Abatti v. Imperial Irrigation Dist.
| Decision Date | 26 April 2012 |
| Docket Number | No. D058329.,D058329. |
| Citation | 205 Cal.App.4th 650,140 Cal.Rptr.3d 647,2012 Daily Journal D.A.R. 5458,12 Cal. Daily Op. Serv. 4665 |
| Court | California Court of Appeals Court of Appeals |
| Parties | James A. ABATTI et al., Plaintiffs and Appellants, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Respondent. |
OPINION TEXT STARTS HERE
Downey Brand, Sacramento, Gregory Thomas Broderick, Stephen J. Meyer, Kevin M. O'Brien and Courtney S. Covington, for Plaintiffs and Appellants.
Allen Matkins Leck Gamble Mallory & Natsis, San Francisco, Davis Leon Osias, David Duval Cooke, Jeffrey R. Patterson, Mark J. Hattam; and Jeffrey M. Garber, El Centro, for Defendant and Respondent.
The California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) 1 generally requires that a public agency prepare an environmental impact report (EIR) whenever the agency undertakes a project that may have a significant effect on the environment. ( §§ 21100, 21151.) More specifically, “[i]f the agency's initial study of a project produces substantial evidence supporting a fair argument the project may have significant adverse effects, the agency must (assuming the project is not exempt from CEQA) prepare an EIR.” ( Communities For A Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319, 106 Cal.Rptr.3d 502, 226 P.3d 985.) If the agency determines by way of an initial study that the project will not have a significant effect on the environment, the agency may issue a negative declaration to this effect. ( Ibid.; § 21064.)
Section 21166 provides that once an agency prepares an EIR, no EIR shall thereafter be required for the project unless certain statutorily prescribed circumstances occur, such as substantial changes to the project or to the circumstances under which the project is being undertaken. Guidelines, section 15162 ( Cal.Code Regs., tit. 14, § 15162) 2 provides a similar limitation on subsequent environmental review following an agency's adoption of a negative declaration. Guidelines, section 15162 has been held to be a valid regulation that implements the principles contained in section 21166. ( Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479–1481, 277 Cal.Rptr. 481 ( Benton ).)
In 2006, the Imperial Irrigation District (the District) adopted a resolution related to a plan (“Equitable Distribution Plan” or “EDP” or “Project”) for the distribution of water in the event of an actual or potential shortage of water (2006 EDP Resolution). Concurrently with its adoption of the resolution, the District adopted a negative declaration (2006 Negative Declaration) in which it concluded that the EDP would not have a significant effect on the environment. In 2007, the District adopted regulations implementing the EDP (2007 EDP Regulations). In 2008, the District adopted additional regulations (2008 EDP Regulations) that revised the 2007 EDP Regulations. Concurrently with the 2008 EDP Regulations, the District adopted an environmental compliance report that concluded that the 2008 EDP Regulations did not warrant further environmental assessment under CEQA.
Appellants James A. Abatti, Ronald C. Leimgruber, Laura L. Leimgruber, Douglas Westmoreland, Steven Nickus, and Felipe Irigoyen, owners and/or users of agricultural land in Imperial County (appellants), filed a second amended verified petition for writ of mandate/complaint (“petition” or “petition for writ of mandate”) in the trial court in which they maintained that the District failed to comply with CEQA in adopting the 2008 EDP Regulations, among other claims.3 Appellants sought an order directing the District to set aside the 2008 EDP Regulations “until such time as CEQA review has been completed.” The trial court held a hearing on the CEQA claim, took the matter under submission, and later issued an order denying the petition as to appellants' CEQA claim. Applying Benton, the court concluded that there was substantial evidence to support the District's determination that the adoption of the 2008 EDP Regulations did not require additional CEQA review. After the appellants dismissed their remaining non-CEQA claims without prejudice, the court entered a judgment on the CEQA claim in favor of the District.
Appellants appealed from the judgment. While their appeal was pending, we requested that the parties submit supplemental briefs addressing whether this court has appellate jurisdiction in light of the fact that the appellants dismissed several non-CEQA causes of action without prejudice prior to the trial court's entry of judgment on the CEQA claim. Upon consideration of the parties' supplemental briefs and further review of the issue, we conclude that a party may appeal from a judgment rendered on a particular claim in a case, notwithstanding that certain other claims have been dismissed without prejudice, as long as there are no remaining claims pending between the parties and the parties have not entered into a stipulation that would facilitate potential future litigation of the dismissed claims. Since there are no such remaining claims and there is no such stipulation in this case, we conclude that we have appellate jurisdiction over appellants' appeal.
On the merits, appellants claim that the trial court erred in denying their CEQA claim. Appellants maintain that this court should “reject Benton,” a decision that they contend is “fatally flawed,” and hold that the District erred in relying on section 21166 and Guidelines, section 15162 in determining whether preparation of an EIR was required in connection with the adoption of the 2008 EDP Regulations. Appellants also argue that there is substantial evidence to support a “fair argument” that the 2008 EDP Regulations would have a significant effect on the environment, and that preparation of an EIR is thus required. In the alternative, appellants contend that even if section 21166 applies, because the regulations substantially increased the priority preference that industrial users of water would receive over agricultural users in times of a water shortage, the District was required to prepare an EIR prior to adopting the 2008 EDP Regulations. Appellants further maintain that there was a substantial change in the circumstances under which the EDP would be implemented, namely that the District had just approved a water supply contract with the owner of a new power plant that would be a significant new industrial user of water.
We conclude that the Benton court correctly determined that Guidelines, section 15162 is a valid regulation that implements the principles contained in section 21166.4 We further conclude that there is substantial evidence to support the District's determination that it was not required to prepare an EIR prior to adopting the 2008 EDP Regulations. Specifically, we conclude that, contrary to appellants' claim, the 2008 EDP Regulations did not in fact increase the priority preference that industrial users would receive over agricultural users in case of a water shortage. We further conclude that there is substantial evidence to support the District's implicit determination that its approval of a water supply contract with the owner of a new power plant did not constitute a substantial change in the circumstances under which the EDP was being implemented.
Accordingly, we affirm the judgment denying appellants' petition for writ of mandate on appellants' CEQA claim.
In November 2006, the District adopted a resolution related to the Equitable Distribution Plan. The 2006 EDP Resolution explained the background of the EDP, in part, as follows:
“WHEREAS the District is required by State law to adopt rules and regulations for the equitable distribution of water within the District.
“WHEREAS the [District] Board desires to develop and implement a plan for the equitable apportionment of water in the event that in any year, the expected demand for water is likely to exceed the supply expected to be available to the District (referred to herein as a supply/demand imbalance or ‘SDI’ condition).”
With respect to compliance with CEQA, the 2006 EDP Resolution provided in relevant part:
“[B]e it hereby resolved as follows:
The 2006 EDP Resolution described the Equitable Distribution Plan as follows:
“The [District]...
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