Post on 17-Feb-2022
Court of Appeal - Third District
W W r I F|LEDCOURT OF APPEAL OF THE STATE OF CALIFORNIA
APPELLATE DISTRICT F eb 24 2Q14
D eena C. Fawcett, Clerk/Administrator
Case No. C074506 By: TVoss, Deputy Clerk
PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS,Plaintiff and Appellant,
v.
EDMUND G* BROWN, Jr., as Governor, etc., et al., Defendants and Respondents;
NP FRESNO LAND ACQUISITIONS LLC,Real Party in Interest and Respondent
Appeal from Sacramento County Superior Court Case No. 34201280001326CUWMGDS
Honorable Michael P., Kenney, Presiding.
RESPONDENT’S BRIEF
Ronald W. Beals, Chief Counsel Jeanne Scherer, Deputy Chief Counsel
David H. McCray, Assistant Chief Counsel (SBN 169113) Brandon S. Walker (SBN 254581)
Department of Transportation, Legal Division 1120 N Street (MS 57), P.O. Box 1438
Sacramento, CA 95812-1438 Telephone: (916) 654-2630 Facsimile: (916) 654-6128
Attorneys for Defendant and Respondent, CALIFORNIA DEPARTMENT OF TRANSPORTATION
TO BE FILED IN THE COURT OF APPEAL APP-008
COURT O F APPEAL, Third APPELLATE DISTRICT, DIVISIONCourt of Appeal Case Number:
C074506ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):
BRANDON S. WALKER, SBN 254581 DEPARTMENT OF TRANSPORTATION 1120 N STREET (MS-57)P.O. BOX 1438
TELEPHONE NO.: 916-654-2630 FAX NO. (Options!): 916-654-6128E-MAIL ADDRESS (Optional):
ATTORNEY FOR (Nam e): DEPARTMENT OF TRANSPORTATION
Superior Court Case Number
34201280001326FOR COURT USE ONL Y
APPELLANT/PETITIONER: Picayune Rancheria of Chukchansi Indians
RESPONDEN T/REAL PARTY IN INTEREST: Edmund G. Brown; NP Fresno Land Acauisitions LLC, et al.
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one): f~ x 1 INITIAL CERTIFICATE "f~ ~ l SU PPLEM ENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the Initial certificate in an appeal when you fjle 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):s t a te o£ California. Department of transportation
2. a. 1 x 1 There iare no interested entities or persons that must be listed in this certificate under rule 8.208. b. I I Interested entities or persons required to be listed under rule 8.208 are a s follows:
Full name of interested entity or person
Nature of interest {Explain):
(D(2)
(3)
(4)
(5)
{ 1 Continued on attachment 2.
The undersigned certifies that the above-listed persons or entitles (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 6.208(e)(2).
Date: 2 / 2 4 / 1 4
Brandon S. Walker.(TYPE OR PRINT NAME) OR ATTORNEY)
P«fl< 1 of 1Form Approved tor Optional Use
JutfidaJ Council ol California APP-008 [Rev. January 1.2009)
CERTIFICATE OF INTERESTED ENTITIES OR PERSONSSol
Cal. Rules o< Court, rules 8.208,8.488
S'
TABLE OF CONTENTS
Page
Table of Contents............................................................................................... i
Table of Authorities ................... ii
I. INTRODUCTION............................ .................... ................ ................ 1
II. STATEMENT OF THE CASE......................................................... .....2
A. Procedural History ................... 2
B. Statement of Facts................................... 3
C. Issue Presented and Standards of Review............................. 3
III. DISCUSSION.................................... 4
A. Caltrans’ demurrer was properly sustained because the petition is irreparably defective on its face............................... 4
B. Appellant cannot maintain its lawsuit against Caltrans because Caltrans is merely a potentially responsible agency that has not taken any final action approving a project...................... 6
1. A responsible agency is not a proper respondent unless it approved a project, which Caltrans has not done.....................6
2. No authority supports Appellant’s position that Caltrans can be enjoined as a potentially responsible agency ..... 8
3. CEQA prescribes the notification of responsible agencies and the ability to sue a responsible agency once a cause of action against that responsible agency becomes ripe ............... 11
IV. CONCLUSION ...... 13
Certificate of Word Count......................................................... v.»................... 14
Proof of Service 15
TABLE OF AUTHORITIES
Cases Pages
Blank v. Kirwan(1985) 39 Cal.3d311,3 1 8 ........................................................................... 4
Bozung v. LAFCO of Ventura County(1975) 13 Cal.3d 263,270 ................ 9
Buller v. Sutter Health(2008) 160 Cal.App.4th 981,985-986........................................................4
California Water Impact Network v. Newhall County Water DisL(2008) 161 Cal.App.4th 1464,1488-1489 ..................................................5
Citizens Task Force On Sohiov. Board o f Harbor Comrs.(1979) 23 Cal.3d 812, 814...................... ,............. 7
Citizens to Preserve the Ojai v. County o f Ventura(1985) 176 Cal.App.3d 421 10
City o f Sacramento v. State Water Resources Control BcL(1992) 2 Cal.App;4th 960,976 12
Dierkes v. City o f Los Angeles(1945) 25 Cal.2d 938, 946............................... 9
Donaldson v. Nat* Marine, Inc.(2005) 35 Cal.4th 503,512 ..................... 5
Evans v. City o f Berkeley(2006) 38 Cal.4th 1 ,6 ....... 4
Friends o f Cuyamaca Valley v. Lake Cuyamaca Recreation & Park DisL(1994) 28 Cal.App.4th 419,429.................................. 7
Heninger v. Board o f Supervisors(1986) 186 Cal.App.3d 601 ................................................................. 9
Honey Baked Hams, Inc* v. Dickens(1995) 37 Cal.App.4tti 421, 427..................................................... 9
Housing Group v. United Nat. Insurance Co.(2001) 90 Cal.App.4th 1106, 1113-1115.................................................. 5
Korean Philadelphia Presbyterian Church v. California Presbytery(2000) 77 Cal.App.4th 1069.................................................................... 12
Riverwatch v. Olivenhdin Mun. Water DisL(2009) 170 Cal.App.4th 1186 ...... .......................................8
San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713 .... ....................... 10
Santisas v. Goodin(1998) 17 Cal.4th 599, 614, fn. 8 ............................................................. 9
Statutes Pages
CEQA Guidelines
Section 15002, subdivision (a).............. 3Section 15091....,..............................................................................................6Section 15121, subdivision (a).......................................................................11Section 15260 et seq..........................................................................................8Section 15300 et seq...................... .............. 8
California Constitution
Article VI, section 10................................ ......1,5
Code of Civil Procedure
Section 430.10, subdivision (a)(e).................... 4Section 430.30, subdivision (a)....................................................................... 4Section 526, subdivision (a)(3)......................................................................12Section 1085......................................................................................................5Section 1086....................................................................................................11
Evidence Code
Section 664.......................................... 12
iii
Public Resources Code
Section 21000.................................................................................... ..............1Section 21065, subdivision (b)(c)............. 10Section 2 1 0 6 9 ..... ............................... ............... 10Section 21080.3............................................... 6,7Section 21080.4.............................................................................................6,8Section 21081.6.................................... ........................................................ 6,8Section 21104 ................................. 6,7Section 21153 ....... 6,7Section 21167................................................................................................. 12Section 21167.3.............................................................................................. 10Section 21167.6.5................................ 10Section 21167.6.5, subdivision ( a ) ............................................ 10Section 21167.6.5, subdivision (b)............. ........................ .........................11Section 21167.6.5, subdivision (c)........................................................... 10,11Section 21168.5.... ..... 5,7,9,12Section 21168.9, subdivision (a)(2)................. 10Section 21177...... ................. vv.v. . ................ 5
Streets and Highway Code
Section 670 i.......................................................................................... 3
Misc.
1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont. Ed. Bar 2nd ed. 2008)... .............. 5,6,7,10
1 California Administrative Mandamus(Cont. Ed.Bar 3d ed. 2003).................................................. 7
I. INTRODUCTION
As part of its efforts to challenge the North Fork Rancheria of Mono
Indians Tribe’s construction of a casino/resort hotel complex, Appellant
Picayune Rancheria of Chukchansi Indians (“Appellant”) seeks an
injunction against the California Department of Transportation (“Caltrans”)
under the California Environmental Quality Act (“CEQA”), Public
Resources Code section 21000 et seq, without articulating a justiciable
cause of action against Caltrans. (J. Appen., p. 63.) After providing
Appellant ample opportunity to cure defects in its pleadings, the superior
court sustained Caltrans’ demurrer without leave to amend, finding that the
petition contained no justiciable cause of action against Caltrans. (J.
Appen., p. 783.)
Appellant is now appealing, in part, the superior court’s order
sustaining Caltrans* demurrer without leave to amend. This appeal, in
relation to Caltrans, centers on, whether or not the court has the jurisdiction
to enjoin Caltrans - a potentially responsible agency.
Although Appellant must demonstrate that there is a justiciable
cause of action against Caltrans, it does not. Instead, Appellant argues,
without supporting authority, that the court nonetheless can and should
enjoin a potentially responsible agency that has not violated CEQA or that
has not taken a final action that can be challenged. Such action by the court
would exceed the California Constitution’s conferral to the courts of
jurisdiction over “causes.” (Cal. Const., art. VI, § 10.)
Since it is undisputed that the petition is defective, the court must
affirm the trial court’s decision to sustain Caltrans’ demurrer.
n . STATEMENT OF THE CASE
A. Procedural History
On November: 30, 2012, Appellant filed a petition for writ of
mandate and comjplaint seeking a writ of mandate ordering the Governor to
set aside a concurrence letter he sent to the Secretary of the Interior in
relation to the casino/hotel resort complex. (J. Appen., p. 77.) The
operative first amended petition for writ of mandate and complaint
(“Petition”) was filed on December -21* 2012. (J. Appen., p. 63.) Despite
failing to articulate any alleged CEQA violation by Caltrans, the Petition
sought an injunction to prevent Caltrans “from approving any activities
related to the siting, construction, or operation of the proposed casino/hotel
resort at the Madera Site, or taking any actions in support thereof, until the
casino/hotel resort has been subject to legally sufficient CEQA review.”
Caltrans demurred on January 15, 2013, because the Petition failed
to state sufficient facts to constitute a cause of action against Caltrans and
the court lacked subject matter jurisdiction over any potential claims
against Caltrans due to their unripeness and the Appellant’s failure to
exhaust its administrative remedies for those unripe claims. (J. Appen., p.
122.) The trial court sustained Caltrans’ demurrer in its ruling on May 29,
2013, finding: “At most, the Petition and complaint alleges that [Caltrans]
may intend to take some action in the future that would be subject to CEQA
. . . . Any claims petitioner based on these anticipated future actions are not
yet ripe, as the Petition and complaint does not allege that any such action
has occurred.” (J. Appen., p. 783.) The court then formally entered its
order sustaining the demurrer without leave to amend and dismissing the
action on June 6,2013. (J. Appen., p. 787.)
Appellant filed a Notice of Appeal on August 5, 2013, asking this
Court to.reverse the trial court’s judgment. (J. Appen., p. 901.)
2
B. Statement of Facts
Caltrans “is responsible for approving alterations or improvements
to California’s highways, including State Route 99.” (J, Appen., p. 65.)
Caltrans’ approval authority is carried out through the encroachment permit
process outlined in Streets and Highways Code section 670 et seq.
The Petition alleges that “[t]he North Fork Tribe seeks to develop a
casino/hotel resort on approximately 305 acres of presently off-reservation
land in Madera County, California (the ‘Madera Site’).” (I. Appen., p. 67.)
As part of the approval process for this resort, the United States Department
of the Interior finalized an Environmental Impact Statement (“EIS”) under
the National Environmental Policy Act. (Id. at p. 70.) In relevant part, the
EIS found that “[t]raffic generated by the casino/hotel resort complex could
cause unacceptable levels of service with respect to five freeway segments,
one roadway segment, and ten intersections.” (Ibid.) To address those
traffic impacts, the EIS committed the North Fork Tribe to “place funds ‘in
an escrow account for use by the governmental entity with jurisdiction over
the road to be improved so that the entity may design ..., obtain
approval/permits for, and construct the recommended road
improvement....’” (Ibid.) This is the extent of the alleged facts relevant to
Caltrans contained in the Petition.
C. Issue Presented and Standards of Review
This appeal presents the following issue in relation to Caltrans:
A court does not have the power nor the authority to enjoin a party unless sufficient facts are pled that constitute a cause of action, over which the court has the subject matter jurisdiction to adjudicate. Appellant seeks an injunction against Caltrans without articulating a justiciable cause of action against it. Can the court enjoin Caltrans?
3
Long-settled rules guide the review of a demurrer. (Blank v. Kirwan
(1985)39 Cal.3d 311, 318 [216 Cal.Rptr. 718].) The court treats the
demurrer as admitting all material facts properly pleaded* but not
contentions, deductions or conclusions of fact or law. (Evans v. City o f
Berkeley (2006) 38 Gal.4th 1, 6 [40 Cal.Rptr.3d 205]; Buller v. Sutter
Health (2008) 160 Cal.App.4th 981, 985-986 [74 Cal.Rptr.3d 47].) The
court also considers matters which may be judicially noticed. (Blank v.
Kirwan, supra, 39 Cal.3d at p. 318.) When the demurrer is sustained
without leave to amend, the reviewing court, “decides whether there is a
reasonable possibility that the defect can be cured by amendment: If it can
be, the trial court has abused its discretion and [the reviewing court]
reverse[s]; if not, there has been no abuse of discretion and [the court]
affirm[s]. [Citations.] The burden of proving such reasonable possibility is
squarely on the plaintiff. [Citation.]” (Ibid.)
III. DISCUSSION
A» Caltrans’ demurrer was properly sustained because the petition is irreparably defective on its face.
A demurrer may be made whenever a ground for objection appears
on the face of the pleading. (Code Civ. Proc., § 430.30, subd. (a).) The
lack of subject matter jurisdiction and the failure to state facts sufficient to
constitute a cause of action are appropriate grounds for objection. (Code
Civ. Proc., § 430.10, subds. (a) & (e).) Caltrans’ demurrer objected to the
Petition’s inclusion of Caltrans as a defendant and respondent on these
grounds. Specifically, the Petition does not allege that Caltrans is
4
proposing to carry out a highway project, reviewing an encroachment
permit application, or considering any other action that would constitute a
project under CEQA, Nor does the Petition allege that Caltrans took a Final
action on any project that would constitute project approval or that the
Appellant has exhausted its administrative remedies in relation to any final
action by Caltrans.
Similarly, the Opening Brief does not contend that Caltrans violated
CEQA, that Caltrans has taken a final action that can be challenged, or that
Appellant exhausted its administrative remedies in relation to an action by
Caltrans. Such allegations are necessary to challenge Caltrans* objections
and provide the court with the jurisdiction to adjudicate a matter involving
Caltrans. (Cal. Const., art. VI, § 10 (conferring original jurisdiction upon
superior courts in mandamus or prohibition proceedings and all other
causes); Code of Civ. Proc., § 1085 (authorizing the issuance of a writ to
compel the performance of an act required by law); Pub. Resources Code,
§ 21168.5 (authorizing an action or proceeding to attack, review, set aside,
void or annul a determination, finding, or a decision of a public agency on
the grounds of noncompliance with CEQA); Pub. Resources Code, § 21177
(limiting the ability to bring a CEQA lawsuit to only those who presented
information to the respondent agency); California Water Impact Network v.
Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1488-1489 [75
Cal.Rptr.3d 393, 410]; Donaldson v. Nat. Marine, Inc. (2005) 35 Cal.4th
503, 512 [25 Cal.Rptr.3d 584]; Housing Group v. United Nat. Insurance
Co. (2001) 90 Cal.App.4th 1106, 1113-1115 [109 Cal.Rptr.2d 497]
(discussing the existence of subject matter jurisdiction by referring to a
“justiciable controversy”) 2 Kostka & Zischke, Practice Under the Cal.
Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008) § 23.110, pp. 1252-
1253.)
5
Since the demurrer’s grounds for objection are not disputed, they
will not be belabored in this brief. But these objections show that the
petition is facially defective as to any claims against Caltrans, the courts do
not have jurisdiction over a matter involving Caltrans, and the trial court’s
decision sustaining Caltrans’ demurrer should be affirmed.
B. Appellant cannot maintain its lawsuit against Caltrans because Caltrans is merely a potentially responsible agency that has not taken any final action approving a project
Instead of demonstrating how it can cure the defects in its petition,
Appellant asserts that the requirement that a petition state a justiciable
cause of action is misplaced because of an alleged misunderstanding of
Caltrans’ role. (Opening Brief, p. 420 Caltrans’ role, given the alleged
facts, is as a potentially responsible agency.1 It is unclear what
misunderstanding exists in relation to this role, but any misunderstanding
Appellant may have does not justify ignoring jurisdictional and pleading
requirements.
1. A responsible agency is not a proper respondent unless it approved a project, which Caltrans has not done.
Responsible agencies have two different sets of duties. First, they
timely respond to lead agency requests for information or comments at
various stages of the CEQA process. (1 Kostka & Zischke, Practice Under
the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008) § 3.19,
pp. 123-124.) The second set of duties revolves around the responsible
agency’s role in approving or acting upon the project. (Ibid.) Any attempt
1 To date, Caltrans has not been asked to approve any portion of the casiho/hotel complex, nor has; a CEQA document been prepared, consultation requested, notice of the determination that environmental impact report provided, or a public comment period been initiated by a lead agency that may trigger a duty by Caltrans as a responsible agency. (See Pub. Resources Code, §§ 21080.3, 21080.4,21081.6, 21104 & 21153.)
6
to maintain a CEQA challenge against Caltrans for inaction as to the first
set of duties contradicts the law, particularly here where none of the duties
of a responsible agency were triggered.
The respondent in an administrative mandamus proceeding is “the
person or entity responsible for the final-decision under review. The statute
or ordinance setting forth the authority for the administrative proceeding
will generally identify the party with responsibility for the final
administrative decision or order ” (1 California Administrative Mandamus
(Cont.Ed.Bar 3d ed. 2003) § 8.1, p. 318.) Public Resources Code section
21168.5 authorizes actions or proceedings “to attack, review, set aside, void
or annul a determination, finding, or decision of a public agency . . . ”
Therefore, a responsible agency is not a proper respondent in an action
challenging a lead agency’s decision and compliance with CEQA.
(Citizens Task Force On Sohio v. Board o f Harbor Comrs, (1979) 23
Cal.3d 8i2, 814 [153 Cal.Rptr. 584] (reversing the joinder of a responsible
agency as an indispensible party even though the challenged document was
jointly prepared by the lead agency and the responsible agency); Friends o f
Cuyamaca Valley v. Lake Cuyamaca Recreation & Park Dist. (1994) 28
Cai.App.4th 419, 429 [33 Cal.Rptr.2d 635] (affirming the denial of the
petition brought against the responsible agency because CEQA compliance
is the responsibility of the lead agency).) The Petition and Appellant’s
arguments are in direct conflict with these legal tenets.
Additionally, until a lead agency initiates the environmental process,
Caltrans has no duty to take any action. (See 1 Kostka & Zischke, Practice
Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008)
§3.20, pp. 124-125 (summarizing a responsible agency’s role to react to
various actions taken by the lead agency).) Public Resources Code sections
21080.3, 21104 and 21153 each require the lead agency to consult with and
receive comments from all responsible agencies. None of these statutes
7
impose, ail affirmative duty on, responsible agencies. Public Resources
Code section 21080.4 states that - “[u]pon receipt of the notice” sent by the
lead agency - a responsible agency shall “specify to the lead agency the
scope and content of the environmental information that is germane to the
statutory responsibilities of that responsible agency [that] shall be included
in the environmental impact report.” If no notice is sent and received,
however, then there is no duty to provide the required information. Public
Resources Code section 21081.6 requires a responsible agency to provide
comments once a draft environmental impact report or negative declaration
has been released for public comment only if the responsible agency
identifies significant effects on the environment. But again as in this case,
if a draft environmental document has not been prepared and released for
comment, then, of course, the responsible agency has no duty or ability to
provide comments on that non-existent document.
It is possible for a responsible agency to take final agency actions
that approve portions of a project being analyzed or approved by a lead
agency, and thus can be named as a respondent. (See Riverwatch v.
Olivenhain Miin* Water Dist (2009) 170 Cal.App.4th 1186 [88 Cal.Rptr.3d
625].) But again, neither the Petition nor the Appellant’s Opening Brief
alleges facts that demonstrate that Caltrans took any such final actions.
And if no final action was taken, then Appellant’s administrative remedies
have not been exhausted. Therefore, the demurrer was properly sustained
and this court should affirm that decision.
2. No authority supports Appellant*s position that Caltrans can be: enjoined as a potentially responsible agency
Although Appellant acknowledges that Caltrans has not taken any
action that can be challenged, Appellant still asserts that Caltrans - as a
potentially responsible agency - can be enjoined. (Opening Brief, p. 43.)
The authority Appellant cites does not support this position.
8
In Heninger, the respondent county was the lead agency, the
respondent board of supervisors was the decision-making body of the lead
agency, and the other respondents were officials and offices of the lead
agency that would implement the lead agency’s decision. (See Heninger v.
Board o f Supervisors (1986) 186 Cal.App.3d. 601 [231 Cal.Rptr. 11].) A
lead agency is an appropriate respondent when the environmental analysis
is being challenged. (Pub. Resources Code, § 21168.5.) A decision
making body is also an appropriate respondent when its decision is being
challenged. (Id.) Therefore, the county and the board of supervisors were
appropriate respondents in Heninger. But Heninger does not address the
propriety of naming the other county officials and offices as respondents.
Therefore, the case has no precedential value and provides no additional
guidance on this issue. (Honey Baked Hams, Inc. v. Dickens (1995) 37
Cal.App.4th 421, 427 [43 Cal.Rptr.2d 595], disapproved on a different
ground in Santisas v. Goodin (1998) 17 Cal.4th 599, 614, fn. 8 [71
Cal.Rptr.2d 830].) Other authority, however, indicates that those officials
and offices were not properly named as respondents. (See Dierkes v. City
o f Los Angeles (1945) 25 Cal.2d 938, 946 [156 P.2d 741] (holding that the
city officials who are not members of the city’s board of pension
commissioners, where the board is given exclusive control of the pension
fund in question, are not proper defendants).)
Although the portion of Bozung cited by Appellant is dicta, in that
case the City of Camarillo had petitioned the Local Agency Formation
Commission (LAFCO) to approve the city’s proposed annexation of land,
which was the subject of the CEQA challenge. (Bozung v. LAFCO o f
Ventura County (1975) 13 Cal.3d 263, 270 [118 Cal.Rptr. 249].) The city
then adopted an ordinance annexing the property after LAFCO approved
the proposal. (Ibid.) Since the city had taken a final action, it was a proper
respondent under Public Resources Code section 21168.5. Additionally,
9
the city proposed the annexation approved by the LAFCO and could be
considered a real party in interest, which is required to be named in a
CEQA challenge and is: explicitly subject to a court’s injunctive authority.
(See Pub; Resources Code, § 21167.6.5, subd. (a) & 21168.9, subd. (a)(2).)
The last two cases are those involving injunctions againstreal parties
in interest. (San Joaquin Raptor/Wildlife Rescue Center v. County o f
Stanislaus (1994) 27 Cal.App.4th 713 [32 Cal.Rptr.2d 704]; Citizens to
Preserve the Ojai v. County o f Ventura (1985) 176 Cal.App.3d 421 [222
Cal.Rptr. 247].) But a potentially responsible agency is not a real party in
interest.
A responsible agency carries out or approves a project. (Pub.
Resources Code, § 21069.) Under Public Resources Code section
21167.6.5, subdivision (c), a petitioner provides the responsible agencies
with notice of the CEQA proceeding, and the responsible agencies’ duties
are governed by Public Resources Code section 21167.3. Nothing in
CEQA contemplates a judicial action or the availability of injunctive relief
against a responsible agency that has not taken any final action. (See 2
Kostka & Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2d ed. 2008) §23.15, pp. 1151-1152.)
In comparison, under CEQA the real party in interest is the person
that is either undertaking the action supported by a public agency or the
recipient of a lease, permit, license, certificate, or other entitlement from a
public agency. (Pub. Resources Code, §§ 21167.6.5, subd. (a) & 21065,
subds. (b) & (c)0 A petitioner is required to name the real party in interest
in the petition and serve the real party in interest with the petition. (Pub.
Resources Code, § 21167.6.5.) Courts are explicitly authorized to enjoin a
real party in interest. (Pub. Resources Code, § 21168.9, subd. (a)(2).)
Here, it is not alleged that Caltrans is a project proponent or that
Caltrans has taken any final agency action associated with the casino/hotel
10
complex. Also, Appellant does not allege that the Governor was officiating
as a Caltrans decision-maker when he issued his concurrence letter, that the
concurrence letter mandated that Caltrans take any action, or that Caltrans
will be implementing anything associated with the casino/hotel complex or
the Governor’s decision without exercising its independent discretion and
complying with CEQA. Therefore, Caltrans is not a proper respondent.
Additionally, Appellant does not allege that Caltrans is undertaking any
action; has received any lease, permit, license, certificate, or other
entitlement that is at issue in this case; or has any other interest that will be
directly affected by the proceeding. Therefore, Caltrans cannot be named
as a real party in interest.
3. CEQA prescribes the notification o f responsible agencies and the ability to sue a responsible agency once a cause o f action against that responsible agency becomes ripe.
Lastly, a process already exists whereby potentially responsible
agencies are notified of pending CEQA actions, ensures the jurisdictional
and pleading requirements are not trampled upon, and the potentially
responsible agency may still be held accountable if it takes any action in
violation of CEQA. Thus, a writ cannot be issued against Caltrans because
there is a plain, speedy, and adequate remedy in the ordinary course of the
law - when and if a cause of action becomes ripe. (Code Civ. Proc.,
§ 1086.)
CEQA requires a respondent public agency to provide any petitioner
with a list of all responsible agencies and any public agencies having
jurisdiction over a natural resource affected by the project that is the subject
of litigation. (Pub. Resources Code, § 21167.6.5, subd. (b).) Then the
petitioner must provide those responsible agencies and agencies with
jurisdiction over resources with notice of the lawsuit. (Pub. Resources
Code, § 21167.6.5, subd.(c).) Arid if a responsible agency takes final action
11
on a project without complying with CEQA, then, and only then, can a
CEQA lawsuit be brought against that responsible agency. (Pub. Resources
Code, §§ 21167 & 21168.5 (authorizing actions or proceedings to attack,
review, set aside, void, or annul a determination, finding, act, or decision of
a public agency.)
If and when Caltrans is asked to approve any highway improvements
associated with the casino/hotel complex, Caltrans can and will consider
the whole of the action mid analyze the direct, indirect, and cumulative
impacts of that action in compliance with CEQA. The courts are to
presume that an agency will fulfill its legal obligations. (SeeEvid. Code, §
664; City o f Sacramento v. State Water Resources Control Bd. (1992) 2
Cal.App.4th 960, 976 [3 Cal.Rptr.2d 643].) And there are no alleged facts
that suggest that Caltrans “is doing, or threatens, or is about to do . . . some
act . . in relation to the casino/hotel complex that would violate CEQA.
(See Civ. Proc. Code, § 526, subd. (a)(3); Korean Philadelphia
Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069,
[92 Cal.Rptr.2d- 275] (holding that an injunction cannot exist in a vacuum
based oil a party’s fears of what may happen sometime in the future, but
actual evidence must support that there is a realistic prospect that the party
enjoined intends to engage in the prohibited activity).)
IV. CONCLUSION
The Petition fails to allege facts demonstrating that a project under
Caltrans’ jurisdiction exists and that Caltrans approved that project.
Further, Appellant’s efforts to include Caltrans in this CEQA challenge by
alleging facts about what Caltrans may do in the future raise unripe, non-
justiciable claims. As there are ho facts available to the Appellant that
would support a justiciable CEQA cause of action against Caltrans, the trial
court’s sustaining of Caltrans* demurrer should be affirmed.
DATED: February 24, 2014
Respectfully Submitted,
RONALD W. BEALS, Chief Counsel JEANNE SCHERER, Deputy Chief Counsel DAVID H. McCRAY, Assistant Chief Counsel BRANDON S. WALKER, Deputy Attorney
Attorneys for Defendant and Respondent California Department of Transportation
.NDON S.-
13
CERTIFICATE OF COMPLIANCE [CRC 8.204(c)(1)]
Pursuant to California Rule of Court, rule 8.204(c)(1), I certify that
Respondents’ Brief contains 3562 words and is printed in a . 13-point
typeface.
DATED: February 24,2014Respectfully Submitted,
RONALD W. BEALS, Chief Counsel JEANNE SCHERER, Deputy Chief Counsel DAVID H. McCRAY, Assistant Chief Counsel BRANDON S. WALKER, Deputy Attorney
Attorneys for Defendant and Respondent
14
PROOF OF SERVICE
COURT OF APPEAL, STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
Case No. C074506
PICAYUNE RANCHERIA OFCHUKCHANSI INDIANS,V.EDMUND G. BROWN, Jr., et al.
I, the undersigned, declare that:
I am at least 18 years of age and not a party to the case; I am
employed in the County of Sacramento, California, where the mailing
occurs; and, my business address is 1120 N Street, MS-57, Sacramento, CA
95814.
I further declare that I aril readily familiar with the business' practice
for collection and processing of correspondence for mailing with the United
States Postal Service; and that the correspondence shall be deposited with
the United States Postal Service this same day in the ordinary course of
business.
I served the foregoing RESPONDENT’S BRIEF, on February /^
2014, by sealing each envelope and placing it with for collection and
mailing with the United States Postal Service, on this same day, at my
business address shown above, following ordinary business practices,
addressed to:
See list
Court of Appeal,Third Appellate District 900 N. Street Sacramento, CA 95814 (Original + 4 copies)
Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 (4 copies)
Superior Court of California County of Sacramento 720 Ninth Street Sacramento, CA 95814-1398 (1 copy)
AKIN GUMP STRAUSS HAUER & FELD LLP Carlyle W. Hall Jr.Andrew Oelz2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3012 Telephone: (310) 229-1000 Facsimile: (310)229-1001 cwhall@akingump.com aoelz@akingump.com
Office of Attorney General Deborah Barnes 13001 Street Sacramento, CA 95814 Telephone: (916) 322-9294 Facsimile: (916) 327-2319 Deborah.bames @ doi.ca. gov
Office of Attorney General Timothy Muscat William P. Tomgren 13001 Street Sacramento, CA 95814 Telephone: (916)322-5184 Facsimile: (916)327-2319 Timothy; muscat @ doi. ca. gov Williarri.tomgren@doi.ca.gov
Attorneys for Petitioners and PlaintiffPICAYUNE RANCHERIA OF CHUKCHANSI INDIANS
Attorney for Respondent and DefendantCALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Attorneys for Respondent and DefendantEDMUND G. BROWN, JR.
16
County o f Madera Douglas W. Nelson Robert D. Gabriele
Attorneys for Respondent and DefendantCOUNTY OF MADERA
200 West Fourth Street Madera, CA 93637 Telephone: (559) 675-7700 dnelson@madera-countv.com Robert, gabriele@madera-countv.com
City of Madera Attorney for Respondent andJ. Brent Richardson Defendant205 West Fourth Street CITY OF MADERAMadera, CA 93637Telephone: (559) 661-^5405brichardson@citvofmadera.com
COX, CASTLE & NICHOLSON LLP Attorney for Real Party in
Telephone: (415) 392-4200 Facsimile: (415) 392-4250 asabey@coxcastle.com
I declare under penalty of perjury and the laws of the State of
California that the foregoing is true and correct. Executed on Z.
Andrew B. Sabey555 California Street, 10 FloorSan Francisco, CA 94104-1513
InterestNP FRESNO LAND ACQUISITIONS LLC
in Sacramento, California.
17
AMENDED PROOF OF SERVICE
COURT OF APPEAL, STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
Case No. C074506
PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS, v.EDMUND G. BROWN, Jr., et al,
I, the undersigned, declare that:
I am at least 18 years of age and not a party to the case; I am employed in the
County of Sacramento, California, where the mailing occurs; and, my business address is
1120N Street, MS-57, Sacramento, CA 95814.
I further declare that I am readily familiar with the business' practice for collection
and processing of correspondence for mailing with the United States Postal Service; and
that the correspondence shall be deposited with the United States Postal Service this same
day in the ordinary course of business.
I served the foregoing RESPONDENT’S BRIEF, on February 24, 2014, by
sealing each envelope and placing it with for collection and mailing with the United
States Postal Service, on this same day, at my business address shown above, following
ordinary business practices, addressed to:
See list
Court of Appeal, *Corrected AddressThird Appellate District914 Capitol MallSacramento, CA 95814(Original + 4 copies)
Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 (4 copies)
Superior Court of California County of Sacramento 720 Ninth Street Sacramento, CA 95814-1398 (1 copy)
AKIN GUMP STRAUSSHAUER & FELD LLPCarlyle W. Hall Jr.Andrew Oelz2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3012 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 cwhall@akingurnp.com aoelz@akingump.corh
Office of Attorney General Deborah Barnes 13001 Street Sacramento, CA 95814 Telephone: (916) 322-9294 Facsimile: (91^) 327-2319 Deborah.bames@doi.ca.gov
Office of Attorney General Timothy Muscat William P. Torngren 13001 Street Sacramento, CA 95814 Telephone: (916) 322-5184 Facsimile: (916) 327-2319 Timothv.muscat@doi.ca.gov William.torngren@doi.ca.gov
Attorneys for Petitioners and Plaintiff PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS
Attorney for Respondent and Defendant CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Attorneys for Respondent and Defendant EDMUND G. BROWN, JR.
County of Madera Douglas W. Nelson
Attorneys for Respondent and DefendantCOUNTY OF MADERA
Robert D. Gabriele200 West Fourth StreetMadera, CA 93637Telephone: (559) 675-7700dnelson@madera-countv.comRobert.gabriele@madera-county.com
City of Madera Attorney for Respondent and DefendantJ. Brent Richardson CITY OF MADERA205 West Fourth StreetMadera, CA 93637Telephone: (559) 661-5405brichardson@citvofmadera.com
COX, CASTLE &NICHOLSON LLP Attorney for Real Party in InterestAndrew B. Sabey 555 California Street, 10 Floor San Francisco^ CA 94104-1513 Telephone: (415) 392-4200 Facsimile: (415) 392-4250 asabey@coxcastle.coni
NP FRESNO LAND ACQUISITIONS LLC
I declare under penalty of perjury and the laws of the State of California that the
foregoing is true and correct. Executed on February 24, 2014, in Sacramento, California.