Sweeney v. Cal. Reg'l Water Quality Control Bd.

Decision Date18 February 2021
Docket NumberA153583, A153585
Citation61 Cal.App.5th 1093,275 Cal.Rptr.3d 442
Parties John D. SWEENEY et al., Plaintiffs and Respondents, v. CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SAN FRANCISCO BAY REGION et al., Defendants and Appellants. John D. Sweeney et al., Plaintiffs, Cross-defendants, and Respondents, v. San Francisco Bay Conservation and Development Commission et al., Defendants, Cross-complainants, and Appellants.
CourtCalifornia Court of Appeals Court of Appeals

Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Annadel A. Almendras, Supervising Deputy Attorney General, Matthew G. Bullock, Daniel S. Harris, Deputies Attorney General, Joshua Patashnik for Appellants.

John Briscoe, Lawrence S. Bazel, San Francisco, Briscoe Ivester & Bazel, LLP, for Respondents.

Kerry Shapiro, Martin Patrick Stratte, San Francisco, Jeff Mangels Butler & Mitchell, LLP. Amicus for Respondents.

Siggins, J.* Point Buckler (the Site) is a 39-acre tract located in Suisun Marsh. John Sweeney purchased the island and subsequently transferred ownership to Point Buckler Club, LLC (Club) (Sweeney and the Club are collectively referred to as Respondents). For months, Respondents undertook various unpermitted development projects at the Site, which included the restoration of an exterior levee surrounding it that had been breached in multiple places.

These consolidated appeals concern two administrative orders issued by the Regional Water Quality Control Board, San Francisco Bay Region against Respondents. The first order was a cleanup and abatement order which found Respondents’ development activities were unauthorized and had adverse environmental effects. These included impacts to tidal marshlands, fish migration, and aquatic habitat. The cleanup and abatement order directed Respondents to implement corrective actions to address the effects of their work. The second order imposed administrative civil liabilities and required Respondents to pay approximately $2.8 million in penalties for their violations of environmental laws and regulations.

Respondents successfully challenged both orders in writ proceedings in the superior court. Appellants Regional Water Quality Control Board, San Francisco Bay Region and its Executive Officer, Bruce Wolfe (collectively referred to as Regional Board or Board) contend the trial court made numerous legal and factual errors leading it to improperly set aside the orders. We agree with the Regional Board and reverse both trial court judgments.

BACKGROUND

The Site is located in Suisun Marsh at the south end of Grizzly Bay, a portion of the San Francisco Bay.

In 2011, Sweeney bought the Site, which appears to have been previously operated as a managed wetland for duck hunting. When Sweeney purchased the property, the levee which had circumscribed the island had degraded and breached in multiple places. Following his purchase, Sweeney undertook a number of unpermitted construction and development projects, which included restoring the Site's exterior levee.

In October 2014, Sweeney transferred title to the Point Buckler Club, LLC (Point Buckler Club), for which he was the manager and principal shareholder. He began operating the Site as a private recreational area for kiteboarding. Sweeney also wanted to restore the Site as a duck hunting club.

In November 2014, staff from the San Francisco Bay Conservation and Development Commission (BCDC), a state agency with jurisdiction over the waters of the San Francisco Bay including Suisun Marsh, inspected the Site. BCDC staff notified Sweeney about their concerns with unauthorized work occurring there and identified multiple violations. They observed the levee construction work had removed tidal flow to the Site's interior and dried out tidal marsh areas. Addressing Sweeney's view that the island was a managed wetland and his stated intent to restore the island to that use, they indicated that based on available information, the history of the Site and the recent Site visit, the Site never functioned as a managed wetland and had long reverted to a tidal marsh due to neglect, abandonment, or the forces of nature. Sweeney was directed to stop work and informed that a marsh development permit was required prior to developing the Site. In addition, BCDC staff conveyed that any work that could not be retroactively approved through the permit process would likely need to be removed and the Site restored to tidal marsh. BCDC was handling the matter as an enforcement case, and potential future enforcement against Sweeney could include cease and desist orders and a civil penalty.1

The Regional Board commenced separate enforcement proceedings against Respondents. In July 2015, the Board issued a Notice of Violation for Respondents’ unauthorized filling of federal and state waters in violation of the federal Clean Water Act and the California Water Code. Several months later, the Board issued Cleanup and Abatement Order No. R2-2015-0038 (2015 CAO) to Respondents.

In October 2015, Regional Board staff inspected the Site with representatives from other agencies, including BCDC, the U.S. Environmental Protection Agency, and the U.S. Army Corp of Engineers (Corps). The agencies wanted to better understand the nature and extent of Respondents’ development activities, including the volume of fill placed for construction of the levee, and to understand the impacts of the development on tidal marsh habitat. During this inspection, BCDC staff observed that additional work had been performed since their initial November 2014 inspection. According to Sweeney, worked stopped two months earlier when Respondents first learned of the regulatory agency objections.

In December 2015, Respondents filed a petition for writ of mandate and a complaint for injunctive and declaratory relief challenging the 2015 CAO. The court granted Respondentsrequest to stay the 2015 CAO and enjoined the Board from enforcing the order pending a preliminary injunction hearing. In January 2016, in order to address Sweeney's procedural due process concerns, the Regional Board rescinded the 2015 CAO without prejudice to its ability to issue a new order.

In the ensuing months, state agencies conducted more inspections. In February 2016, the Regional Board conducted a boat survey around the Site to assess conditions and observed additional development on the island since the October 2015 multi-agency inspection. In March 2016, after securing an inspection warrant, the Regional Board conducted another Site inspection. The results of the inspection were compiled into an Inspection Report, which provided a summary of inspection activities, water quality sampling results, staff observations, and photographs.

In May 2016, an expert retained by the Regional Board issued the "Point Buckler Technical Assessment of Current Conditions and Historic Reconstruction Since 1985" (Technical Assessment). The Technical Assessment was a 400-plus-page report based on examinations of conditions at the Site over time that reported Respondents’ development activities and their impacts.

Shortly after release of the Technical Assessment, the Regional Board commenced new formal enforcement proceedings against Respondents. On May 17, 2016, the Board issued a tentative cleanup and abatement order and Administrative Civil Liability Complaint No. R2-2016-1008 (ACL Complaint). The ACL Complaint proposed a $4.6 million penalty for Respondents’ alleged violations.

A hearing on the tentative cleanup and abatement order was held on August 10, 2016. The Board unanimously adopted and issued Cleanup and Abatement Order No. R2-2016-0038 (CAO). The Board made dozens of findings in the CAO regarding Respondents’ unauthorized activities at the Site and the environmental harm resulting from the activities. The Board found Respondents’ activities had adverse impacts on tidal marshlands, estuarine habitat, fish migration, the preservation of rare and endangered species, fish spawning, wildlife habitat, and commercial and sport fishing. The Board concluded Respondents’ activities violated the Water Quality Control Plan for the San Francisco County Basin (Basin Plan), which prohibits the discharge of fill material in quantities sufficient to harm surface waters or to adversely affect or threaten beneficial uses. The Board also found Respondents’ work violated section 301 of the Clean Water Act which prohibits the discharge of pollutants in state and federal waters without a permit, and section 401, which prohibits dredge and fill activities in state and federal waters without a water quality certification. The Board ordered Respondents to submit certain technical reports and to clean up the discharged waste, abate its effects, and take corrective actions that would restore tidal circulation and marsh habitat to the Site.

A hearing was held on the ACL Complaint on December 14, 2016.

The Board issued Administrative Civil Liability Order No. R2-2016-0008 (ACL Order). Respondents were found in violation of the Basin Plan and Clean Water Act and assessed $2.8 million in penalties, rather than $4.6 million as proposed.

Respondents challenged the orders in separate lawsuits. In December 2016, they petitioned under Code of Civil Procedure section 1094.5 for a peremptory writ of mandate to set aside the CAO. In May 2017, Respondents filed a second petition for a peremptory writ of mandate under Code of Civil Procedure section 1094.5 contesting the ACL Order.

In May 2017, the Attorney General's Office, representing the Board, filed a cross-complaint seeking to enforce both orders.

The trial court granted Respondentsmotion to stay the accrual of civil penalties while the appeal was pending. The court also stayed substantive portions of the CAO through judgment until an appeal was filed, or the time to appeal had run.

In October 2017, the trial court heard the challenges to the CAO and ACL...

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