSONS CERTIFICATE this form.

CERTIFICATE (Check one): Notice: Please [_]

OF INTERESTED

ENTITIES r--]

INITIAL CERTIFICATE

SUPPLEMENTAL completing

read rules

8.208 and 8.488 before

You may use this form

for the initial

certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed. 1. This form is being submitted on behalf of the following party (name): Marina 2. a. [_ b. [_ Coast Water District

There are no interested entities or persons that must be listed in this certificate

under rule 8.208.

Interested entities or persons required to be listed under rule 8.208 are as follows:
!

I (t) California (2) (3) (4l (5) Surfrider Public

Full entity or person name of interested American Foundation Trust Alliance Ranch Grantor parties] Water Co.

_ [ Project Settling Settling [continued participant, party party and fully

Nature of interest (Explain): recipient of CPUC approval

[Armstrong

set forth

on

Attachment

2]

Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other Interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Dale:

September

21, 2012

Mark

Fogelman
(TYPE OR PRINT NAME) (SIGNAl URE OF PARIY OR ATTORNEY) Page 1 of 1

Fo,mApp,oved forOp_onalUSe
Judicial Counc_ of Califocnia 1, 2009} APP-OOg [Rev. January

CERTIFICATE

OF INTERESTED

ENTITLES

OR PERSONS

cem, RumesolCourt._ulesS.208,8,488 www.cou_intocagov

Allachrnen! CERTIFICATE OF INTERESTED

2 to ENI'ITIES OR PERSONS

Full name interested 4.

of entity or person Johnson, Trust .

Nature

of interest

The Lois and Clyde Jr., 1989 Irrevocable

Grantor Grant

under Deed,

the June 26, 2010 recorded June 30, 2010 Recorder County

with the Monterey

as document 2010035894, pursuant to a property transfer approved by Marina Coast Water District in Resolution 2010-18, ordered aside on February 29, 2012 5. The Sandra Armstrong Murray Revocable Trust U/A dated March 6. 1, 1989 Limited
Same. Same.

set

J & J Armstrong Partnership

The Irvine

Armstrong,

Jr., and

Same.

Carol V. Armstrong Revocable Trust Under Trust Agreement dated December 12, 1995 8. Jay M. Armstrong Limited 9. The 2004 Partnership Susanne Irvine Trust Same. Family Same.

Armstrong Revocable U/A dtd 5/28/04

10. Clyde W. Johnson, ]II and Laurena Johnson Family Limited 11. The Trust Mary Janet Partnership for the Benefit Armstrong of Weber

Same.

Same.

12. The 2003 Susanne Armstrong Irrevocable Trust dated November 5, 2003

Same.

TABLE

OFCONTENTS Pa_gg_

I. STATEMENT A. B. C. D. E. F. G.

OF THE

CASE

AND

STATEMENT

OF FACTS

.......................

1 1 9 19 19 21 22

Commission The Action Appellant's Project Nature Relief

and Agency Below

Proceedings

......................................................

...................................................................................... .......................................................................

Writ Petitions

Cessation

..................................................................................... ................................................................................ Court .................................................................... Determinations Appealed; Finality and

of the Action Sought in Trial

Judgment

and Intermediate OF REVIEW of Law

Appealability II. STANDARD A. B. C. D.

.......................................................................................... ............................................................................... Are Reviewed De Novo ....................................

22 22 22 23 24 25 26 Suit 26 26 27

Determinations CEQA Contents Joinder Review

......................................................................................... Record Pursuant to Statute .................................

of the CEQA in CEQA Cases

...........................................................................

III. ARGUMENT A. The

................................................................................................... Superior Court Final was Without Jurisdiction Over ALT's

Challenging 1. 2. Summary

Decisions

of the Commission

..................................

of argument

...........................................................................

Public Utilities Code section 1759(a) preempts ALT's suit entirely, and the case should be dismissed ........................................................... Each of MCWD's Remaining Affirmative Defenses Is Valid and

B.

Case-Dispositive 1. 2. 3. 4. 5. C. 1. 2. D. ALT's Mootness Lack ALT ALT The The The CEQA

.................................................................................... claim is precluded invalidation prevents .......................................................... of Resolution 2010-18 ........................ 2010-20 .............

31 31 33 34 35 38 ............ 40 40 45 52 52

prevents

of ripeness failed failed

invalidation

of Resolution remedies

to exhaust to join Court

its administrative parties

................................

indispensible Erred was

................................................ on its Merits

Superior

in Granting agency

the Petition for the RDP

Commission Commission's

the lead

..............................

EIR

was adequate

................................................... to Augment

The Superior the Record

Court Erred in Denying MCWD's Motion .............................................................................................. ................................................................................................

IV. CONCLUSION

TABLE

OF AUTHORITIES Paze

Cases A Local Abelleira Ballona Beresford Bowman and Regional v. District Wetlands Monitor Court Land v. City of Los Angeles (1941) 27, 28 32 26 36, 37 35 (2011 ) (1989) (1993) 41, 44

12 Cal.App.4th 17 Cal.2d

1773 ..................................................................................... of Appeal

280 ................................................................................................ Trust v. City of Los Angeles 455 ........................................................................................... Association (2004) v. City of San Mateo 1180 .......................................................................................... 572 ..................................................................................... Peace Officers Assn. v. State Personnel Bd. (1995) .................................................................................................. Plant Society v. City of Santa Cruz (2009)

201 Cal.App.4th 207 Cal.App.3d 122 Cal.App.4th Calif. Correctional 10 Cal.4th 1133 California California Cedar Cherry Citizens (2011) Citizens (1979) Fair, Valley for Native

Neighborhood v. City of Berkeley

177 CalApp.4th 133 Cal.App.4th 194 Cal.App.4th 190 Cal.App.4th

957 ............................................................................................ v. City of Santa Clara (2011 Clarita ) (2005) 1219 ............................................................................. 1150 ..................... '.............................................................. v. City of Beaumont DeveL Com'rs (2010)

24 45, 46, 49 34, 35 46, 48, 50 36 Beach 42, 43 29, 30

Oak Foundation

L.P. v. City of Santa Pass Acres

and Neighbors Equitable

316 ............................................................................... Environmental 515 ............................................................................... v. Bd. of Harbor Refining of the Port Co. (2010) University (2006) of Long

Responsible

v. City of San Diego

196 Cal.App.4th Task Force 23 Cal.3d

on Sohio v. Tesoro

812 .................................................................................... and Marketing of Calif Resources State 840 ..................................................................................... of Trustees Water

City of Los Angeles 188 Cal.App.4th City of Marina 39 Cal.4th 2 Cal.App.4th

v. Board

341 .............................................................................................. v. State Control Bd. (1992) 960 .........................................................................................

23, 24 44, 45 28 (2011) 33 25 36

City of Sacramento

Clary v. Hoagland (1856) 6 Cal. 685 ............................................................................................................ Coalition for a Sustainable lrrigation Lobby Against Future Dist. in Yucaipa Court v. Public v. City of Yucaipa (2012) Utilities Com.

198 Cal.App.4th Consolidated Consumers (1979 205 Cal.App.4th

939 ........................................................................................... v. Superior 697 ........................................................................................... Monopolies

25 Cal. 3d 891 .........................................................................................

County County

of lmperial of Orange

v. Superior v. Superior for

Court Court

(2007) 25, 26, 39 24, 52 Cucamonga 21 33 (2004) 32, 33 Dist. (1994) 40, 43 (2002) 48, 50, 51 23, 45, 49 28 29 30 19 (1988) 24, 48, 50 21 36 (2012) 46, 48 32 34 (2003) Expansion v. City of Rancho v. City Council

152 Cal.App.4th 113 Cal.App.4th Cucamongans (2000) Downtown Federation Friends Friends Gilroy United Palo Alto of Hillside of Cuyamaca of the Santa Citizens for

13 ................................................................................. 1......................................................................................... Reasonable 473 ................................................................................. Fair A'ssessment Associations Cuyamaca Lake (1986)

82 Cal.App.4th

Com. for

180 Cal.App.3d 126 Cal.App.4th 28 Cal.App.4th 95 Cal.App.4th

384 ............................................................................................ and Canyon Valley Clara v. Lake River v. City of Los Angeles Ree. and Park Agency (2006) 1180 ................................................................................... 419 ....................................................................................... v. Castaie Planning Water 1373 ............................................................................... Responsible v. City of Gilroy

140 Cal.App.4th 911 ............................................................................... Harris v. Seidell (1934) 1 Cal.App.2d 410 ................................................................................................ Hartwell Corp. v. Superior Court (2004) 27 Cai.4th 256 .................................................................................................... Koponen v. Pacific Gas & Electric 345 ....................... Co. (2008) '.................................................................... 165 Cal.App.4th

Kowis v. Howard (1992) 3 Cal.4th 888 ...................................................................................................... Laurel Malatka McAllister Mount Heights v. Helm Improvement (2010) 1074 ......................................................................................... of Monterey Ecology (2007) Center v. County 1088] of Siskiyou 253 ........................................................................................... __ [2012 CaI.App.LEXIS ......................................... Assn. v. Regents of Univ. of Calif 47 Cal.3d 376 ..........................................................................................

188 Cal.App.4th v. County 147 Cal.App.4th Shasta __ Cal.App.4th

Bioregional

Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888 .................................................................................................... Pacific Legal Found. v. California Coastal Com. (1982) 33 Cal.3d 158 ...................................................................................................... Pellandini v. Pacific Limestone Products, Inc. (1966)

245 Cal.App.2d

774 ......................................................................................

30, 36 30 32

People ex tel Orloff v. Pacific Bell (2003) 31 Cal.4th 1132 .................................................................................................. People v. Western Air Lines (1954) 42 Cal.2d 621 ......................................................................................................

iii

Planning Planning Pratt Protect

& Conservation & Conservation Trucking, Water

League League Inc. (1964)

v. Castaic v. Dept.

Lake Water

Water Resources

Agency

(2009) 32 40, 43, 51 29, 30 25 23 23, 29, 40 33 30 (2001) 23, 46, 48 34, 35 23 36 (2011) 32 (2010) 23 30 28 Cordova 23, 46, 50 29 v. County of 46 33

180 Cal.App.4th 83 Cal.App.4th v. Coast Our 228 Cal.App.2d 110 Cal.App.4th

210 ........................................................................................... (2000) 892 ................................................................................. 139 ...................................................................................... v. County of Merced (2003) 362 ...........................................................................................

Regents of University of California v. Superior Court (1999) 20 Cal.4th 509 .................................................................................................... San Diego 13 Cal.4th Santa Sarale Save Monica v. Pacific Our Peninsula Gas & Electric Baykeeper Company v. Superior (2011 Court ) (1996) 893 ........................................................................................ v. City of Malibu Co. (2010) v. Monterey County Bd. of Supervisors 1538 ..................... Gas & Electric Committee :...................................................................

193 Cal.App.4th 189 Cal.App.4th 87 CaLApp.4th

225 ........................................................................................... 99 ...................................................................................

Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 .............................................................................................. Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201 .................................................................................................... Sierra Silverado Sunnyvale Thrifty-Tel, Club v. City of Orange Recreation (2008) and Parks Assn. (1996) Dist. v. County of Orange City Council 163 Cal.App.4th Modjeska 197 Cal.App.4th 190 Cal.App.4th Inc. 46 Cal.App.4th 523 ........................................................................................... 282 ........................................................................................... v. City of Sunnyvale 1351 ......................................................................................... v. Bezenek 1559 ...........................................................................................

West Neighborhood

Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 .................................................................................................... Vineyard (2007) Area Citizens for Responsible Growth, Inc. v. City of Rancho

40 Cal.4th

412 .............................................................................

Waters v. Pacific Telephone (1974) 12 Cal.3d 1 .......................................................................................................... Western Placer Wilson Placer (2006) 890 ........................................................................................... v. City Council of Redwood City (2011) 1559 ......................................................................................... & Wilson Citizens for an Agricultural and Rural Environment

144 Cal.App.4th 191 Cal.App.4th

iv

Statutes A.B. Code Code Code Code Code Code Evid. Evid. Evid. Pub. 1182 (Stats. 1998, 389, 389, 904.1, ch. 797) subd. subd. subd. .................................................................... 1,2, 42 25 26, 39 51 22 22 21 45 37 37 50, 51 25, 38, 39 40, 43 40, 42 37 24 24 45, 49 47 44 39 25 15, 52 25, 38, 39 21, 23, 44 13, 36, 37 35 36, 37 40 29, 32, 41, 44 36, 37 13, 36, 37 passim

Civ. Proe. Civ. Proc. Civ. Proc. Civ. Proc. Civ. Proc. Civ. Proc. Code Code Code 664 802 803

(a) ............................................................................. (b) ....................................................................... (a)(1).: ....................................................................

632 .............................................................................................. 906 .............................................................................................. 1085 ............................................................................................ ..................................................................................................... ..................................................................................................... ..................................................................................................... Code Code Code Code Code Code Code Code Code Code Code Code Code Code Code Code Code Code 701 1709 1731, 1756, 1759, 21005, 21065, 21067 21069 21080, 21080, 21080, 21100 21100, 21166 21167.3 21167.6, 21167.6, 21167.6.5 21168.5 21168.6 21177 21177, subd. subd. (c) ........................................................... (b) ............... - ..... :...............................

Resources

Pub. Resources Pub. Resources Pub. Resources Pub. Resources Pub. Resources Pub. Resources Pub. Resources Pub. Resources Pub. Resources Pub. Pub. Pub. Pub. Pub. Pub. Pub. Pub. Pub. Pub. Pub. Pub. Pub. Resources Resources Resources Resources Resources Resources Resources Resources Util. Util. Util. Util. Util. Code Code Code Code Code

........................................................................... ........................................................................... subd. subd. subd. subd. ............ subd. subd. (e) ................................................................. (e)(1) (e)(2) ............................................................ ............................................................

........................................................................... (b) ................................................................. .'.................................................................... (e) .............................................................. (e)(5) ...................................................

..............................................................................

............................................................... .................................................................. ..................................................................

.................................................................................. subd. (a) ...........................................................

.............................................................................................. .......................................................................... subd. subd. subd. (b) ...................................................................... (f) ................................................................. (a) .....................................................................

Administrative Pub. Pub. Pub. Pub. Util. Util. Util. Util. Com. Com. Com. Com.

Decisions D.03-09-022 D.09-12-017 D.10-12-016 D.12-07-008 ....................................................................... .......................................................................... ............................................................... ................................................................................. 1, 27, 41 passim 13, 37, 41, 44 20 1, 47 4

SWRCB SWRCB

WR 95-10

............................................................................................ ..........................................................................................

WR 2009-0060

Regulations Cal. CodeRegs.,tit. 14, 15051................................................................. 42, 43 40, Cal. CodeRegs.,tit. 14, 15052............................................................................. 41 Cal. Code Regs.,tit. 14, 15384(a)............................................................ 48, 50 24,

vi

GLOSSARY OF ABBREVIATED TERMS & ACRONYMS

A

Public

Utilities

Commission

Application

AA AFY Agency Act

Appellant's acre-feet Monterey (Water

Appendix per year County Water Resources et. seq.) Agency Act

Code Trust

App.,

52-1,

ALT Cal-Am CDO CEQA Commission CPCN D. DRA EIR MCWD MCWRA MRWPCA NOD RDP ROP RT RTA SVGB SWRCB

Ag Land California'

American

Water Order

Company WR 2009-0060) Act

Cease-and-Desist California Public

(SWRCB Quality

Environmental Commission

Utilities

Certificate Public

of Public

Convenience

and Necessity

Utilities

Commission Commission Impact Water Report District

Decision Division of Ratepayer

Public Utilities Advocates Environmental Marina Monterey Monterey CEQA Regional Coast

County Regional Notice

Water Water

Resources Pollution

Agency Control Agency

of Determination Project of Proceedings

Desalination Record Transcript Transcript, Valley

Administrative Reporter's Reporter's Salinas State

as Augmented Basin Board

Groundwater Resources Control

Water

vii

Io

STATEMENT This County Act appeal water

OF THE by Marina agency,

CASE Coast involves

AND Water

STATEMENT District

OF FACTS a Monterey Quality Impact

("MCWD"), Environmental Environmental Utilities

public

a California and related Public

("CEQA") ("EIR")

challenge approved seeking Peninsula.

to a project by the

Report

California a new and

Commission supply 17, to

("Commission") the Monterey entered

to bring

long-needed from the Court

water April against

MCWD

appeals County

2012

judgment and

by the Monterey Trust

Superior

MCWD

in favor A. In

of Ag Land Commission 1995, that the

("ALT"). Proceedings Control Company water the Board ("SWRCB") the

and Agency Water

State

Resources Water that water illegal

determined

California-American water utility

("Cal-Am"), to the

Commission-regulated Peninsula, SWRCB the Carmel In 1998, with was illegally

serves from

Monterey l The

pumping

Carmel was

River.

determined River

that Cal-Am's environment,

pumping habitat

severely

harming species. 2

including

for endangered charged

in A.B. that

1182,

the Caliibrnia

Legislature sound

file Commission be secured Monterey

ensuring

"an environmentally in a responsible

water for

source.., Cal-Am's

as quickly Peninsula On Commission

as possible service area. 3

manner"

September dismissed

4,

2003,

in

its

Decision

("D.')

03-09-022,

the

Cal-Am's

proposal

to construct

another

dam on the by the Cal.

i In the Matter St. Water Res.

of Complaints Water Control Bd.) ("ROP") 1182

Against Company, ("Order

Diversion 1995 WR

and Use 95-10"); see

of Water 9 (1995

California-American Record 2 Order ("AA") of Proceedings WR95-10 Bill 1472-1473, No.

Cal. ENV vol. 4.

LEXIS

administrative vol. 4.

2051-2052, seeROP1954, 1998,

at *36-39;

vol. 4; 1993-1994, ch. 2051, 797), Appellant's vol. 4.

a Assembly

(Stats.

Appendix

vol. 6; see ROP1942,

Carmel CEQA

River lead

and agency water

determined for Cal-Am's supply directive project

that

it -

the

Commission application a desalination In 2004,

would

be the a

forthcoming involving 1182. 5 Water issue

to implement plant, 4 following ("A.") Cal-Am Convenience a desalination 6 MCWD before

replacement the

Legislature's

in A.IJ. "Coastal

in Application proceeding, of Public

04-09-019, requested and

Cal-Am's that the

Project"

Commission

a Certificate Cal-Am

Necessity

("CPCN") the

to permit necessary were

to implement water the supply.

project other

to provide local 7 the fall

replacement parties to

and the

agencies

proceedings

Commission. In Preparation Beginning ("DRA") aimed DRA's at

of

2006,

the

Commission EIR

published for the

Notice project. Advocates in a process 9 J0

of 8

concerning in 2007, facilitated developing the

its forthcoming Commission's regional

desalination

Division stakeholder regional

of Ratepayer participation project

broad

a public-private participated the

alternative. process. its draft

At

invitation, On January

MCWD

in that stakeholder released three

30, 2009, ''11 of those

Commission evaluated

EIR Water

for the Project

"Coastal alternatives) regional

Water 2

Project. One

The EIR

Coastal

alternatives Desalination

was Project

a proposed ("RDP").

public-private j3 Conditioned

project,

the Regional

4 ROP7666, 5 AA1473, 7See,

vol. vol 6.

14. vol. 4. 118, vol. vol. 4. vol. 6. vol. 4; 5096, 1994-1996, vol. 10. vol. 10. 1; 1941-1944, vol. 13. vol. 4.

6 ROP 1941-1942, e.g., ROP116, 8 ROP2049, Jo Ibid;

vol. 4; 6751-6767,

9 ROP2057-2059, tl ROP5078, 12 ROPI955, vol. 1994,

ROP3488-3490, 10.

_3 ROP1957-1959,

vot. 4; 5097,

on ultimate Commissionapproval, Cal-Am would implement the

RDP County comments comments of county alternatives, of those together Water were with two public agency partners, ("MCWRA"). drat_ issues EIR. z5 MCWD _4 ALT and Over

proposed

the Monterey one thousand written violation analysis of

Resources submitted EIR,

Agency to the raising

submitted rights, and

on the draft ordinances,

of groundwater and property, facts or expert in

impacts

to groundwater additional

but it did not provide issues] 6 The

opinion to

on any ALT's

Commission

responded

writing

comments

in its final EIR. 17 2009 and early 2010, Cal-Am, MCWRA, MCWD and

Throughout other toward parties

to Commission which

proceeding might lead as

A.04-09-01918 to the Commission's the and most the

continued approval

to work of the and served

a settlement RDP

public-private environmentally the public In ("CDO"), Cal-Am's required

alternative

economical, alternative that

feasible best

protective 19 2009, mandated of

alternative

interest. October, which

the

SWRCB

issued

cease-and-desist cut-backs the

order in

specific, CarMel

incrementally-increasing River water, with

withdrawals to cease entirely

withdrawals

by December

31, 2016. 20

_4ROP162_163, 15 ROP3979, vol. 16 ROP4164-4165, 17 ROP4777-4779, ig The parties Monterey Public Trust

vol. 8.

1; 1994-1995, 8; 4777-4779, 9. settlement Pollution

vol. 4; 2787, vol. 9. were: Foundation vol.

vol.

5.

vol. vol.

to the final Water Alliance, Parties"). vol. 1.

Cal-Am, and

MCWD, Citizens vol. 5.) and ENV

MCWRA,

the the Water

Regional

Control

Agency

("MRWPCA"), for Public

Surfrider (ROP116,

(the "Settling 19 ROP119-120, 2o Ibid.; by the

1; AAI098,

see In the Matter California-American

of the Unauthorized Water Company,

Diversion 2009 Cal.

Use

of Water 154

LEXIS

On October as above on the noted, draft brief

30, 2009, included

the Commission

released responses

its final to ALT's

EIR

which,

the Commission's ALT 500

comanents

EIR. 21 along

Thereafter, over

submitted of the dated

a 21-page

single-spaced to the EIR. 22 raised of the

letter

with

pages of

supporting Commission's December and water the

materials final 16, 2009 adequacy rights, impacts

Colmnission, ALT's issues final letter of the E1R on the

opposing brief identity the to the

certification Commission proper

of the

lead

agency plans,

subjects

of contingency Act, 23 brine 24 ALT's meeting EIR, outfall, counsel

continuous and before state the

pumping,

Agency policy. at its public of in that the

property then

antidegradation Commission certification Nevertheless, determination as adequate, Commission In alternative, project's

appeared

on December and the referring Commission lead agency

17, 2009, to ALT's

arguing letter its

against brief. 2s earlier EIR the

final

D.09-12-017, it was

reaffirmed and certified

the CEQA

its final however,

rejecting

all of ALT's

arguments. project. out its

26 At the time, 2_ role and in the operate

did not approve order for MCWD have with

a specific to carry

proposed a portion

RDP of the other

it would facilities,

to construct,

own

Cal-Am

and MCWRA

owning

and operating

(2009 Cal. St. Water 21 ROP1965, vol. 4. 22 ROP1087-1105, 23 The prohibits Monterey

Res.

Control

Bd.)

("Order vols.

WR 2009-0060") 7-9. Agency Act ("Agency Act") Basin groundwater

vol. 2; AA161]-2140, County Water of Salinas Resources Valley

the exportation

Groundwater

outside the basin. 24 ROP1087-1105, 2s AA2141-2144, 26 ROP1941-1964, 27 Ibid.

(Water Code App., vol. 2; AA1611-22, vol. 9. vo]. 4.

{}{}52-1, et. seq.) vol. 7.

portions] $106 RDP

The

Cal-Am-owned facilities

facilities without

would which

include product

approximately water 29 None from the

million could

in pipeline not

be delivered (including

to the those

Monterey

Peninsula. and

of the could and to entire able to

project's

facilities

owned approval

by MCWD

MCWRA) participation commitment

be constructed Cal-Am's provide project. participate MCWD's at a public MCWD a 3

without binding continuous To ensure

Commission

of Cal-Am's contractual

Commission-approved revenue the stream

sufficient that MCWD

to

finance would

the be

poss!bility RDP, subject

in the proposed Board meeting of Directors

to ultimate and adopted

Commission Resolution 2010-18 that

approval, 2010-18 authorized be used 32 of

considered

on March an option

16, 2010. 31 Resolution to purchase of a desalination acquisition Family, under real property plant

to exercise

could

for the possible Resolution property have

development approved

or for other

purposes. acres

2010-18 from

of approximately an option that

224 otherwise

the Armstrong 33 16, 2010, 600 pages adoption constitute not authorize

would

expired. On

March nearly

ALT

submitted

a 30-page

single-spaced delivery, asserted even property

letter arguing that the the no

brief against

and

of exhibits

to MCWD 2010-18.

by hand 34 ALT RDP, of the

MCWD's would did

of Resolution approval any

resolution resolution

of the proposed particular use

though and

28 ROP119, 3 ROP119-122,

vol.

1; 2787-2790, vol. 4; 116, vol. 1. vol. 4.

vol. 5. 124, vol. 1.

29 ROP1957-1959, 31 ROP1726-1733, 32 ROP1732, 33 ROP1727, submitted vol. 4. vol. 4.

34 ROP1106-1725, previously

vol.

3.

The

exhibits

were

substantially

similar vols. 7-9.

to those

to the Commission.

AA 1633-2140,

agreementor decision committing MCWD to a desalination project had then been made. 5 ALT's submissionagain raised issuesof lead agency 3 identity and EIR adequacyon the subjectsof contingency, water rights, continuous pumping, Agency Act' brine
antidegradation 2010 public policy. meeting, MCWD's the Board 36 ALT's and made counsel these outfall, property at MCWD's against impacts March Resolution meeting only the the and 16,

appeared same

arguments on the March time use

2010-18.37 record potential would MCWD that

counsel

clearly

stated was

16, 2010

of Directors of real property, 2010-18

at that not the

considering to which

acquisition

property

be put. 38 Resolution Directors, Because the

was

approved present. 39

unanimously

by the four

out of five, that were MCWD Board

reviewed final

much EIR, decision

environmental before voting

material, to adopt

including Resolution from

the

Commission's

certified

2010-18,

and because Family was

MCWD's a final and file

to acquire

the property directed

the Armstrong Manager concerning next

one,

Resolution Notice

2010-18

the General ("NOD") filed the

to prepare approval The

a CEQA

of Determination 4 The NOD that acquisition plant, the the was

of the property face of the NOD

acquisition. indicates "the

day. 41 by

precise of 224-

"project" acres on (+/-) page

approved of land," two that

Resolution

2010-18

was

not the construction any future projects

of a desalination proposed at

and it states "are

property

35 ROP1106-1108, 36 ROP1106-1132, 37 ROP1921-1923, 38ROP1937.1938, 39 ROP1733, 40 ROPI732 vol. 4.

vol. vol. vol. vol.

3. 3. 4. 4. 5, vol. 4. 2.

resolving vol.

41ROP1083-1085,

conditioned upon CEQA compliance.'42 In other words, Resolution 2010' 18 did not changethe use of the property, comporting with MCWD's filed statement that the property transfer would environmentalimpact. 3 4
On April seeking (1) to vacate not 5, 2010, ALT filed its CEQA on the Petition basis in the superior of its contentions CEQA EIR was lead not agency adequate. which court, that for 44 it

have no significant

Resolution the

2010-18,

MCWD, of the

Commission, and (2) the

should

be the

review ALT's later

RDP;

Commission's of action

suit also included dismissed. Contrary 45

two causes

for declaratory

relief

to the plain and despite project approval project three

language the thetl of the from fact

of Resolution that no

2010-18

and the March to implement that Resolution that the a

17, 2010 regional 2010-18 RDP than was one

NOD,

agreement alleged also

desalination was a final

existed,

ALT

RDP. 46 ALT Coastal under

contended Project,

a different of the

Cal-Am's alternatives

Water

47 rather in the

project Water a

consideration that MCWD regard

Commission's and would

Coastal now final build

Project desalination

proceeding, project

4s and

could to the

without

Commission's language

decision

on Cal-Am's that

application, was

49 in spite simply

of the plain making a

of Resolution

2010-18

MCWD

thereby

42 ROP1083-1084, 43 ROP1084, 44 AA9-13, 45 AA13-17, 46 AA10, 47 AA4-6, 49 AA6, vol. vol. 9, vol.

vol. 2. See also ROP1732,

sixth

resolving

, vol. 4.

1, vol. 2. 16-17, vol. 1. vol. 1. t. vol. 4; 2787-2791, 1. vol. 5. 1; 5484, vol. 22.

48 ROP1994-1996,

decision to acquire land.5 ALT did not attempt to stay or enjoin the property transactionapprovedin Resolution 2010-18,and the property was duly conveyedandthe conveyance recordedin June,2010.51 By early April of 2010,the partiesto CommissionproceedingA.0409-019 finally completedthe negotiation of detailedsettlementagreements that would createthe RDP, if the agreements were ultimately approvedby the Commission:2 At a public meeting on April 5, 2010, MCWD's Board of Directors considered and adopted Resolution 2010-20, which approved MCWD's entry into the RDP SettlementAgreementand Water PurchaseAgreement among Cal-Am, MCWRA and MCWD and conditionally approved MCWD's participation in the RDP - expressly conditioned upon final approval by the Commission as lead agency. 3 Resolution 2010-20 5 included MCWD's CEQA findings as a responsibleagency,its mitigation and monitoring statement,andits statementof overriding considerationsfor the proposedRDP.54 Resolution2010-20containedno resolving paragraph instructing that a NOD should be filed becauseMCWD's approvalwould not be final and unconditional' unless and until the settlement were approved by the Commission. 5 If the Commission did not approve the 5 settlement,the RDP agreements andResolution2010-20would be a nullity. On April 5, 2010, ALT
pages of materials to MCWD submitted by hand another letter brief arguing and over 400 the

delivery,

against

50 ROP1732, 51 AA1474-1501, 52 ROP116-264 53 ROP6

vol. 4. vol. 6. Agreement"), on final 1. approval vol. 1. vol. 1. by the CPUC"), ("Settlement

4 ("contingent

54 See ROP6 1-3, vol. s5 See ROP 1-6, vol. 1.

adoptionof Resolution 2010-20,andassertingthat the Commissionwas not the proper leadagencyfor the RDP andthat the Commission'sEIR was not adequatein its discussionof sevenseparatesubjects: contingency,water rights, continuous pumping, Agency Act, brine
and antidegradation policy. 56 These were the 2009, submission opinion outfall, property impacts ALT had

same

arguments

presented had

to the Commission in D.09-12-017. information any of these 58

in December, 57 ALT's

and that

the Commission presented

rejected new

to MCWD

neither

nor any expert seven claims

for MCWD's previously

consideration rejected April by

concerning the

of inadequacy appeared

Commission. meeting, Board

ALT's the

counsel same

at MCWD's against Resolution

5, 2010 2010-20. 59 of

public The

raising

arguments the Upon meeting

of Directors ALT's

recessed 6

for the the

express meeting,

purpose Resolution

considering 2010-20 five, was

argument.

resuming four

approved present. on

unanimously 61 April 6, 2010,

by the

MCWD

Directors,

out of

that were Thereafter,

the

Settling Water

Parties Project

submitted proceeding,

their A.04-

proposed 09-019,

settlement

of Cal-Am's

Coastal 62

to the Commission B. On The April below, Action 6, 2010,

for apl_roval. Below ALT to vacate filed

its

First MCWD

Amended

Petition

and

Complaint

seeking

the two

Resolutions,

2010-18

56 ROP595-601, 57 ROP1087-1105,

vol. 2. vol. 2; 1963-1964, vol. 2. vol. 1. 1. 591-594, 1. 594, vol. vol. 1. vol. 4.

58 See ROP602-1021, 59 ROP553-554, 6o ROP593, 6J ROP6-7, 62 ROP116-264, vol. 554,

and 2010-20, 3again basedsolely on its contentionsthat (1) MCWD, not 6 the Commission,should be the CEQA lead agencyfor review of the RDP; and (2) the Comlnission's E1Rwas not adequate. Contrary to the plain 64 language of Resolution 2010-20'that MCWD's approval could not and would not become final unless the Commission as lead agency approved the SettlementAgreement, the Water PurchaseAgreement and the RDP without modification,65ALT
project approval ALT Am's again of the RDP contended Water alleged by MCWD. that
66

Resolution

2010-20

was

a final

that the RDP 67 rather in the could

was than

a different one of

project the three Water

from

Cal-

Coastal being

Project,

project Project

alternatives proceeding, project

considered that MCWD for the

Commission's and would

Coastal now build

68 and

a desalination on Cal-Am's and the

without

regard

Commission's language

final

decision

application, project partnership Commission' Also conditionally the

69 in spite

of the plain that the

of Resolution three-way

2010-20

agreements would s prior on

RDP's

proposed

public-private and the

not

go forward

without

Cal-Am's

participation

approval.7 6, 2010, MCWRA's conditioned not file Board of Supervisors approval MCWRA by

April

approved 7_

the RDP, However,

likewise ALT did

on final suit against

Commission.

63 AA21-41, 6,1AA29, 65 ROP2-3, 66 AA33, 67 AA24-26, 69 AA26, 70 ROP2-3, 7_ AA3928, vol.

vol.

1. 33, vol. 1. 1.

30, 31-32, 6 4, vol. vol. 1. vol. 1. 1.

68 ROP1994-1996,

vol. 4, 2787-2791, vol. 1.

vol.

5.

6 4, 209 25.3, vol. 16.

10

challengingthis decision. Meanwhile, in June 20t0, the Commissionconducteda week-long evidentiary hearing on the proposedproject and the settlement,according the parties full due processrights, including the right to presentevidence and cross-examinewitnesses, The parties submittedbriefs basedon the v2 detailed evidencepresented. The Assigned Administrative Law Judge 73 thereafterissueda ProposedDecision,
thereon. whether supply project,
TM

and

the parties

submitted final two

comments as to water or no

Then RDP

the

parties

awaited or one evaluated

the Commission's of the in the other

decision

the project would During

settlement,

replacement EIR,

alternatives be approved the summer

Commission's

by the Commission. of update_t 2010, its brine draft CH2MHill, outfall brine an analysis. outfall a higher environmental 7s The analysis. outfall update 76 The

consultant followed results than

for MRWPCA, CH2MHilI's of the Final

March CH2MHill

4, 2010 Report 77 filed CEQA MCWD lack

indicated

capacity

the Draft On July

CH2MHill 27, filed 2010,

Report. ALT

the Brief timely

CEQA

record

with

the

superior

Court.

TM

ALT

its Opening 13, 2010,

on August demurred matter

27, 2010. 79 to the First jurisdiction Amended due to

On August Petition and

Complaint,

raising

of subject

72 AA1107,

vol.

5 (D.10-12-016,

p. 14 ("evidentiary

hearings

were

held

on

June 8-11, 2010")). 73 AA1512-1514, vol. 6. 74 AA1505-1509, 75 AA1460-1471, 76 ROP8216-8225, 77 Compare 78 AA5585, 79 AA344, vol. 22. vol. 2. vol. 6. vol. 6 (the "Final vol. 15 (the vol. CH2MHill CH2MHill vol. Report"). Report"). 6. "Draft

ROP8223,

15 with AA1469,

11

preemptionunder Public Utilities Code section 1759,subdivision (a), and other defenses. In its demurrer,MCWD counteredALT's claim that the 8 RDP was a different project than the Coastal Water Project and that the RDP could be carried out without Commissionapprovalwith a number of judicially noticeable rnaterials, including its own Resolutions and the Commission's final, conclusive decisions. 1 After the parties' briefing82 8 and two hearingson the matter,s3
demurrer, The Brief several petition, ten asserting superior days after before that unidentified court the required superior was the superior court overruled 84 Opposition and CEQA MCWD's

issues MCWD court required

of fact existed. to file denied to file

its CEQA

MCWD's its answer

demurrer to the

weeks

MCWD did so. 85

and MCWD While the

parties

continued extraordinary in this

to brief writ Court,

the

CEQA from the

petition, superior and

MCWD court's in the

unsuccessfully denial Supreme of its Court, Meanwhile, to the First

sought demurrer

relief Case.

No.

H036084,

Case No.

S 192285. 5, 2010, and MCWD timely in the filed superior due its Answer court. 86 to lack multiple Code

on November Petition

Amended raised

Complaint defense reverse,

MCWD's of subject final,

answer matter

the affirmative to "review,

of preemption correct, under

jurisdiction decisions

or annul" Utilities

conclusive

of the Commission

Public

80 AA313-334, 8J AA328-329, 1964, vol. 4).

vol. vol.

2. 2 citing vol. ROP6, 2. vol. 1 and D.09-12-017 (ROP1941-

82 AA304-343,420-477, 83 Reporter's 84 RT603:1-6, 85 AA494-536, 86 AA932-941,

Transcript ("RT") 601-607, vol. 11I; 901-920, vol. IV. vol. III, 920:13-19, vol. IV, AA538-539, vol. 3. vol. vol. 3. 4.

12

section 1759,subdivision
18, lack of ripeness remedies, indispensible

(a), 87 as well as and to

as mootness 2010-20, 88 Its

as to Resolution failure to Answer responded at trial. 9

2010exhaust added on

Resolution preclusion' under

administrative failure to join

Amended 89 MCWD

parties

CEQA.

the merits ALT single-spaced pages of

of the CEQA returned letter attachments. final lead had agency rejected

claims

in its brief

and its argument once again,

to the Commission brief 9_ approval dated In November its new

submitting with over

a 36-page a thousand against claims that the of the

19, 2010, brief, ALT on

argued the of ALT The same the

Commission's incorrect Commission in its First

of the

RDP, and

based

designation in December Petition evaluated written The

inadequacy 2009 and that 92

EIR

thereafter

raised

Amended consultant in a detailed 1, 2010. 93 ALT's

'and

Complaint. renewed directed

Commission's

environmental contentions December concluded On

ALT's response Commission's were

and previously-rejected to the Commission consultant on

environmental without the merit. 94

that

contentions 2, 2010,

entirely

December

in 'D.10-12-016,

Commission

approved

87 AA938-939, expressly courts water Util. cases Code of appeal such

vol.

4. that

Public review

Utilities Court,

Code

section in the in the

1759,

subdivision lies only Court. courts.

(a), in the In (Pub. CEQA

provides

of Commission never review (Pub. lies only Court.

decisions Supreme

or the subd.

Supreme (f).)

superior

as this one, review Simflarly,

1756,

of the Commission's Resources Code

decisions lies only in the Supreme 88 939, vol. 4. 89 AA5342, 9o AA517-535, 9_ AA2157-3373, to the Commission 92 AA2157-2192, 93 AA3983-3991, 9a AA3985, 3991, vol. 21. vol. 3; RT2452-2498, vols. 9-14 and MCWD). vol. 9. vol. vol. 16. 16.

21168.6.)

vol.

IX. materials previously submitted

(incorporating

13

the SettlementAgreement,the Water PurchaseAgreement and the RDP, and granted Cal-Am a CPCN to operatethe CaI-Am portion of the project facilities,95 relying on its certified final E1R and reaffirming its role as CEQA lead agency. 6 The Commission's final decisionincluded 90 pages 9 of CEQA findings.97 The Commission filed a NOD indicating its final project approval on December 6, 2010.98 With the contingency to MCWD's approvalremoved, 9MCWD flied its own NOD as a responsible 9 agency on December 10, 2010, and an amendedNOD on December 13, 2010) oo ALT neverdirectly challengedthe Commission's lead agencyand EIR decisions by seeking rehearing at the Commission or review in the SupremeCourt. MCWRA's final approval _as CEQA responsibleagency followed a on January 11, 2011,Il and it filed a NOD on January 13, 2011) o2 ALT filed suit against MCWRA on February 14, 2011, alleging that the Commission was not the proper lead agency for the RDP and that the Commission's EIR was inadequate)3
for nearly identical dismissing its First On June Amended 10, 2011, relief its on 'all The suit of against action) claims, against MCWRA 4 ALT Apart never prayed from again

causes relief

subsequently amended

declaratory Petition

and Complaint request,

MCWD. and the

at ALT's

MCWD

stipulated,

95 AA1296, 96 AA1286,

1298, 1287,

vol. 6. vol. 6. vol. 6. vol. 6.

97 AA1302-1391, 98 AA1456-1459, 99 See ROP3, lot 3929:1-5, vol. vol. too AA1454-1455, to2 AA3929:16-18, lo3 AA3930-3933, to4 AA3937-3942,

1 at 8.10. vol. 16. vol. vol. 16. vol'. 16. 16 3933-3936, 6.

14

superior court enteredits order approving the stipulation

to augment to April the CEQA record with some 140 pages

on June

13,2011, dated prior for for

of materials outfall

5, 2010. I5 Those RDP, and

materials

related

to the brine CH2MHill

facilities circulated

the proposed comment

included

the Draft

Report,

by MRWPCA's ALT refused

environmental

consultant.I6 request 5, 2010, to augment including and filed items, the record the Final

to stipulate dated D.10-12-016 NODs. record On

to MCWD's after and June April the

with

certain

materials Report, 2010

CH2MHill December, augment notice 21167.6, The filed of the

Commission's MCWD record

MCWD's a motion such to

10, 2011, required Public

CEQA

to include under

as its section

final

project

approval (e)(5).

Resources court denied stated

Code the that

subdivision

107 The ruling and that Coast

superior on the the

motion.

18 had

superior a NOD

court's

amended 2010,

motion proffered

MCWD

in March,

augmentation ''19

material

was "not In adjudication was

considered the summer

by Marina of

in making

its decision. summary

2011,

MCWD 'including

sought its claim

judgment

or court 1759,

on multiple jurisdiction

grounds, by reason

that the superior Code section

without

of Public

Utilities

subdivision against since affected

(a). 11 Concurrently, with ALT's the

MCWRA similar same suit project,

moved against

to consolidate MCWRA,

the action arguing that be

MCWD both cases

involved

its due process Both

rights

would

in its absence

without

consolidation._l_

motions

were

denied

105 AA3374-3376, 106 ROP8216-8225, 10v AA989-995, 18 AA3600, 109Ibid. vol.

vol. vol. vol. 4.

14; ROP8143-8283, 15. vol. 15.

vol.

15.

14; 3651, vol. vol. 5.

IIOAA1015_1026, 1,, AA3894B-3896,

16; 4421-4423,

vol.

18; RT, as deemed

augmented

15

in their entirety.ll2 After defeatof MCWRA's consolidationmotion, MCWD raised the jurisdictional defenseof failure to join indispensible partiesunder CEQA, contending that MCWRA and Cal-Am, its co-signatories in the RDP agreements, ere indispensiblein this ease)13 MCWD also sought early w trial of its special defenseof lack of subject matterjurisdiction, including due to preemption under Public Utilities Code section 1759, subdivision (a).TM
granted parties The early trial leave 16 MCWD motion was denied) its 15 However, to assert its Answer, the an superior court

MCWD defense)

to amend

Answer

indispensible to

did so, conforming

as amended,

the evidence Trial counsel address to the presented ALT's for

presented on the the

at trial)_7 petitiori was held and on October requested was 27, 2011. an denied) At trial, to

CEQA

Commission orally briefed evidence petition,

appeared curiae,

opportunity _8 In addition _9 MCWD the were merits

the court arguments record CEQA

as amieus by

which

MCWD

as a responsible oral argument

agency, on

and

extensive that

of

contending

MCWD's and were by ALT) 2

decisions supported

lawful,

did not constitute evidence on each

an abuse and every

of discretion issue raised

by substantial

by

Order

of Oct. Motion vol.

23,

2012

(Ex.

B to Muzzin ("RTA") vol.

Declaration 7-8, 11-12. vol. 21.

in support

of

Appellant's 112AA4364, t_3 4473-4474,

to Augment 17; 4447-4451, vol. 18.

R_ecord)

18; 5354-5356, vol.

4476-4478, vol. 21. vol. IX. vol. 21. IX. vol. 3. (lead

4483-4492,

18; RT2446-2447,

vol. IX..

it4 AA4398-4403, JJSAA5351_5352, 1_6RT2446-2447, 117AA5334_5343, JJ8 RT2407, 119AA529_535, 120RT2452-2463 vol.

agency),

2463-2498

(EIR

adequacy),

vol. IX.

16

Notwithstanding MCWD's affirmative defensesand its argument and evidenceon the merits, the superior court issuedan Intended Decision finding in favor of ALT on December19, 2011.TM
did not reach issue the against legal issue of EIR adequacy, but filed The Intended decided Decision the lead

merely Objections

agency Decision, defenses, adequacy, superior the

MCWD. errors

122 MCWD as to court's

to the Intended of the affirmative to determine EIR the

raising its lead m court's

determination and two its failure factual

agency

determination out the

MCWD

also pointed that that one for the of the the

errors

on which rested,

conclusion assumption than EIR

section RDP

1759 was

did not apply a separate

i.e., (I)

incorrect rather

public-agency-only reviewed and (2) the in the

project

three Water be
TM

alternatives Project, out

Commission's assumption approval

Coastal could

incorrect

that

the

RDP

carried

without

Commission

and Cal-Am Prior to the filed

participation, deadline a request to

object

to

the

superior court clarify

court's that

Intended its decision 2, the

Decision, had 2012, EIR also the

ALT found

that.the EIR

superior

the Commission's court issued

to be inadequate. Intended of water 126

125 On February Decision rights finding

superior

an Amended to analysis of EIR

to be inadequate to ALT's Again, other

with

respect

but not with

respect

six claims filed

inadequacy. raising error

MCWD

Objections,

as to the

court's

EIR

121AA5362-5383, 122AA5382, vol. 123AA5392-5393, 124AA5393-5396, 125AA5385_5390, 126 AA5435, issues vol. surrounding

vol. 21.

21. vol. 22.

5396-5402, vol. vol. the 22. 21.

22 ( "the

final

EIR

does

not

contain

a discussion

of the Project

availability

of groundwater environment").

for the Regional

and the impacts

on the physical

17

adequacy determination concerning water rights._27

MCWD

also

incorporatedall of its objectionsto the Intended Decision._28On February 29, 2012, the superior court ruled that its AmendedIntended Decision was final for all purposes. 129 On March 5, 2012, ALT dismissed its declaratory relief claims in their entirety.130 On April 17, 2012, final judgment was enteredin favor of ALT and against MCWD. TM
committed lead agency EIR two for The superior abuses and court's judgment held that MCWD as final, the EIR of

prejudicial the RDP;

of discretion: (2) relying on

(1) failing the

to proceed

Commission's RDP, because

certified "does

as adequate

for review of the

of the proposed issues the made

not contain for ''132

a discussion the The areas [RDP] superior

surrounding impacts no findings

the availability on the physical of the

groundwater environment. other

and court ALT .did not

on any

six

substantive The defense With

as to which court

alleged state

the Commission's any decision on

EIR was MCWD's

inadequate. mootness

superior

to the attack the

on Resolution superior

2010-18. court issued a writ of mandate

its judgment, to vacate

directing lead The

MCWD

Resolutions circulate

2010-18

and 2010-20, a new EIR

and to act as for the RDP] abuse rights; 33 of 2)

agency mandate

and prepare, directed including,

and consider

MCWD but not

to address limited

its purported following:

"prejudicial 1) water

discretion

to, the

127 AA5449-5460, f28 AA5447-5448, 129 AA5482, _30AA5484, 13_Ibid.; vo1.22. vol.

vol. 22. vol. 22. 22. 5491-5492, vol. 22. vol. 22. vol'. 22.

131 AA5487-5489, AA5523, 133 AA5488,

5529-5530,

18

contingencyplan; 3) the assumptionof constantpumping; 4) the Agency Act exportation prohibition; 5) brine impacts on the outfall; 6) impacts on overlying andadjacentproperties;and7) water quality.''134
C. Appeilant's Writ Petitions MCWD filed a petition the was for writ superior summarily of mandate order by

On September in this Court, Case

29, 2010, No.

H036084,

challenging That petition subsequent was no denied

court's

overruling Order dated

MCWD's April

demurrer. 7, 2011.

denied

MCWD's $192285, with entered

petition on May

for review 18,2011.

to the

Supreme On could court's ALT's mandate final subject subdivision August denied

Court, Case No. April 12, 2012, been

final

judgment than

from

which the

MCWD superior of of

appeal final

having dispositive

more

six weeks weeks

after after

order

and' more filed

than five a

dismissal for writ court's

remaining

claims, Case

MCWD

second

petition

in this Court, order

No. H038167, 29, 2012 Public was

challenging on the Utilities sole

the superior ground

dispositive matter (a).

of February under petition

of lack

of

jurisdiction That and writ

Code denied Case

section by No. Order 204634,

1759, dated was

summarily for review,

2, 2012,

MCWD's 12, 2012. denial without

petition

on September A summary

opinion 888,

is not 901.)

a decision Accordingly,

on the the

merits. of this

(Kowis each Court

v. Howard of MCWD's is not bound D. After Project

(1992) grounds

3 Cal.4Ih

merits and

for appeal by prior

remain orders

to be determined, in the foregoing cases.

in any way Cessation was

judgment for leave

entered out

below, a different

Cal-Am replacement

applied water

to

the

Commission

to carry

supply

134 Ibid.2

AA5488-5489,

5523,

vol. 22.

19

project insteadof the RDP.t3s Cal-Am proposedto implement "a modified version of the North Marina project" alternative,which wasoneof the other prqject alternativesevaluatedat a project level in the Commission's final EIR) 36 In its July, 2012 decision granting Cal-Aln'S request, the

Commissiondeterminedthat Cal-Am would bepermitted to withdraw from the RDP) 37 However, the Commission'sdecisiondid not alter the findings andconclusionsin its prior determinations. ThereIbre,the instantaction is not moot,andit remainsjusticiable for five additional important reasons. First, the Commission's decision to permit Cal-Am to withdraw from the RDP has absolutely no bearing on the property transfer that was overturned by the superior court's judgment, and thus MCWD and the Armstrong family arestill boundby the final judgment below purporting to invalidate the transfer._38 Second,although it is unlikely that the RDP will be built even if MCWD prevails in its appeal,MCWD must pursue its appellateremedies becauseprevailing party attorney.feescould be awardedto ALT below if thejudgment were not appealed. 139 Third, Cal-Am's current proposal before the Colnmission is a variation of the same North Marina alternative that was reviewed at a project level in the Commission's EIR.14 Cal-Am's pending application relies,at leastin part, on the analysisin the sameCommissionEIR that the 135 the Matter of the Application of In
Company, etc.
see

California-American LEXIS 4.

Water 300 ("D.12-07-

(July

12, 2012)

2012

Cal. PUC vol.

008"), * 1. 136 Id. at *25, 13vD.12-07-008 138 AA5529,

ROP1994, at *36. 22.

2106-2113,

vol.

139 AA5489, vol. 22. 140 D.12-07-008 at *25.

2O

superior court purported to invalidate in the judgment against MCWD below.)41 Fourth, without resolution of MCWD's appeal in this case, the superior court's decisionbelow will continue to impede and interfere with ongoing efforts of the Commission and affected individuals and organizationsof the Monterey County community, including MCWD, to address and resolve the urgent iaroblem of securing an alternate water supply for Cal-Am's Monterey Peninsulaservicearea. Fifth, under Public Utilities Code section 1759(a), a precedentin which an
findings stand. resolve present ultra vires final Court decision decisions has noted of a superior of the the that court purports must not to overturn be allowed its discretion interest" (2010) the to to and 188

and This

Commission

importance are in the

of exercising "broad (Malatka public

important a potentially 1074, v. City

questions recurring 1088, of Rancho

controversy. citing

v. Helm for

Cal.App.4th Expansion 80.) E. The (Pub.

Cucamongans (2000)

United

Reasonable 473,479-

Cueamonga

82 Cal.App.4th

Nature action

of the

Action for writ Civ. of mandate Proc. 1085.) under ALT alleging and (2) CEQA. sought errors EIR for

below Code

is a petition 21168.5; Resolutions agency Code

Resources

invalidation by MCWD

of MCWD's in (1) lead

2010-18

and 2010-20, for the RDP

determination which acted

adequacy review

for the RDP. of the proposed

142 MCWD, RDP, raised

as a responsible defenses,

agency

multiple

affirmative

and also

1411bid. 142 AA29, 30, 31-32, 33, vol. 1.

21

defendedthe CEQA action on the merits.143MCWD maintainsthe action is an impermissiblecollateral attackon final Commissiondecisions. F. Relief Sought in Trial Court ALT sought and receiveda determination by the trial court that (1) MCWD, not the Commission, should have acted as lead agency for environmentalreview of the RDP and (2) the Commission's final EIR for the RDP wasnot adequateunderCEQA.144 MCWD soughtdismissalor denial of the CEQA petition on multiple affirmative defensegroundsandon the merits,t45 G,
MCWD Judgment and Intermediate Finality and Appealability appeals from Ruling (1) the judgment of August Determinations Appealed;

entered

on April

17, 2012,146 of

and (2) the Amended the CEQA The Proc. 904.1, The determination and which record).147 April sub& Amended involving substantially

11, 2011

(denying

augmentation

17, 2012 (a)(1).)

judgment

is final

and appealable.

(Code

Cir.

Ruling

of

August

11,

2011

is

an

intermediate the judgment, 906.)

the merits affects

and necessarily rights.

affecting (Code

MCWD's

Civ. Proc.

STANDARD A. Determinations of law, such

II. OF REVIEW Are Reviewed of De Novo jurisdiction v. Board and of

of Law

Questions statutory preclusion,

as questions de novo.

statutory

are reviewed

(City

of Marina

143AA511-535, 144 AA5488, AA1015-1026, 146 5487-5528, 147AA3651, 145 AA511-535,

vol. vol. 22.

3; AA5334-5343, 3; AA313-334,

vol. 21; RT2429-2498, vol. vol. IX. 2; AA5334-5343,

vol. IX. vol. 21;

vol.

vol. 5; RT2429-2498, vol. 22. vol. 15.

22

Trustees

of Calif

State

University

(2006)

39 Cal.4th Court (1999)

341,355-356; 20 Cal.4th extends v. Vista

Regents 509, 531 .) to

of University Where

of California meaning the

v. Superior

the statute's with (2007)

is unambiguous, plain 201, (1996) language.

the inquiry (Shirk

simply Unified

compliance School Company (applying Code Dist.

statute's

42 Cal.4th Court

211; see also San Diego 13 Cal.4th 893

Gas & Electric 916-918 Utilities

v. Superior statutory section

("Covalt"), that Public with

construction prohibits

principles suits

to determine that interfere

1759

Commission

jurisdiction).) B. Judicial for 412, trial (2006) Responsible 427. court. The CEQA review Growth, reviewing Review under Inc. CEQA is de novo. (Vineyard Cordova scope Planning Area Citizens

v. City of Rancho applies the same

(2007) and

40 Cal.4th as the

court for

standard

(Gilroy

Citizens

Responsible

v. City

of Gilroy

140 Cal.App.4th In reviewing review extends of discretion." if the agency or if the substantial the

911,918.) agency

As this Court actions "Abuse or under there was

has noted: CEQA, this court's abuse by law by

"only has

to whether

a prejudicial required not

(21168.5.) determination evidence." Neighborhood 1351,

of discretion in a manner is

is established supported

not proceeded (Ibid.) Assn. 1371.)

decision

(Sunnyvale (2010)

West

v. City

of Sunnyvale

City

Council

190 Cal.App.4th "[Q]uestions

of interpretation of law." (2006) (City

or application of Marina at 355-356, of Supervisors

of the

requirements

of

CEQA State

are matters University

v. Board citing

of Trustees Save Our

of Calif Peninsula

39 Cal.4th County Bd.

Committee 99, 118.) In

v. Monterey

(2001)

87 Cal.App.4th

reviewing

an

agency's

factual

determinations

for

substantial

23

evidencein a CEQA case,"the abuseof discretion standard'command[s] much deferenceto factual and environlnental conclusionsin the EIR based
on conflicting ultimate evidence.'" to proceed (City of Marina, the supra, 'is 39 Cal.4th at 355.) one, "The and

decision

with

project

a discretionary supported Society by'

will be upheld evidence Cruz (2009)

so long as it is based (California 957,

upon Native 1003.)

findings Plant

substantial of Santa

[Citation]"

v. City

177 CalApp.4th evidence"

"Substantial information though other that

in a CEQA

case

consists to support reached." (1988)

of"enough a conclusion, (Laurel 47 Cal.3d

relevant even Heights 376, 393,

a fair argument conclusions

can be made also be

might

Improvement citing Cal.

Assn. Code evidence,

v. Regents Regs., tit.

of Univ. 14

of Calif. ("CEQA

Guidelines"), to the

15384(a).) environment upon in a fact, subd.

Substantial CEQA or expert (e)(1).) case,

concerning fact,

physical

impacts assumption

"includes

a reasonable by fact." does

predicated Code

opinion Substantial

supported evidence or

(Pub. not

Resources

21080,

consist or

of"argument,

speculation, (Pub.

unsubstantiated Resources C. "The governed (County Among record Code

opinion" 21080,

erroneous (e)(2).) CEQA

inaccurate

information.

subd. of the

Contents content of

Record records section Court that

Pursuant in

to Statute proceedings inquiry. 1, 7.) CEQA is

administrative Code

CEQA

by Public of the are: .. (5) All with Orange broad

Resources v. scope Superior

21167.6," 113

a statutory Cal.App.4th in the

(2003) must

of materials

be included

notices and written

issued approval

by the or with of public

respondent any other the project agency

public law

agency 9)

to the The (10)

comply processing

this division of the final

governing ....

documentation Any other

decision

materials

relevant

to the respondent

public

24

agency'scompliance with this division

the merits (Pub. Resources of the project Code record .... Subdivision pretty much

or to its decision

on

21167.6(e).) will include

(e) "contemplates everything compliance of Orange, that with ever

that the came in 113 in a to of v.

administrative near a proposed to

development that

or to the

agency's (County to the

CEQA

responding Cal.App.4th CEQA project Merced Superior included purposes D. Parties that their case,

development." "[W]hen it comes

supra, record prejudicial v. County Dist.

at 8.) any

administrative

reduction (Id.

in its contents at 13, citing 362,

is presumptively Protect Our Water

proponents." (2003) Court

110 Cal.App.4th (2012)

373; 697,

Consolidated 717 ("written

Irrigation materials"

205 Cal.App.4th are subiect

to be

in CEQA of statute).) Joinder who

record

to "broad

interpretation"

to promote

in CEQA

Cases in the subject their Proc. of matter ability 389, of litigation, to protect subd. action (a).) must such that A be

claim will

an interest "impair parties.

absence

or impede" (Code Cir.

interest, recipient named Case

are necessary of an approval as a real party that

that is the in interest.

subject

a CEQA Code section

(Pub.

Resources under

21167.6.5(a).) 389. (County A party a public Code an will supra,

law

is clear

such parties Court

are necessary

of Imperial that proposes

v. Superior to undertake only (b);

(2007)

152 Cal.App.4th supported indispensible. subds. (a), (d).) provided (County

13, 30-34.) with

an activity but

by a contract (Pub.

agency 21065,

is not subd.

necessary, 21167.6.5,

Resources to join dismissal

Failure that

indispensible not "thwart

party rather

is grounds than

for dismissal, justice." Code

accomplish Resources

of Imperial,

152 Cal.AppAth

at 40; Pub.

21167.6.5(d).)

25

Courts consider fbur factors in deterlnining whether a party is indispensible: (1) to what extent a judgment rendered in the person's absencemight be prejudicial to him or those alreadyparties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures,the preiudice can be lessenedor avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or 'cross-complainant will have an adequate remedy if the actionis dismissedfor nonjoinder. (Code Cir. Proc. 389, subd.(b).) Upon weighing thesefactors, the court determines"whether in equity andgood conscience"the mattercanproceed without that party or if it must be dismissed. (1bid.; County
supra, the trial 152 Cal.App.4th court's to absent at issue); (1989) discretion parties at 40 (weighing by dismissing and the availability the factors the and finding due of Imperial, no abuse potential of

action, of other

to the

prejudice to the EIR San have Mateo

avenues Association

of challenge v. City of should

see also Beresford 207 Cal.App.3d

Neighborhood 1180, 1187-1190

(developer

been joined

as a real party

in interest).) III. ARGUMENT

A.

The Superior Court was Without Jurisdiction ALT's Suit Challenging Final Decisions of the Commission 1. Summary below of argument an impermissible Public part: of direct correct, collateral Utilities

Over

The final 1759, orders

action

constitutes

attack Code

on

and decisions

of the Commission. in pertinent except to review, of 'the commission or operation the

section

subdivision (a) No court shall any delay have order

(a), provides of this state, jurisdiction or decision

[a court reverse, thereof, in the commission

review]... or annul or of its

or to suspend or to enjoin, performance restrain,

the execution

or interfere with official duties ....

26

By this statutory provision, the Legislature has expressly denied the California courts .jurisdiction over collateral attacks on Commission decisions. In its proceedingA.04-09-019, the Commissionapprovedthe RDP and the RDP project agreements. MCWD was a party to the Commission proceeding and a signatory to the SettlementAgreement,which, with the Commission's approval,resolvedthe proceedingandestablished RDP. the In final Commissiondecisionsrenderedboth before and after ALT filed the action below (D.03-09-022, D.09-12-017, and D.10-12-016), the Commission found that (1) it was the lead agency over the project for purposesof environmental review under CEQA, and (2) its final EIR was adequateunder CEQA. The superior court rendereda decision finding that (1) MCWD, not the Commission, was the lead agency for the RDP, and (2) the Commission's final EIR wasinadequateunderCEQA. Under Public Utilities Code section 1759, subdivision (a), the superior court was without jurisdiction "to review, reverse, correct, or annul" the Commission's decisions,or "to suspendor delay the execution or operation" of those decisions,or "to enjoin, restrain,or interferewith the commission in the performanceof its official duties." This Court should reversethe judgment below and remand the matter
with ruling instructions would to dismiss the need the action for want to the superior court Such a

of jurisdiction. any

obviate

for the Court

to reach

of the additional

arguments

herein 2.

raised. Public Utilities Code section 1759(a) preempts suit entirely, and the case should be dismissed a court's of Appeal "power (1941) to hear ALT's

Subject case."

matter jurisdiction'is v. District Court

or determine 280, 288.)

(Abelleira

17 Cal.2d

27

In the absenceof
hear (2005) or determine 35 Cal.4th

subject [the] 180,

matter case.'"

jurisdiction, (Varian

"a trial court Medical supra, Systems,

has no power Inc.

'to

v, Delfino

196, citingAbelleira,

17 Cal.2d

at 288.)

The principle of inherent authority or matter matter determine before jurisdiction, [the]

"subject matter jurisdiction" relates to the of the court involved to deal with the case it. [Citation.] a trial Thus, court subject has And in the absence no power any judgment jurisdiction of subject "to hear or or order is "void

case."

[Citation.]

rendered by a court on its lace .... " (Ibid.) As above noted, denies decisions first Code question section

lacking

matter

Public the

Utilities superior

Code court

section

1759,

subdivision to review

(a), the

unequivocally Commission's The Utilities jurisdiction It is

jurisdiction

or interfere before 1759, this suit. that the by court trial any the this

with the Commission's Court is whether, (a), the

processes. in light superior of Public court had

subdivision

to entertain elementary by decided the

first .court

question in said every

which case it may otherwise, is

must that case: not

be of "The be in

determined jurisdiction. first terms, point

[Citations.]

As was court,

in an early

although

is, that

has jurisdiction; the rights

it would

not proceed

to determine

of the parties."

(Harris (1856) superior other matter

v. Seidell 6 Cal. court arguments remanded Here, the to 685; was

(1934)

1 Cal.App.2d

410, supra,

417,

citing

Clary

v. Hoagland If the of the the

see also Abelleira, without that jurisdiction, The court is ALT

17 Cal.2d need

at 302-304.) not reach be reversed, any

this Court judgment with

follow.

should directions deprived the

and

to the superior superior grant interfered relief court to

to dismiss of

the suit. matter below of the

entirely because

subject petition duties

jurisdiction impermissibly

CEQA and official

with the orders,

decisions

28

Commission in direct violation of Public Utilities Code section 1759, subdivision (a), andthe SupremeCourt's
13 Cal.4th 27 Cal.4th court Utilities (2010) matter not 840, at 918-919; 256, 279.) see The also Hartwell Covalt Corp. decision. v. Superior sought (Covalt, Court supra, (2004)

only relief section

that ALT 1759,

and that the superior (a)" of the Public Co. not was at pp. reverse, of final

granted Code.

"transgresses (City

subdivision Refining Jan. directly supra, court

of Los Angeles 840,

v. Tesoro denied

and Marketing 12, 2011.) or that It does Cal-Am

188 Cal.App.4th that ALT to the The did not suit.

849, review

sue the (See,

Commission Tesoro, no superior the

a party 849.)

e.g.,

188 Cal.App.4th may "review,

statute

is plain:

correct,

or annul"

or "suspend (Pub. court's that

or delay Util. Code

execution subd.

or operation" (a).) considered by the directly 1759; ("no area

Commission The only and those two) the

decisions. superior questions

1759,

judgment already on those Util.

impermissibly finally decided were

two

(and

were

Commission, contrary to

conclusions

it reached

questions Code 139, there

of the Inc. for

Commission. (1964) a moment and the

(Pub.

1709, 149-150 is an reach

Pratt

v. Coast person which .. the and in

Trucking, should commission conflicting Waters with the

228 Cal.App.2d contend courts on can a given (1974) by that

sensible within

legitimately set

exactly cited with Such

opposite approval

conclusions v. Pacific

of facts"),

Telephone

12 Cal.3d superior Waters,

1, 11.) courts supra,

interference prohibited. at 4.)

Commission's supra, 13 Cal.4th

policies at 918, itself

is strictly 12 Cal.3d court final

(Covalt,

citing

The exercise EIR

Commission

explained

to the superior Commission's

that purported agency and of

of jurisdiction decisions

to revisit'the interfered

lead

adequacy

with amicus

the letter

Commission's to Monterey

performance County Superior

its official

duties.

(Commission

29

Court, pp. 5-6 (entertaining ALT.'s claims contrary to the Commission's final decisions "would intrude upon the Colnmission's exercise of its exclusivejurisdiction, m48)
the propriety a particular (People of seeking superior In its Orloffdecision, own with the Supreme Court noted or not

the Commission's action Beil interferes (2003)

position

on whether

court

Commiss]on 1132,

jurisdiction. 1155 fn. 12.) curiae, were (Id. at

ex tel Orloffv. Orloff, accepting district

Pacific

31 Cal.4th stated could

the Commission's attorney actions with,

position proceed

as amicus because jurisdiction.

held

that

certain

they

cumulative 1155-1156.) and

to, and But

did not interfere in case below, that

Commission court

the superior

ignored to review

the Commission and reverse the

determined

instead final

it had

the jurisdiction

Commission's No brief to the Pacific before

decisions. appellate 1759 court having a Commission reached reported amicus curiae contrary Sarale (superior v.

California

it in a section stated

case has ever in any 189 supra, supra,

a conclusion case. 225, (See 246

Commission's Gas & Electric

position (2010)

Co.

Cal.App.4th 188 Cal.App.4th 31 Cal.4th fraud

court jurisdiction court jurisdiction

lacking); lacking); over district

Tesoro, Orloff

at 849 (superior (superior Koponen 348 (superior (1996) over (1966) Pratt, 46 tort 245 supra, court v.

at 1151 actions); 345, v.

had jurisdiction Pacific court Gas had

attorney (2008)

consumer 165

& Electric partial 1559,

Co.

Cal.App.4th Inc. court had Products,

jurisdiction); 1569-1571 v. Pacific (superior (no

Thrifty-Tel, (superior Limestone court superior

Bezenek jurisdiction lnc. lacking);

Cal.App.4th claims); Cal.App.2d 228

Pellandini 774,

777-779

jurisdiction court

Cal.App.2d

at 153-154

jurisdiction

to reconsider

148 AA3952-3957,

vol.

16; RT1809-1810,

vol. VII, 2403-2407,

vol.

IX.

30

Commission's decision).
Cir. 2011) 660 F.3d 1146,

See also 1154

Kairy

v. Supershuttle position

International "very

(9th

(Commission's

persuasive"

in federal The for the ALT's upon

employment Commission's

suit).) stated position (See and in this case is likewise letter available (finding intrude in

Court's favor

consideration. on its lead agency exercise briefs, filed failure

Commission EIR adequacy

amicus claims

"would

the

Commission's amicus

of its exclusive in Case of justice Nos.

jurisdiction.");

J49 see also

Commission The the Am's agencies successfully deadline. Armstrong raises party This the ability new

H036084

and H038167.15) continues before County to impair it in Calpublic and of the to

extraordinary of the

in this case appearing

Commission,

all of the parties and multiple

application and

proceeding, to

Monterey the

stakeholders, implement a water

understand supply solution sale more

alternatives

in advance

CDO the it

It also Family specter

casts

into question

the final

of real property than two years fees barred

from ago, and

to MCWD that ALT that

that occurred may was recover

attorney's

as a prevailing from that the failure, (a), outset. and, reverse

in a frivolous Court should with

suit follow

jurisdictionally precedent section

settled Code

to remedy 1759,

consistent the superior B.

Public

Utilities

subdivision

court's

purported

exercise

of jurisdiction. Affirmative Defenses Is

Each of MCWD's Remaining Valid and Case-Dispositive 1. ALT's a. CEQA Statutory orders Util. Code claim

is precluded

preclusion and decisions People are conclusive Air in all

The collateral

Commission's actions. (Pub.

1709;

v. Western

Lines

149AA3957,

vol.

16. concurrently-filed Motion for Judicial Notice, p. 1.

15o See MCWD's

31

(1954) 42 Cal.2d 621,

Commission had already When the

630.)

Here, the

when issues

ALT raised

filed

its action

below,

the

resolved ALT

by ALT

in D.03-09-022 issues again in

and D.09-12-017. November analyzed 2010,

thereafter

raised

all the same consultant

Commission's objections

environmental and refuted rejected agency each each for the

thoroughly Then, in EIR has

all of ALT's the that

one of them.151 of ALT's and the that

D.10-12-016, reaffirming was adequate

Commission the lead

arguments its final

it was

RDP

- and decided ALT is (Pub.

approved the issues

the

RDP.

152 Because below a

Commission Commission outcome

conclusively decisions, superior 42 Cal.2d

raised from i709;

by ALT requesting People

in final different

precluded Util. Code

in

court.

v. Western

Air Lines,

supra,

at 630.) b. Res judicata like any other litigant, right Canyon is barred that was from seeking asserted v. City of

A CEQA relief and Los on the decided. Angeles

petitioner,

basis

of an identical

primary and 1180,

already

(Federation (2004) case

of Hillside

Associations (preclusion as here,

126 Cal.App.4th the same from 28 rights

1202-1205 and,

applies there is no Corp. Wetlands 480-481; (2011) League (no

in a CEQA change

where facts (2002)

are at issue proceeding) 904); 201 Dist. see

in material Co.

the prior Cal.4th

(citing also

Mycogen Ballona 455, of Orange

v. Monsanto Land Trust

888, (2011)

v. City

of Los Angeles Recreation

Cal.App.4th v. County

Silverado

Modjeska

and Parks compare (2009) claims

197 Cal.App.4th v. Castaic rcs judicata Lake due

282, Water to

297-301; Agency differing

Planning

& Conservation 210, of

180 Cal.App.4th and absence

225-233

privity

between

151AA3983-3991, 152AA1286, 1287,

vol. vol.

16. 6. See also AA3952-3957, vol. 16.

32

petitioners).) Here, ALT violated.that settledprinciple of law by seekinga different outcome on the very same claims that the Commission had already decided against it.
Associations, court was supra, bound 2. A case where Council the a court 126

(Federation

of

Hillside Thus, favor.

and the

Canyon superior

Cal.App.4th final judgment prevents becomes render

at 1202-1205.) in MCWD's invalidation moot relief. when

to enter

Mootness

of Resolution it has passed & Wilson 1574.) that (Wilson, prior could to the the

2010-18 the point v. City That was

or cause can

of action

effectively City Wilson had (2011) case,

(Wilson 1559,

of Redwood in the prevent at 1576

191 Cal.App.4th where the

situation to

development

plaintiff 191 court's by moot), Council

sought

been

fully

implemented. of the that project

supra, trial

Cal.App.4th entry

("completion meant

of judgment

therefore

nothing

be accomplished CEQA action

invalidation citing (1986) Future (directing had

of the Resolutions," Palo Alto 384,

rendering Com. 391; for see

petitioner's Fair also Assessment Coalition

Downtown 180

v. City for

Cal.App.3d

a Sustainable 939, 942-947 developer Moniea

in Yucaipa trial court

v. City of Yucaipa to dismiss and CEQA city had

(2011)

198 Cal.App.4th as moot approvals);

challenge rescinded

because Santa 1538, impacts

abandoned

project

Baykeeper (challenge where Appeal sought presented fully

v. City to EIR's

of Malibu analysis had already

(2011)193 of

Cal.App.4th

1547-1551 was the moot of

construction-related been completed by the the case

construction issued and

time here,

Court

its opinion).) obtained

It is also precisely of evidence 53 ALT Resolution

where but

ALT

invalidation court in June with

2010-18,

MCWD was

the superior

that the property never sought

acquisition to enjoin

consummated

of 2010]

MCWD

153AA1474_1501,

vol. 6.

33

from consummating the transaciion. There is nothing left to do to accomplishthe mattersapprovedin Resolution2010-18. ALT provided no evidencethat the propertytransfer hasaffectedthe environmentin anyway. Accordingly, this Court should direct the superior court to vacate its judgment invalidating Resolution 2010-18, because completion
property transfer 3. rendered ALT's petition moot. invalidation of Resolution of the

Lack of ripeness 2010-20 to the mootness a court

prevents

In contrast yet reached (Pacific In Pacific an actual requiring neither There approved imminent MCWRA's controversy When to acquire Santa a term Clara sheet,

doctrine,

a case with Corn.

is not ripe an active (1982)

if it has controversy.

not

the point Found.

where

is presented Coastal identified

Legal Legal

v. California Court and

33 Cal.3d for ripeness: danger

158.) (1)

the Supreme exists

two criteria is an imminent case. (Id.

controversy the court's

(2)there of the test was because have account

of harm Here, its suit. not was yet no nor ripe

consideration Legal

at 171-173.) ALT filed had there 2010-20, could be no

prong was no the

of the Pacific actual RDP,

satisfied the done of

when

controversy and may harm never on

Commission so. Thus,

danger similar

of

Resolution There

resolution

of April

6, 2010.

until the Commission ALT property (2011) but citing After conditional filed

.approved

the project. MCWD (Cedar at 1168-1171 did not had Fair, merely L.P.v. decided City attacking an actual 45 Cal.4th following factually of

suit on April

5, 2010,

in Resolution 194 Cal.App.4th not a final Tara hasty

2010-18. 1150,

(petition present (2008) 6, 2010, remains

project

approval,

controversy), 116, 134.)

Save ALT's

v. City of West Hollywood amendment of the project, on April this case

MCWD's

approval

34

analogousto
attack Just either like the

Cedar the lead Cedar

Fair,

because

ALT

never

amended

its suit

to directly approvals.

agency's Fair

or MCWD'sfinal, ALT rushed a prima Fair,

unconditional to court facie supra, Assn.

petitioner,

on an agency's entitling the at Bd.

preliminary petitioner 1175, (1995) citing

decision, to relief. Calif.

failing [Citation.]"

to "state (Cedar Peace

case

194 Cal.App.4th v. State Personnel

Correctional 1133, 1155.)

Officers

10 Cal.4th The Supreme

Court's had been

Save

Tara

decision too,

observed the

that trial and

the

CEQA

petition courts' operative supra,

it reviewed practical project 45 Cal.4th

premature the

noting

appellate final Tara, be

decision agreement at

to treat

suit as applying post-dated of the City's

to the agency's lawsuit. decision which (Save would

which fn.

126, limited

5 ("review [draft]

ineffective, operative").) Here, administrative mandated which agency's supra, Cedar judgment

if it were

to the

Agreement,

is no longer

the

superior with

court the

denied December, in the

MCWD's 2010

motion final

to augment approvals in this

the as case,

record by statute.

project record MCWD's

_54 Nothing 5, 2010 "to at 1175),

administrative excludes course the the lack superior favor.

concludes final 194 Fair,

on April commitments

and thus a definite cures direct

and the lead (Cedar Fair,

of action" of ripeness. court

Cal.App.4th the Court

Following to reverse its

should

and enter 4. Under

judgment ALT failed

in MCWD's to exhaust 9pponent right

its administrative who participates the challenge

remedies in the project. public (Pub. be

CEQA,

a project

comment Resources t54 AA3651,

process Code vol.

preserves 21177.) 15.

a facial However,

to challenge

the opponent's

will only

35

upheld where the "alleged grounds for noncompliance"with CEQA (Pub. Resources Code 21177,subd.(a)) are supportedwith somethingmore than argumentor
572, 583 opinion. (Bowman v. City of Berkeley scientific because petition).) remedies to filing 253, issues (2004) by 122 Cal.App.4th a layperson opponents the same a litigant is not offered vein, the

(speculation evidence, opinion

on complex petition in support denied

substantial only their

project In

of the

doctrine pursue

of exhaustion its remedies (2007)

of administrative at the agency 147 Cal.App.4th is jurisdictional. 523, 535.) is prior

requires suit.

to fully v. County

(McAllister The failure Club v. City of the at 536;

of Monterey administrative (2008) ruling 163 on

283-288.) (Sierra

to exhaust of Orange trial court's for Diego in

remedies Cal.App.4th the exhaustion

Appellate de novo.

review (Id.

issue Environmental 515,527.)

Citizens of San

Responsible (2011) three

Equitable

Development ALT failed

v. City

196 Cal.App.4th ways. First, ALT (Pub. v. Public failed Util.

to satisfy

the prerequisite

to Code

request 1731, Com.

rehearing subd. (b); 25 Cal. See

of

D.09-12-017 Lobby

at

the

Commission. Monopolies for rehearing 245 Cal.App.2d but final Court.

Consumers 3d 891,902 also

Against

Utilities

(1979

(application supra,

is a jurisdictional at 778-779 failed to seek

prerequisite). (non-party rehearing who was Neither 21168.6; never

Pellandini,

participated precluded did

in Commission from collaterally by the 1756, in Calthe to by

proceeding attacking Supreme subd. Am's

Commission (Pub. subd.

decision).) Code

it seek Util. party

review Code status

Resources (a).) Although

Pub. sought

(f); 1759, proceeding,

ALT and

it participated review

commented and made

on the substantial which

EIR filings were

during raising rejected

Commission's the Commission

CEQA

process

all the

arguments

it raised

below,

36

the Commissionin D.09-12-017. However, it neverraisedthosearguments by filing anapplication tbr

Second, satisfy the ALT's requirements (a). ALT's and a rehearing of D.09-12-017. actions was insufficient section 21177, to

challenge of arguments'

to MCWD's Public Resources

Code

subdivision and

and its evidence presented the and substantial the

as presented no new facts,

to MCWD, nor did it

as briefed any

presented opinion

at trial, to refute EIR (e);

present presented Resources 583.) expert and failed

expert in the Code failed

technical

information (Pub. at

Commission's 21080, to present subd.

underlying ,. supra, based

materials. 122 Cal.App.4th

Bowman deficiencies

ALT

specific ALT

on facts

or contrary argument that MCWD

analysis.

155 Instead, which

chiefly

presented evidence

its opinion, of any kind were

speculation, to proceed

do not constitute to law (Evid. to Code request 1731, Resources or that

according

its decisions 803.) of

not supported

by substantial Third, Commission by the 1756, than

evidence. ALT (Pub. failed Util. Court despite pages

802,

rehearing subd. (b))

D.10-12-016

at

the

Code (Pub.

or review 21168.6;

of D.10-12-016 Pub. Util. with the Code more same

Supreme subd. (f)),

Code letter

its 36-page of supporting

to the

Commission, raising exactly

a thousand

materials,

155 RT2463-2497, 833-834, 1126 2092 2442. 2849 2980 3794 4544 vol. 932, 1169,1264, 2620-2678, 2862-2883, 3075-3093, 4541, 4542, 933,

vol. 947,

IX,

citing

ROP183, 1071, 1074,

203,

221-228, vol. 2825, 5; 2904,

vol. vo|.

1; 820-847,

1027,

1101-1102,

2; 1121-1125, vol. 4;2441-

1272,1370-1371, 2685, 2792, 2296, vol.

1454,1722, 2799,2807, vol.

3; 1932-1934,1994, 2834,2835,2839, 2963-2984, vol. vol. 29798;4539ll;6715,

2180,2193,2194-2197,2242-2297,2257,2271,2278, 2865-2866, 3178,3368, 4547-4556, 2874-2882, vol. 4550, vol.

6;3755,3788-3959,3790,3791,3792, 7;4242,4412-4413, 4553, 4612-4613, 9;5854, 14. 4552, 4728-4732,

3808,3809,3810-3811,3857,

4777-4779,4800,4920,4973-4974,4975-4981,vol. 12;7700-7796,7708-7709,

37

argumentsit was simultaneously making against MCWD in the superior

court. 156

Because the Commission's of noncompliance opinion, superior be directed it failed court's

ALT

never

sought

rehearing

or Supreme to support argument remedies. and

Court

review

of

decisions, with

and because with more

it failed than

its allegations and unfounded the should

CEQA

to exhaust judgment

its administrative be vacated

Therefore, court

should

the superior

to deny 5.

the CEQA ALT failed

petition to join

in its entirety. indispensible Cal-Am the were Water parties and MCWRA, were

Because signatories and were the

MCWD's Settlement

RDP

partners,

to the other

Agreement, m they

Purchase to the

Agreement action and Code not be

project

agreements, as real

necessary (Pub.

required

to be joined (b);

parties .subds. a local

in interest. (a), water (d).)

Resources could

21065, adequately to its own owned own

subd.

21167.6.5, by MCWD, MCWD, MCWRA,

They

represented ratepayers. and

agency

with an obligation a privatelyhave their in the (Pub. Cal-Am,

a local

water

district, water

Cal-Am, agency,

company, rights of

a county-wide agreements, agency (a).) The RDP

in the project the Code and 2010

and related lead subd.

and unique and EIR

interests

validity Resources MCWRA December,

Commission's 21167.6.5, MCWD NOD. in the _58

decisions. roles forth of

diverse were set

proposed

in MCWD's

Invalidation the ability

of the

Commission's and any

EIR

by the

superior on that

court E1R.

impairs (Pub.

of Cal-Am,

MCWRA

party

to rely

156AA2157-3373, 157ROP116, J58 AA1454, 133-34, vol. 6.

vols.

9-14. vol. 1.

138, 211-213,

38

ResourcesCode 21167.3.) Consequently,ust as MCWRA argued to the j superior court in supportof its consolidationmotion, its interestshavebeen adversely affected in its absence. Becausethe relnedy that ALT was Is9 granted against MCWD adversely affected both MCWRA and Cal-Am, including by impairing the Water PurchaseAgreement and other project contracts, both were necessaryparties under Code of Civil Procedure section 389 and CEQA. 21167.6.5,subds.(a), (d).) Besidesprejudiceto absent.parties (CodeCiv. Proc. 389,subd.(b)), the other three indispensability factors are also met here: the judgment could not be shapedto lessenor avoid the prejudice to MCWRA andCalAm (Pub. Resources Code 21167.3);the judgment wasnot adequate, ince s the absentproject partners also sought to rely on the sameEIR that the superior court invalidated; and, finally, althoughALT would indeedlack a remedy against MCWD's - but not the Commission's- CEQA review if the action were dismissed for non-joinder, failure to join indispensible partieswithin
dismissal. the strict timeline Code required under CEQA County is a valid oflmperial, ground for

(Pub. Resources Code 21065, subd. (b);

(Pub.

Resources at 29.)

21167.6.5(d);

supra,

152 Cal.App.4th ALT deliberately Cal-Am (Pub. join and had chose

remedy not

at

the

Commission In addition, ALT

(id. was

at

40), required have

which

it

to pursue. in its suit 21167.6.5., parties,

to join done so.

MCWRA Code

against subds.

MCWD, (a), (d).)

and

could

Resources those

Because

it chose

not to of

indispensible supra,

dismissal at 40.)

is appropriate.

(County

Imperial,

152 Cal.App.4th

159RTA7_8,

11-12.

39

C.

The Superior Merits the merits,

Court

Erred

in Granting

the Petition

on its

On evidence, should

MCWD rebutting aspects

presented each

the

court

below

with

substantial MCWD and

thoroughly prevail on both

of ALT's

contentions. petition:

Thus,

of the CEQA

(1) lead agency

(2) EIR adequacy. 1. CEQA principal have The Commission a lead agency was the lead agency "public agency for the RDP which has the may Code for and

defines

as the

responsibility effect CEQA agency, more

for carrying upon the

out or approving environment." provide both agency private more and

a project (Pub.

which

a significant The lead where 15051, other

Resources criteria projects

21067.) identifying situations Guidelines, agency,

Guidelines discussing than one (a)-(d).) agency, (Pub. agency

detailed public as

qualifies

lead.

(CEQA

subds. lead

A responsible which has

agency

is "a public for carrying

than the

responsibility 21069.) agency than

out or approving Notably, governmental single which

a project." "the powers, purpose lead such

Resources will normally or county,

Code

be the rather

with

general with a

as a city

an agency

or limited will provide

such

as an air pollution or public

control

district

or a district (CEQA Water v. The 13 has

a public

service Planning

utility

to the project." League v. Dept.

Guidelines, Resources Lake

1505 l(b)(2); (2000)

& Conservation 892, 905; Friends

83 Cal.App.4th Rec. and Park

of Cuyamaca 419, (Covalt, the lead whether further based

Valley 428.) supra, agency

Cuyamaca

Dist.

(1994) with Code

28 Cal.App.4th powers. Once

Commission Cal.4th completed circumstances review

is a statewide citing

agency Pub. Util.

broad 701.) the agency

at 923-924, its

environmental require a shift

review, in lead

decision and

changed

environmental on the record

is for the

responsible

agency

alone

to make,

40

before it. (A Local

Cal.App.4th In agencies statutorily decision RDP 1773,

and Regional 1799-1800, the

Monitor citing CEQA

v. City of Los Angeles Guidelines, considered lead 15052.) claims agency. 1709

(1993)

12

D.03-09-022, and concluded

Commission

of numerous was the the Public

that it was Utilities final.

the proper Code

16 MCWD disputing included 161

barred after

by Public

section the

from

it became in its

Thereafter,

Commission review.

alternative addressed

project-level agef_cy

environmental issue,

comments in its final 017,

the lead

and the Commission certified its final EIR all three of

responded in D.09-12the project the

EIR. 162 When its When

the Commission status as lead

it reaffirmed 163

agency the

for

alternatives. Commission

it finally

approved

RDP agency. part

in D.10-12-016, _64 RDP and would

again

reaffirmed water

its status agency

as lead whose of the

MCWD been to own

is a local and operate

in the facilities

have

a portion

RDP

to supply through certificated

desalinated $106 by million the

water

to Cal-Am pipeline 165 the The

for delivery facilities RDP

to Cal-Am's owned

customers and been the

in RDP

by Cal-Am not have and

Commission. without 66

could

financed

or

constructed CommissionJ

participation

of Cal-Am

approval

of the

In adopting other than the lead

Resolution agency, i.e., vol. vol. vol. 14.

2010-20, which has

MCWD

acted

as "a public for carrying Public

agency, out or

responsibility agency" under

approving

a project,"

a "responsible

Resources

160 ROP7666-7695, 161 ROP1957-1959, 162 ROP4531-4535, _63 ROP1963-1964, r64 AA1286, 165 ROP119, 1287, vol.

1994-1996, 9. 4.

vol. 4; 5096-5097,

vol.

10.

vol. 6. 1; 2787-2790, vol. 4; 116, vol. 5. 1. 124, vol.

166ROP1957-1959,

41

Code section 21069.167MCWD did not have authority over Cal-Am or MCWRA. MCWD approvedits own participation in the RDP - expressly conditioned on Commissionappro.val as one of threeproject partners. It was not carrying out a project alone and could not do so. (CEQA Guidelines 15051, subd. (a).) MCWD did not have the "greatest

responsibility for supervisingor approving the project as a whole." (Id. at subd. (b).) The agency that had that responsibility was the Commission, pursuantto the Legislature's chargein A.B. 1182. MCWD is a local water district, an agencyof "single or limited purpose." (Ibid.) MCWD did not "equally meet the criteria" for lead agency status. (Id. at subd. (c).) But evenif it did, it was not the "agencyto act first on the project in question." (Ibid.) That agency was the Commission, which had already completed environmentalreview of the RDP. ALT's heavyreliancein its lead agencyargumentson Citizens
Force (1979) CEQA on Sohio 23 Cal.3d v. Bd. of Harbor 812, Commissioners As Sohio of the Port plainly of Long Task Beach the

is misplaced.

states,

citing

Guidelines: When agency act two for first on the as early or more the public in that agencies question the equally an EIR, shall "the be qualify agency the impact planning). Commission did not, the and ALT's and MCWD as Lead the lead is to be

the purpose project principle

of preparing

which should

Agency

(following assessed (Id. at 814, equally clearly EIR

environmental

as possible added.) lead Here,

in governmental even which if the they

emphasis as

qualified acted first project

agency, it prepared, MCWD

Commission certified the

because before

circulated, took any

finalized action, j68

for the

insistence

167 ROP4,

vo1. 1. 1965-1966, vol. 4.

16S ROP1963-1964,

42

that MCWD unintentionally becamethe lead agencybecauseit "acted first

to approve" Public Not the RDP, Code three the agency 169 albeit section conditionally, 21I)67, CEQA says that its will. have reached the agency "principal Resources same conclusion serve as when lead for is a mischaracterization Guideline about 15051 acting and of Sohio. "to to

Resources one of those

authorities single against courts act

anything ALT contends

first MCWD

approve" "become"

a prqiect, the lead

caused

Other presented agency carrying Planning Cuyamaea Conservation environmental table, the when EIR, and

appellate the a or

with where out

contention

th_.t a local agency had the

should

statewide approving

responsibility Code

a project." League, 28 local supra, Cal.App.4th agency only should lacked its

(Pub.

21067; of & for the

& Conservation Valley, League, review, the statewide the supra, a

83 Cal.App.4th at improperly "provincial have required served 428.)

at 905; Friends In served Planning as lead to

bringing agency EIR

experience" as lead and

prepared

therefore

information

of a statewide at 906for the

nature. 907, the

(Planning 920.) Due

& Conservation to that error,

League,

supra, court

83 Cal.App.4th remanded

the reviewing of

the matter Here,

statewide

agency's

preparation requires the wrong

a new

EIR.

(Ibid.) remand

judgment agency. of

improperly That was

opposite result

outcome, sought

to a local in Friends to the

the equally where

by petitioners properly -just deferred as with

Cuyamaea agency

Valley,

a 'local

agency

statewide here - the

for environmental agency would would occur.

review, ultimately (Friends

because decide

the RDP when" supra,

statewide in question

"whether

and Valley,

the project

of Cuyamaca

169AA29,

vol.

1; 356-357,

vol.

2.

43

28 Cal.App.4th at 428.) That court observedthe sameerror that underlies the judgment here - petitioner's case was based on the "faulty factual premise" that the local agency had ultimate authority over the project. (Ibid.;
(affirming statewide City of Sacramento of CEQA preemptive had v. SWRCB petition authority).) changed after alone, assume completion as lead a of the Commission's responsible status agency, and prepare change Regional had to (1992) against 2 Cal.App.4th regional water 960, board, due 978 to

dismissal agency's

If circumstances E1R, it was MCWD's

prerogative

determine and circulate

whether a new

or not it should EIR (Pub. based

agency

on new

information 21166;

or a significant A Local Here, and

in circumstances. Monitor, supra,

Resources

Code

12 Cal.App.4th If there were

at 1799-1800.) any question final the and very the

circumstances circumstances D.10-12-016, reaffirming long

not changed had changed,

at all. the

as to whether approval, RDP, and

Commission's by approving agency role

project same adequacy

removed

all doubt lead

the after

Commission's ALT's suit was There here. law, (Pub. acting

of its EIR,

filed. _7 no failure Code to "proceed[] 21168.5.) agency its and information 1709; lead tliere in a manner MCWD where agency was requiring Pub. the followed Commission and required by law" of the already its in under A Local if

was

Resources

the letter had

as a responsible determined review, or new Util. Monitor,

conclusively environmental circumstances CEQA. (Pub.

status no

completed change procedure 21166;

subsequent

a different Code

Code

Resources

and Regional

supra,

12 Cal.App.4th

at 1799-1800.)

Therefore,

170AA1286,

1287,

vol. 6.

44

this Court reachesthe merits of the CEQA petition, it should reversethe superiorcourt's decisionthat MCWD was lead agency.
2. ALT superior rights, court and alleged The Commission's seven inadequacies on just on EIR was adequate Commission's EIR.
TM

in the

The water of

rendered rendered

a decision no

one purported ALT's other

inadequacy, six claims

decision

inadequacy.

172 a. Water Rights found the that the EIR "does not contain for

The a discussion the [RDP]

superior of the

court's issues

judgment surrounding

availability environment".

of groundwater ]73 ascertain: but whether In the regular

and the impacts

on the physical on appeal, establishes [the of its.., evidence, duty. (Evid.

In reviewing not the with whether record

the matter the contains of record

this Court compliance agency] regulatory we Code at 919,

must

evidence

failed presume 664.) citing

to comply

the requirements contrary of official supra,

program.

absence performance (Gilroy supra, fully superior Citizens,

140 Cal.App.4th at 976.) CEQA's Here, the

City of Sacramento, of water below. rights The

2 Cal.App.4th complied court's An EIR the adverse subds. (2005) (b)(1) 133 with decision

EIR's

discussion as discussed

requirements,

is not supported to analyze if they

by the record. a proposed are project's or "significant potentially Code of Santa EIR must

is required environment" changes and

effects substantial, 21100, Clarita

on

"substantial, (Pub.

in p@sical (d); California 1219,

conditions." Oak

Resources v. City an

Foundation Thus,

Cal.App.4th

1225-1226.)

171AA371-403, 172AA5488, 173AA5523,

vo]. 2. 5523, vol. 22. vol. 22.

45

analyze water rights in depth if securing water rights needed for the proposed project constitutes a potentially substantial adverse change in physical conditionsin the environment. Water rights, or "availability of groundwater," as the Judgment stated it, is typically an issue that arises when project proponents must secure a new supply of potable water for residential or commercial development. (See,e.g.,
(adequacy supra, 133 of water supply at Center Vineyard analysis 1226-1227 v. County 1088 Cherry at Valley 316, Area Citizens, supra, 40 Cal. Oak also 4th at 428

at issue); (same).

California See

Foundation, Shasta

Cal.App.4th Ecology

Mount __

Bioregional __ [2012

of Siskiyou *85-88] Pass

(2012) (record

Cal.App.4th EIR's v. City of EIR rights

Cal.App.LEXIS of water (2010) analysis the use);

supported

description of Beaumont water that supply "far

Acres

and Neighbors adequacy water and and

190 Cal.App.4th due

335 (affirming reliance would

to proponents' the project

on existing consume), of "whether Basin's the

exceeded" EIR

amount

346-347 to what overdraft "would

(proponents' extent conditions cause in [the

adequately would existing

addressed impact conditions"

question the by

project] beyond

Beaumont showing existing an

project

no 'additional Western v. County

withdrawals'" Placer of Placer

beyond Citizens (2006) and for

conditions) Agricultural 890,

(emphasis and 908 Rural (water would a "[a]n

original);

Environment budget be focused

144 Cal.App.4th concluded has analyze to use water noted, water

on maximum analysis that permit upheld).) did is not not

demand This

supplies

adequate; review

Court

in addressing rights,

CEQA

sufficiently in order

appropriative offset." (Save Similarly

required

a reduced at 113.)

pumping

Our Peninsula, here, the

sup, ra, 87 Cal.App.4th RDP was not a new

housing

or

commercial

46

development that would require an addition to the community's water supply, potentially causing substantial "adverse changes in physical conditions." (Pub. ResourcesCode 21100, subd. (b).) The RDP's

primary objectives were to "[s]atisfy Cal-Am's obligations to meet the requirementsof SWRCB Order 95-10" by providing a "reliable drought proof water supply" for
illegal Carmel uncertain only testing, Purchase pumped Carmel River water River and supply, "protect ''174 the Monterey Peninsula to replace the current of the of an

as well as protect the 'local

the species from

and habitat the effects would

economy

supply.

To accomplish water from

its goals, coastal wells) also

the RDP 75 outlined of

draw further Water water Valley fifteen

non-potable, the EIR

brackish took

Pending in the source Salinas than

a conservative for the RDP, be

approach, that the

Agreement that might Basin

percentage as would usable

arguably ("SVGB")

characterized

Groundwater percent.
176

groundwater

be no more

There particular, 4,400 6,600 record) amount percent AFY AFY 77 of

was

no

question sufficient

that

the project .rights in the rights Fort are would

proponents, SVGB to a total

and

MCWD in excess AFY),

in of plus

already (out

held

to pump of 9,350 on than to of

of MCWD's to the existing rights

claimed former rights that

in relation MCWD's groundwater project's

Ord, far be

based greater needed AFY 5.

evidence the

in the

maximum fifteen source

extract brackish

of the

approximately

20,000 vol.

t74 ROP1993-1994, J75 See, 4544, 176 RT2471:6-2478:13, 4547-4556,

2083-2084, 2789, 9. vol.

vol. 4; 2790, vol. 5. vol.

e.g., ROP2787, vol.

2485:4-87:8, IX, citing citing

IX, citing

ROP3794, 2792, vol.

vol. 7; 45395; 7700-7796, 4547-4556,

177 RT2469:25-2471:5, vol. 14; RT2475:1-2478:1, vol. 9.

ROP2685, vol.

ROP2685,

5; 4539-4544,

47

water._78Thus, no additional groundwaterrights would be neededand no additional groundwaterwould be extracted,since MCWD would take that sameamountof product water from the project andit would defer pumping an equalamountfrom its current,establishedsourcesof right in the basin: the approximately fifteen percent of intruded groundwater from the [SVGB] would be delivered as desalinatedwater to the MCWD serviceareawithin the SVGB in an amountequal to the volume of extractedSVGB-groundwater, as indicated by the initial salinity of the sourcewater. EIR Master Response13.6.179 This is substantialevidenceof just the sort of"reduced pumping" offset that this Court found lacking a decadeagoin the SeptemberRanch project proposal. (Save Our
Cal.App.4th No necessary Cal.App.4th impact" that at 143.) "additional to carry at 346-347 out withdrawals" the RDP. of SVGB groundwater Valley shows record pumping at on "enough adequate at Clara 1373, 393, River *85-88 springwater, relevant for citing v. the Pass, would supra, be 190 Peninsula, supra, 87

(Cherry evidence basin,

("substantial

the [project] supported

will not

conditions would 2012 that

in the groundwater not increase

conclusions Mount supported rather than the

project

groundwater 1088 rely had was

in aquifer); (record

Shasta, conclusion

supra,

Cal.App.LEXIS would the record rights 47 the

project Because

groundwater).) EIR's (Laurel 15384(a); Agency "based discussion Heights,

information," proposed CEQA

of water supra, of

project. Guidelines

Cal.3d Santa

Friends (2002) 95

Castaic rights

Lake argument

Water was

Cal.App.4th man";

1386 of the

(water evaluation

on

a straw

"adequacy

of environmental

17s ROP3751-3758, 179 ROP4554, vol. 9.

3793-3794,

vol.

7; 4553,

vol. 9.

48

effects" of water transfer was the real issue).

supra, impacts" adverse the issue 140 of Cal.App.4th a project at 931, were not 934 (EIR

See

also

Gilroy "urban

Citizens, decay

conclusion likely

that

"reasonably EIR "need added).) record,

to cause

significant of

physical

change'" detail

upheld, (emphasis

not include ALT's

an analysis" citations

in greater in the

to facts repeated

evidenced verbatim

administrative court's

including support

excerpts

in the superior Moreover,

Judgment,

MCWD's

position._8 environment in the The

the RDP's groundwater

potential specifically

impacts are potential effects

on the physical thoroughly effects

generally EIR. EIR

TM

and Sections

analyzed on groundwater. than

4.2 and 6.2 describe that the project's except by likely

concludes

will be "less

significant vicinity possibly no active 183

if not beneficial," of the reversing wells well field,

for a cone other t82 area

of depression things EIR not notes

in the immediate exacerbating that there and are

among

seawater

intrusion,

The

within ALT

the maximum admitted

of influence 2009

for the cone submission with

of depression. to the water

in a December impact EIR was

Commission rights which harmful 21100,

that must effect subds.

the

actual

environmental in the

associated likelihood 184 (Pub.

be addressed on existing and

the

of the project's Resources supra, to the Code

groundwater (d); MCWD California brought

users. Oak ALT's

(b)(1)

Foundation, admission

133 Cal.App.4th Court's attention

at 1225-1226.)

180 AA5453-5456, ISl RT2471:6-2478:13, ROP2242-2297, and 4547-4556, 182 ROP2865-2866, _sroundwater 3 ROP2876,

5567-5569, vol.

vol.

22. 2491:21-2494:15, vol. 5; 2963-2984, vol. the 7. likely vol. impacts 5. to RDP's vol. vol. IX, citing 6; 4539-4544

2485:4-2487:8, 4; 2662-2683, 2874-2882 than

vol. 9; see also ROP3788-3959, (concluding significant" 1129, would be "less vol. 5. vol.

or "beneficial"), vol. 3.

184 ROP1101-1102,

2; see also

49

during trial. 185That potential environmental impact was tully discussedin the EIR, in greatdetail] 86 The EIR analysis "clearly and coherently" analyzed potential impacts on the physical environment, including groundwater. (Vineyard
Area before setting "enough Citizens, MCWD forth supra, on 40 Cal. April 4th at 439.) The EIR the in and other record items

5, 2010, ample

including rights

Annexation the SVGB,

Agreement 187 provided that on the the

MCWD's

water

relevant EIR

information" was

in support in its

of MCWD's discussion rights of

decision impacts

Commission's physical impacts. 15384(a); Friends

adequate

environment (Laurel

related

to both water 47 Cal.3d supra, supra,

and potential CEQA

groundwater Guidelines at 346-347;

Heights, Valley Clara

supra, Pass, River,

at 393, citing 190

Cherry of the Santa

Cal.App.4th

95 Cal.App.4th EIR Inadequacy on ALT's instructed The

at 1386.) Claims six other purported to consider failure to

b. ALT's The EIR these state judgment but rendered the

Six Other no

decision court EIR.

inadequacies, six issues

superior a new

MCWD court's

in preparing contravenes the a intent public grounds 21005, at 1387

superior

its decision It is further finds, finds, that

the requirements of the Legislature of reviewing agency has shall taken

of CEQA. that any a previous an specifically court, court action address which finding, without each

or, in the process with

compliance of the alleged (Pub. supra, Resources

this division,

for noncompliance. subd. (courts (c); Friends may decline of the Santa to state their Clara River, on

Code

95 Cal.App.4th

decision

185 RT2473:25-2474:18, AA5517-5520, 186ROP2242-2297, 187 ROP7700-7796, vol. vol. vol.

vol. 22 citing 14.

IX,

citing vol.

ROPll01-1102, vol. 5. 3.

vol.

2; see

also

ROP1129,

4; 2862-2883,

50

an alleged CEQA violation

also Planning for the of water would &

only

if they League,

find

compliance 83 the

with

CEQA); at

see 920

Conservation of

supra, EIR by its

Cal.App.4th Department on the

(remanding Resources, impacts the court

preparation proper lead

a.new

of Water statewide subd. (c)

agency, where

"with ordinarily

expertise section

transfers," address the

under

21005,

all other superior EIR Cir.

alleged court

deficiencies).) was required after to state MCWD's its decision specific on

In addition, each of the seven

alleged

deficiencies 632.) those record

request

for a decision. Should transcript provided any rely sets

_88 (Code this forth

Proc. reach

Court

six evidence

additional

issues,

the

trial ALT of to

substantial expert Js9 opinion The by

in MCWD's evidence MCWD's of the

favor.

no facts,

or other EIR's the

competent and on

in support decision six

of its contentions. upon it is

adequacy record
TM

supported constant 194 and

each

topics: 193

contingency; property failure violation Cal.App.4th

Jg impacts;

pumping;

Agency policy. six

Act; _92 brine 195 The issues Clara superior

impact;

anti-degradation on each (Friends of of these the

court's finds no 95

to state of

a decision CEQA.

implicitly River,

Santa

supra,

at 1387.) if the Court court's reaches the merits and of the CEQA direct it to enter petition, judgment it

Accordingly, should reverse

the superior

judgment

188 RT2497:22-2498:2, _89 RT2463-2497, 190 RT2465-2471, 19t RT2478-2483, x92 RT2483-2488, 193 RT2488-2491, 194 RT2491-2494, 195 RT2494-2496,

vol.

IX. as there cited. cited. cited. cited. cited. cited. cited, fn 155, supra.

vol. IX and ROP vol. IX, and ROP vol. IX, and ROP vol. IX, and ROP vol. IX, and ROP vol. IX, and ROP vol. IX, and ROP

51

in MCWD's favor, becauseMCWD's decision to proceedas a responsible agencycompliedwith CEQA andits decisionto rely on the adequacyof the Commission'sfinal EIR was supportedby substantialevidence.
D. The Superior Court Erred to Augment the Record to trial, MCWD moved to final in Denying MCWD's Motion

Prior include Public court July project record. Cal.App.4th a presumption reaches MCWD's vacate the the

augment project

the

CEQA

record pursuant superior

to to

its own Resources erred

and the Commission's Code section the 21167.6,

approvals, (e)(5). record

subdivision

196 The by

in denying and

motiori

to augment Ruling

the

its Ruling because in the supra, results

of such

12, 2011

its Amended are required Code

of August to be

11, 2011, included of Orange, record Therefore, not

approvals (Pub.

by

statute

CEQA 113 in

Resources Exclusion

21167.6;

County

at 8.)

of statutorily-mandated to MCWD. CEQA (Id. at 13.) but

items

of prejudice merits favor on of the the and

if the Court entirely in

petition, administrative the case

does record,

find

existing remand

this

Court

should

Judgment with record

to the

superior denying

court

for further of

proceedings, the CEQA

instructions and instead

to reverse grant

its order

augmentation

MCWD's

motion

for augmentation.

IV. CONCLUSION The jurisdiction Commission court's CEQA does clear petition the judgment superior to court prejudicially reverse, (Pub. Util. that erred or in determining annul" subd. final, (a).) to decide that it had

"review,

correct, Code it had

conclusive The trial

decisions. error

1759,

in determining

jurisdiction failure

ALT's Not only

resulted below

in an extraordinary punish MCWD

of justice. the

for following

law, but it casts

196 AA989-995,

vol. 4.

52

a cloud of uncertainty over the ongoing effort of numerouspartiespresently before the Commission to secure a stable, environmentally sound water supply for the Monterey Peninsfila, and it requires the unwinding of a complex good faith property transfer between the Armstrong Family and MCWD that became final more than two years ago. MCWD's section 1759 argumentis dispositive of this appeal. However, if the Court wereto reach MCWD's remaining jurisdictional and merits arguments, each of thoseargumentsis similarly dispositive of this appealin MCWD's favor. For all of the foregoing reasons,the Court should reversethe April 17, 2012 Judgment,including the award of costs to ALT, and direct the Monterey County Superior Court to dismissor denythe CEQA petition in its entirety and enterjudgment for,MCWD.

Dated: November 7, 2012

Respectfully submitted,

FRI/_MAN

& SPRING_tTER, LLP

Mark Fogehnan (ff Attorneys for Appellant MARINA COAST WATER DISTRICT

53

CERTIFICATION Pursuant hereby prepare certify to that Rule 8.204(c)(1) on the

RE of

WORD the

COUNT Rules that of Court, was used I to

California program

in reliance this brief

computer words.

this brief,

contains

13,997

Dated:

November

7, 2012

FRIEDMAN

& SPRINGWATER,

LLP

Attorneys MARINA

for Appellant COAST WATER

DISTRICT

PROOF I, Juliet I am over entitled business California the foregoing cause. address 94105. Quiambao, hereby

OF SERVICE declare: to or interested LLP 290, in the within and my as listed above,

the age of 18 years is 33 New

and not a party Street,

I am an employee On November

of Friedman 7, 2012,

& Springwater Suite

Montgomery

San Francisco,

at my place

of business

document: OPENING MARINA BRIEF COAST in the United following OF APPELLANT WATER States DISTRICT Postal Service, practices, as shown for collection in a sealed on the following and

[]

was

placed

for deposit with

mailing

on that date,

ordinary

business addressed

envelope(s), service list. Clerk

postage

fully prepaid,

of the Court Court

Superior

Court

Monterey County Superior For Delivery to the Honorable 1200Aguajito Monterey, Lydia Road CA 93940 Esq. Esq.

M. Villarreal

Michael Stamp, Molly Erickson, Law Offices 479 Pacific Monterey,

Attorneys Stamp One

for

Respondent

of Michael Street, Suite CA 93940

[]

via electronic

mail:

stamp@stamplaw.us erickson@stamplaw.us by causing recipients deliver to be transmitted via the electronic messages were a true copy thereof shown to the above-named above, and no failure to mail addresses

reported

I declare that the foregoing Francisco,

under

penalty

of perjury,

under

the laws

of the State was

of Califomia at San

is true

and correct,

and that this deela_ation "7, 2012. (_AJ_

executed

California

on November

J_uiambao

{00652268.DOC

v 1}