In May 2017, the Fifth Appellate District published a decision addressing preclusion, which is rarely a topic in CEQA litigation. On demurrer, the Kern County Superior Court found that a CEQA petition was barred by res judicata in light of a prior judgment entered in Alameda County (the “Alameda Action”). In Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, the Fifth District reversed, and it also addressed the issue of collateral estoppel in the context of a motion to dismiss the appeal.
The underlying dispute involved a CEQA petition asserting that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (DOGGR) had violated CEQA by not conducting any environmental review prior to issuing permits for 214 new oil wells in Kern County. The trial court sustained respondent’s demurrer, on the ground that the petition was barred by res judicata (or, claim preclusion) in light of the Alameda Action, which had involved allegations that DOGGR had engaged in a consistent pattern and practice of issuing permits for oil and gas wells without complying with CEQA.
The Fifth District reversed, finding that res judicata did not apply to bar the petition. As explained in the opinion, res judicata applies to (1) a final judgment that was on the merits, (2) involving the same cause of action, and (3) between the same parties or parties in privity with those parties. The Fifth District found that the judgment in the Alameda Action was not on the merits, as it was based on a finding that the issues raised were no longer justiciable. Specifically, the court found that the issues were either moot or unripe following enactment of Senate Bill No. 4, which addressed the alleged lack of adequate environmental review by DOGGR that was at issue in the Alameda Action. Accordingly, the Fifth District concluded that res judicata did not apply.
In addition, the Fifth District denied a motion to dismiss the appeal on grounds of collateral estoppel (or, issue preclusion), which the court explained as applying (1) after final adjudication (2) of an identical issue (3) actually litigated in and necessary to the prior decision (4) that is asserted against a party to the prior action or a party in privity with a party to the prior action. In the motion, respondent argued that a recent Kern County Superior Court decision in Sierra Club v. Department of Conservation (No. BCV-15-101300-RST) (“Sierra Club”) had determined that the Alameda Action precluded re-litigation of the issue of DOGGR’s approval of oil and gas wells. The Fifth District rejected this argument for two reasons. First, the court found that the issues were not identical, because the cases involved distinct events and conduct by DOGGR. Second, the court found that there was a lack of privity. The Fifth District explained that privity involved a due-process concern requiring that the party to be precluded was adequately represented and should have reasonably expected to be bound by the outcome of the prior adjudication. The court also noted that, when a nonparty to the prior suit asserts collateral estoppel, particular consideration should be given to whether there was an opportunity for appellate review of adverse rulings. Of the three appellants, only one—Sierra Club—had been involved in the Sierra Club action and, as Sierra Club had acknowledged, the trial court’s decision in Sierra Club had not been appealed due to a clerical error in its office. Accordingly, the Fifth District concluded that the other two appellants in the pending action could not have anticipated that Sierra Club’s error in the prior action would have a preclusive effect on their appeal.
Although this decision did not address preclusion in circumstances that are unique to CEQA, it nevertheless provides precedent for preclusion issues that may arise in CEQA litigation.