Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador
 (2019) 33 Cal.App.5th 165

In 2012,
the County of Amador (County) certified a final EIR and approved the Newman Ridge
Project, a quarry and related facilities near Ione (Project). The Ione Valley
Land, Air, and Water Defense Alliance (LAWDA) filed a petition for writ of
mandate, claiming that the approval violated CEQA, the State Mining and Reclamation
Act, and the Planning and Zoning Law. In the first petition, LAWDA raised seven
CEQA issues. The trial court granted the petition, but only insofar as traffic
impacts related to surface street and rail lines were concerned. The trial
court required the County to vacate certification of the EIR and recirculate the
portion of the EIR pertaining to traffic impacts. LAWDA did not attempt to appeal
the trial court’s denial of the remaining six CEQA issues it had raised.

The County,
as instructed by the court, vacated its EIR certification and recirculated the
portion of the EIR pertaining to traffic impacts. After responding to comments,
the County certified the partially recirculated EIR and approved the Project.
In June 2015, the County and project applicants filed an additional return
certifying that they had complied with the writ. The County asked the trial
court to uphold certification of the EIR and approval of the Project, and grant
a motion to discharge the writ. The court granted the motion in August 2015.

LAWDA filed a second petition challenging the County’s certification of the
partially recirculated EIR. LAWDA alleged eight violations of CEQA relating to
water, traffic, biological resources, air, mitigation measures, recirculation
principles, overriding considerations, and responses to public comment. The second petition alleged the
County did not change any portions of the EIR in recirculation, even though the
entire EIR would be affected by changes in the Project area including the
official state drought and approval of significant expansion projects nearby. In
response, the County demurred and argued that many of the issues raised in the
second petition had already been litigated and resolved in the trial court’s
judgment on the first petition. The County claimed that these issues were
barred from being adjudicated in the second petition by the doctrine of res judicata. On that basis, the trial
court denied the writ, and LAWDA appealed.

Relying on Citizens for Open Government v. City of Lodi
(2012) 205 Cal.App.4th 296, the Court held that res judicata bars (1) relitigation of a previously litigated cause
of action adjudicated in another proceeding between the same parties and (2)
issues which could have been litigated, but a party failed to raise. Applying
the doctrine to the facts at hand, the Court agreed with the County that LAWDA
was barred from bringing arguments in the second petition other than those
related to the recirculated traffic impact analysis.

LAWDA argued
in their reply brief that the seven non-traffic issues should be litigated because
“new and different circumstances render[ed] the newly certified EIR factually
different from the prior EIR”. However, because LAWDA failed to include their
counterargument to the application of res judicata in their opening
brief, they forfeited the argument raised in their reply brief. Thus, the Court
declined to consider the merits because “considerations of fairness in argument
demand that the appellant present all of his points in the opening brief.”

The Court concluded
that only those arguments concerning the recirculated traffic impact analysis could
be raised and were not precluded. The Court rejected the remaining challenge to
the traffic impact analysis in an unpublished portion of the opinion, upholding
the trial court’s denial of the petition.