Category: Uncategorized

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California Offshore Wind Gains Momentum with Two Key Milestones in April

In early April there were two major leaps forward in offshore wind development in California. On April 6, 2022, the Bureau of Ocean Energy Management (BOEM), a bureau within the U.S. Interior Department, released a Draft Environmental Assessment for the Morro Bay Wind Energy Area (WEA) off California’s Central Coast. The next day, the California Coastal Commission … Continue Reading

FEDERAL DISTRICT COURT HAS JURISDICTION OVER CORPS’ CEASE AND DESIST LETTER WHEN CONSTITUTIONAL CLAIMS ARE RAISED

In Duarte Nursery, Inc. v. United States Army Corps of Engineers, 2016 U.S. Dist. LEXIS 76037, the Eastern District of California granted the U.S. Army Corps of Engineers’ (“Corps”) motion for summary judgment, finding that Duarte Nursery (“Nursery”) had violated the federal Clean Water Act (“Act”) by moving dirt around its property as part of … Continue Reading

ARMY CORPS’ “APPROVED” JURISDICTIONAL DETERMINATIONS CAN BE CHALLENGED IN FEDERAL COURT

In United States Army Corps of Engineers v. Hawkes, 578 U.S. __ (2016), the U.S. Supreme Court affirmed the Eighth Circuit and held that an approved jurisdictional determination (“JD”) issued under the federal Clean Water Act (“Act”) by the U.S. Army Corps of Engineers’ (“Corps”) is a final agency action that can be challenged in … Continue Reading

NINTH CIRCUIT REJECTS CHALLENGES TO UPDATE OF PRESIDIO TRUST MANAGEMENT PLAN

In Presidio Historical Association v. Presidio Trust, 2016 U.S. App. LEXIS 1287, the Ninth Circuit affirmed the district court’s grant of summary judgement in favor of the Presidio Trust and rejected challenges to a planned “lodge” adjacent to the Presidio’s Main Parade Ground. The Presidio is managed by the Presidio Trust (“Trust”), a federal government … Continue Reading

Court Upholds Monetary Fines Ordered by Trial Court for Violation of Williamson Act Contract

The action in County of Humboldt v. McKee, 2015 Cal. Unpub. LEXIS 4177, began when plaintiffs Humboldt County (County) sued Robert McKee and Buck Mountain Ranch Limited Partnership (collectively McKee). The original litigation (McKee I) involved McKee’s purchase of a property in Humboldt County which he then subdivided and sold. The property was an “agricultural … Continue Reading

Court Agrees with City of San Diego’s Interpretation of its Municipal Code

In Save Our Heritage Organisation v. City of San Diego 2015 Cal. App. LEXIS 462, Plaintiffs challenged the City of San Diego’s (City) approval of a revitalization project that would result in significant impacts to a bridge that has been designated as a National Historic Landmark. The Fourth District Court of Appeal denied all of … Continue Reading

Court Defers to the City of Newport Beach’s Interpretation of its General Plan

In Banning Ranch Conservancy v. City of Newport Beach 2015 Cal. App. LEXIS 436, the Fourth District Court of Appeal upheld an approval by the City of Newport Beach (City) of a development project on 400 acres of undeveloped coastal property with active oilfield operations (Project). The Project consisted of developing one-fourth of the area … Continue Reading

CARB’s Authority to Order Recall and Repair of Heavy-Duty Vehicle Engines Upheld

In Engine Manufacturers Association v. State Air Resources Board, 2014 Cal. App. LEXIS 1075, the California Third District Court of Appeal reversed the trial court’s judgment on the pleadings and upheld the California Air Resources Board’s (CARB) authority to adopt regulations requiring the testing and recall of in-use heavy-duty engines to protect air quality. California … Continue Reading

DC Circuit Applies FOIA Exemption to High-Speed Rail Communications

The United States District Court for the District of Columbia has protected discussions between California’s High Speed Rail Authority (CHSRA) and the Federal Rail Authority (FRA) from a Freedom of Information Act (FOIA) request filed by Judicial Watch. Judicial Watch v. U.S. Dept. of Trans. (D.D.C. 2013) 950 F. Supp.2d 213. The protected discussions concerned … Continue Reading

Court Holds CEQA-Related Calendaring Error by Attorney was “Excusable Neglect” Under Code of Civil Procedure § 473

In Comunidad en Accion v. Los Angeles City Council, 2013 Cal. App. LEXIS 756, the California Court of Appeal for the Second Appellate District affirmed the trial court’s dismissal of plaintiff’s unlawful discrimination claim, while reversing the dismissal of plaintiff’s CEQA claim. The court of appeal reversed the trial court’s dismissal of plaintiff’s CEQA claim … Continue Reading

Court Finds the Mutual Desire to Comply with CEQA does not Create a Common Interest Between Lead Agencies and Developers

In Citizens for Ceres v. Superior Court of Stanislaus County, petitioners sought writ relief from the trial court’s order excluding hundreds of documents from the administrative record based upon the attorney-client privilege and attorney work-product doctrine asserted by the city and the project applicants/developers. The Court of Appeal, Fifth District, ordered the trial court to … Continue Reading

Superior Court Awards Over $600,000 in Costs to Agency for Preparing an Administrative Record

In June 2012, petitioners, three local government agencies (Counties of Butte and Plumas, and Plumas County Flood Control and Water Conservation District), appealed a decision by the Yolo County Superior Court in County of Butte et al. v. Department of Water Resources et al. (2012, No. CV09-1258). The Superior Court had denied their petitions for … Continue Reading

Supreme Court Holds Monetary Exactions Must Have a Nexus and be Roughly Proportional to Impacts of a Proposed Development

For nearly two decades, the U.S. Supreme Court’s decisions in Nollan v. California Coastal Commission, 483 U.S. 825 (1987),and Dolan v. City of Tigard, 512 U.S. 374 (1994), have provided the standard for evaluating the legality of development permit conditions requiring the dedication of interests in real property. Nollan required local governments to show a … Continue Reading

Court Holds California Constitution Prohibits Cuts in Line on the CEQA Litigation Carousel

On June 3, 2013, a superior court judge in Alameda County entered a final order and judgment striking down AB 900 as unconstitutional and enjoined the State Controller from funding activities related to its implementation. AB 900 (codified at Pub. Res. Code § 21185(a)) was enacted in 2011 to streamline suits challenging the adequacy of … Continue Reading

Is a future baseline the baseline of the future? Supreme Court Hears Oral Argument in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552 (Smart Rail), the Second Appellate District upheld the lead agency’s determination that a future 2030 baseline was proper for determining the significance of traffic and air quality impacts caused by a proposed light rail project in Los Angeles. In doing … Continue Reading

Worth Its Salt: NPDES Permit for Desalination Plant Upheld

In Surfrider Foundation v. California Regional Water Quality Control Board (Nov. 30, 2012) 2012 Cal. App. LEXIS 1223, the Fourth District Court of Appeal upheld the trial court’s denial of a petition for writ of mandamus challenging the California Regional Water Quality Control Board’s (Board) issuance of a National Pollutant Discharge Elimination System (NPDES) permit … Continue Reading

Ninth Circuit Finds EPA’s Final Determinations Regarding California’s Revised SIP Arbitrary and Capricious

In Association of Irritated Residents v. United States Environmental Protection Agency (2012) 686 F.3d 668, the Ninth Circuit Court of Appeals found the Environmental Protection Agency’s (EPA) final decision with regard to California’s Revised State Implementation Plan (SIP) under the Clean Air Act (Act) arbitrary and capricious. The court therefore granted the petition and remanded … Continue Reading

Ninth Circuit Remands EPA’s Adoption of Final Rule Approving Revisions to the SIP Without Vacatur to Allow a Power Plant to be Constructed Without Delay

In California Communities Against Toxics v. United States Environmental Protection Agency, (2012) 2012 U.S. App. Lexis 15428, the Ninth Circuit Court of Appeals invalidated the Environmental Protection Agency’s (EPA) approval of a revision to the California State Implementation Plan (SIP) without vacatur in order to permit a power plant to be constructed – but not … Continue Reading

Federal Court Upholds Application of Nationwide Permits for Hydropower Dam in Washington

In Snoqualmie Valley Preservation Alliance v. U.S. Army Corps of Engineers, (2012) ___ F.3d ___, the Ninth Circuit affirmed the Army Corps of Engineers’ (Corps) verification that certain nationwide permits (NWPs), which authorize activities predetermined to have minimal adverse environmental impacts, applied to the reconstruction of a dam used to generate hydroelectric power in Washington. … Continue Reading

Where a Local Government Does Not Endorse Amendments to its Certified Local Coastal Program, the Coastal Commission’s Authority to Adopt such Amendments is Very Narrow

In City of Malibu v. California Coastal Commission (2012) ___ Cal.App.4th ___, the California Court of Appeal, Second District, considered whether California Public Resources Code section 30515, known as the override provision of the Coastal Act, allows a public works agency to apply to the Coastal Commission to override policies and standards in a locality’s … Continue Reading

The Sacketts will have their day in Court to Challenge an EPA Compliance Order

In a unanimous decision, the U.S. Supreme Court overturned the lower courts’ ruling and held that Michael and Chantell Sackett, Petitioners, may bring a civil action under the Administrative Procedure Act (APA) to challenge the Environmental Protection Agency’s (EPA) issuance of an administrative compliance order for alleged violation of Section 309 of the Clean Water … Continue Reading

The Federal Clean Air Act Requires a State Implementation Plan to include Transportation Control Measures to Reduce Vehicle Miles Traveled in Severe Nonattainment Areas even where Plan Demonstrates Overall Mobile Source Emissions will Decrease

In Ass’n of Irritated Residents v. United States EPA (9th Cir. 2012) 686 F.3d 668,  the Ninth Circuit granted a petition challenging federal Environmental Protection Agency’s (EPA) decision to approve the 2003 SIP Revision on each of the three grounds alleged by the Petitioner.  Specifically, Petitioner alleged (1)EPA’s failure to order California to submit a … Continue Reading

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