Center for Environmental Science etc. v. Dept. of Water Resources CA3 ( 2021 )

Filed 2/1/21 Center for Environmental Science etc. v. Dept. of Water Resources CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CENTER FOR ENVIRONMENTAL SCIENCE, C080967
ACCURACY & RELIABILITY,
(Super. Ct. No.
Plaintiff and Appellant, 34201580002085CUWMGDS)
v.
DEPARTMENT OF WATER RESOURCES et al.,
Defendants and Respondents.
In May 2015, during a time of record drought, defendant California Department of
Water Resources (the Department) began construction of a salinity barrier at the West
False River to inhibit the intrusion of saltwater into a portion of the Sacramento-San
Joaquin River Delta (the Delta). The Department did so pursuant to the declaration of a
state of emergency and the issuance of Executive Order No. B-29-15 (Governor’s Exec.
Order No. B-29-15 (April 1, 2015)) (the EO) by defendant Governor Edmund G. Brown,
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Jr. (the Governor). On the day construction of the salinity barrier began, the plaintiff
Center for Environmental Science, Accuracy & Reliability (CESAR) filed a petition
seeking, among other things, injunctive relief halting the project until the completion of
review pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources
Code, § 21000 et seq.). CESAR then filed a first amended petition and complaint with
two causes of action, seeking mandamus relief and declaratory relief, among other things,
suspending the project, vacating its approval, and requiring the Department to perform
CEQA review of the project. Defendants, the Department and the Governor, demurred
and the trial court sustained the demurrer, concluding, inter alia, that, because the
Governor had suspended CEQA with respect to the project, the Department did not
improperly proceed with the project without attaining CEQA compliance. The trial court
dismissed the action with prejudice and without leave to amend.
CESAR raises a number of contentions on appeal in asserting that the trial court
erred in sustaining the demurrer without leave to amend and dismissing the action.
However, the salinity barrier was removed in November 2015. As a result, we agree with
defendants that the appeal has been rendered moot and no exception to the mootness
doctrine should be applied under the circumstances of this case.
We dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Factual Background
The Delta is formed on the western side of California’s Central Valley at the
confluence of the Sacramento and San Joaquin Rivers, east of where the rivers enter
Suisun Bay, beyond which the waters flow into the San Francisco Bay and from there,
into the Pacific Ocean. (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1151.) The Delta
forms the largest estuary on the West Coast, and it offers hundreds of miles of navigable
waterways, supplies drinking water for many of California’s residents, and provides
irrigation water for agriculture. (Ibid.) A “major factor affecting water quality in the
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Delta is saltwater intrusion. Delta lands, situated at or below sea level, are constantly
subject to ocean tidal action. Salt water entering from San Francisco Bay extends well
into the Delta, and intrusion of the saline tidal waters is checked only by the natural
barrier formed by fresh water flowing out from the Delta. [¶] But as fresh water was
increasingly diverted from the Delta for agricultural, industrial and municipal
development, salinity intrusion intensified, particularly during the dry summer months
and in years of low precipitation and runoff into the river systems.” (United States v.
State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 107.)
On January 17, 2014, the Governor declared a state of emergency based on record
drought conditions. According to the Governor’s proclamation, California had
experienced extremely dry conditions since 2012, and 2014 was projected to be the driest
year on record. California’s water supplies had fallen to “alarming levels,” and
“California’s major river systems, including the Sacramento and San Joaquin rivers,
ha[d] significantly reduced surface water flows.” On April 25, 2014, the Governor
declared a continued state of emergency. The Governor stated that drinking water
supplies were at risk.
On April 1, 2015, the Governor signed the EO at issue here. Among other things,
the EO provided: “The Department shall take actions required to plan and, if necessary,
implement Emergency Drought Salinity Barriers in coordination and consultation with
the Water Board and the Department of Fish and Wildlife at locations within the
Sacramento-San Joaquin delta estuary. These barriers will be designed to conserve water
for use later in the year to meet state and federal Endangered Species Act requirements,
preserve to the extent possible water quality in the Delta, and retain water supply for
essential human health and safety uses in 2015 and in the future. [¶] The Water Board
and the Department of Fish and Wildlife shall immediately consider any necessary
regulatory approvals for the purpose of installation of the Emergency Drought Salinity
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Barriers.” For purposes of its provisions, the EO suspended CEQA and regulations
adopted pursuant thereto as well as specified provisions of the Water Code.
After the issuance of the EO, the Department announced a project to install a rock
dam or salinity barrier across a 750-foot-wide channel of the Delta at the West False
River. The Department approved the project and commenced construction, without
CEQA review, on May 6, 2015.
CESAR’s Petition and Application for Injunctive Relief, the Department’s
Opposition, and the Trial Court’s Initial Ruling
On the same day construction of the salinity barrier began, CESAR, a California
non-profit corporation endeavoring to “bring scientific rigor to regulatory decisions
undertaken pursuant to environmental statutes” and to “ensure consistent application of
these statutes,” filed a verified petition for a writ of mandate, seeking to prevent the
construction of the salinity barrier at West False River. CESAR asserted that the
construction of the barrier would increase salinity of the water in unprotected areas of the
Delta, thereby diminishing the amount of water available for Californians. Additionally,
CESAR asserted that the construction of the barrier would modify or degrade the habitat
of the federally protected delta smelt and would harm the smelt by impairing essential
behavioral patterns.
CESAR asserted that the Department’s approval of the project and its decision to
commence construction constituted final agency action. The petition emphasized that the
Department intended to begin construction on the project on the same day the petition
was filed, which is why CESAR sought an immediate injunction and/or a stay to preserve
the status quo.
The first cause of action seeking a writ of mandate was premised on violation of
CEQA. CESAR asserted that the project would have a significant impact on the
environment. According to CESAR, the Department failed to make the required
threshold determination under CEQA as to whether the project would have a significant
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impact on the environment. Additionally, the Department provided no notice,
opportunity for public comment, or review of the project. Therefore, according to
CESAR, the Department failed to proceed in the manner provided by law.
The second cause of action seeking a writ of mandate was premised on violation
of the federal Endangered Species Act (16 U.S.C. § 1531 et seq.) (Endangered Species
Act) and 16 U.S.C. § 1538(a). CESAR asserted that the project would jeopardize the
existence of the delta smelt, and adversely affect its habitat. According to CESAR, this
would result in the Department “tak[ing]” the delta smelt within the meaning of the
Endangered Species Act and 16 U.S.C. § 1538(a).
CESAR sought alternative and peremptory writs of mandate commanding the
Department to vacate approval of the project, satisfy CEQA requirements, and suspend
all activities related to the project until all CEQA requirements and federal laws
protecting the delta smelt were satisfied. CESAR also sought a stay, a temporary
restraining order, and preliminary and permanent injunctive relief prohibiting the
Department from proceeding with the project until all applicable federal and state law
requirements were satisfied.
On the same date, CESAR filed an ex parte application for a preliminary
injunction and temporary restraining order on largely the same grounds. CESAR
anticipated that the Department would argue that it was exempt from the obligation to
undertake environmental review of the project based on the EO, which purported to
suspend the CEQA requirements for projects implementing Emergency Drought Salinity
Barriers. Among the reasons asserted by CESAR as establishing that reliance on the EO
would be misplaced was its contention that the exemption would violate the public trust
doctrine.1 CESAR asserted that the Delta was part of the public trust. According to
1 Given our resolution of this appeal on mootness grounds, we need not delve into the
public trust doctrine and its purported application here. Suffice it to say that under the
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CESAR, there was no evidence that the Governor or anyone else in the executive branch
considered the impact of the project on public trust resources.
The Department opposed CESAR’s applications. In arguing the balance of harms
strongly favored denying CESAR’s application, the Department asserted that halting the
installation of the emergency salinity barrier would have enormous public health and
public policy consequences. According to the Department, failure to immediately install
the barrier would result in the degradation of water quality rendering it an unacceptable
water source for drinking water, commercial, and industrial uses, and would result in a
risk to human health. The Department further asserted that the high salinity
concentrations which would result in the absence of the barrier would increase the cost of
producing drinking water and result in economic hardships. The Department also noted
that the barrier would be removed in mid-November 2015.
The Department asserted that CESAR was unlikely to prevail on the merits of its
first cause of action, alleging a violation of CEQA, because the Governor exempted the
project from CEQA pursuant to his statutorily granted emergency powers. The
Department asserted that, during a proclaimed state of emergency, the Governor may
suspend any regulatory statute. The Governor accordingly suspended CEQA from
applying to the project. As a result, all of CESAR’s arguments as to alleged
noncompliance with CEQA were meritless because CEQA did not apply.
doctrine, the state “holds all of its navigable waterways and the lands lying beneath them
‘as trustee of a public trust for the benefit of the people.’ ” (Colberg, Inc. v. State of
California ex rel. Dept. of Public Works (1967) 67 Cal.2d 408, 416.) The state has the
“ ‘duty . . . to protect the people’s common heritage of streams, lakes, marshlands and
tidelands, surrendering that right of protection only in rare cases when the abandonment
of that right is consistent with the purposes of the trust.’ ” (San Francisco Baykeeper,
Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202, 234, quoting National Audubon
Society v. Superior Court (1983) 33 Cal.3d 419, 441.) “The state has an affirmative duty
to take the public trust into account in the planning and allocation of water resources, and
to protect public trust uses whenever feasible.” (National Audubon Society, at p. 446, fn.
omitted.)
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The Department asserted that CESAR’s public trust argument was also meritless.
The Department observed that CESAR’s petition did not contain a cause of action for
violation of the public trust. Further, the Department asserted: “[e]ven if [the EO] does
not identify the public trust by name, the entire Order is self-evidently based precisely on
the public trust and on article X, section 2 of the California Constitution.”2 The
Department noted that the public trust doctrine and the California Constitution both
protect the rights of the public to enjoy the waters of the State for navigation, commerce,
fishing, recreation, and consumption, and, relying on Water Code section 106,3 asserted
that consumption is, statutorily, the highest and best use of the State’s waters. The
Department asserted that the project complied with the public trust doctrine because the
State Water Resource Control Board’s water quality certification order required the
Department to comply with state water quality objectives, including those required for
the protection of fish and wildlife. According to the Department, any challenge to its
2 California Constitution, article X, section 2, provides in pertinent part: “It is hereby
declared that because of the conditions prevailing in this State the general welfare
requires that the water resources of the State be put to beneficial use to the fullest extent
of which they are capable, and that the waste or unreasonable use or unreasonable
method of use of water be prevented, and that the conservation of such waters is to be
exercised with a view to the reasonable and beneficial use thereof in the interest of the
people and for the public welfare. The right to water or to the use or flow of water in or
from any natural stream or water course in this State is and shall be limited to such water
as shall be reasonably required for the beneficial use to be served, and such right does not
and shall not extend to the waste or unreasonable use or unreasonable method of use or
unreasonable method of diversion of water . . . . This section shall be self-executing, and
the Legislature may also enact laws in the furtherance of the policy in this section
contained.”
3 Water Code section 106 provides: “It is hereby declared to be the established policy of
this State that the use of water for domestic purposes is the highest use of water and that
the next highest use is for irrigation.”
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compliance with those objectives would constitute a collateral challenge to the State
Water Resource Control Board’s water right and water quality determinations.
Also, with regard to CESAR’s likelihood of success on the merits, the Department
asserted that CESAR could not prevail on its second cause of action, alleging violation of
the Endangered Species Act, because CESAR failed to comply with the citizen suit 60-
day notice requirement. (See 16 U.S.C. § 1540(g)(2)(A).) The Department asserted that
the failure to comply with the 60-day notice requirement was an absolute jurisdictional
bar to maintaining an action or cause of action pursuant to the Endangered Species Act.
In any event, the Department further asserted that it had complied with Endangered
Species Act rules applicable to emergency government actions.
On May 15, 2015, the trial court denied CESAR’s ex parte request for a temporary
restraining order, scheduled a hearing for oral argument on CESAR’s request for a
preliminary injunction, and set forth the briefing schedule. In its oral ruling, the trial
court stated that it was denying CESAR’s request for a temporary restraining order,
finding that, in the cause of action premised on CEQA, CESAR had not shown a
likelihood of success on the merits because the EO suspended CEQA for the project.
With regard to the cause of action premised on the Endangered Species Act, the trial
court stated that CESAR had failed to show compliance with the 60-day notice
requirement. Additionally, the trial court stated that CESAR had failed to make its
showing that a balancing of the harms favored it.
First Amended Petition and Complaint
CESAR filed a first amended petition and verified complaint, which is the
operative complaint. CESAR sought a writ of mandate commanding the Department to
vacate approval of the project, satisfy all CEQA requirements, and suspend operation of
the project until CEQA review had been satisfied; a permanent injunction enjoining the
Department from proceeding with the project or any similar project until it had complied
with CEQA review; and a declaration that the Governor’s suspension of CEQA with
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respect to the project, and the Department’s approval of the project, violated the public
trust doctrine.
In the first cause of action, asserted solely against the Department and seeking a
writ of mandate, CESAR asserted that the project would have a significant impact on the
environment and the Department had not made a threshold CEQA determination that it
would not. CESAR asserted that the project did not qualify for the “ ‘Emergency
Drought Salinity Barrier’ ” exemption from environmental review because the
Department had been aware of the drought and its effect on salinity in the Delta for years,
and there were ways it could have addressed the issue in a manner that fully protected the
public trust values. CESAR asserted that the Department abused its discretion in failing
to proceed in the manner required by law.
In the second cause of action, seeking declaratory relief against the Department
and the Governor, CESAR asserted that the project would harm public trust uses. While
acknowledging that the EO purported to exempt the project from CEQA or public trust
review, CESAR asserted that the EO contained no analysis of the impact the project
would have on public trust uses or consideration of how to avoid or minimize harm
thereto. CESAR asserted that the Department’s approval of the project was similarly
deficient. Therefore, according to CESAR, the EO was null and void to the extent that it
purported to exempt the project from CEQA review and from public trust review, as was
the Department’s approval of the project.
Demurrer
Defendants filed a demurrer to the first amended complaint. Defendants asserted
that the second cause of action did not state facts sufficient to constitute a cause of action
for declaratory relief against either the Department or the Governor because declaratory
relief was not an appropriate means by which to challenge an individual administrative
decision such as the EO or the construction of the salinity barrier. Defendants further
asserted that, under Code of Civil Procedure section 430.10, there was a defect or
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misjoinder of parties because the Governor was not a proper party as he had no obligation
to consider the public trust in issuing the EO. Defendants acknowledged the State does
have an affirmative duty to take the public trust into account in the planning and
allocation of water resources, and to protect the public trust where feasible. However,
according to defendants, the EO did not direct any action that could be deemed the
planning and allocation of water resources, and therefore the Governor was not required
to consider the public trust doctrine in issuing the EO. Defendants asserted the EO
directed the Department to exercise its discretion in determining whether a drought
barrier was necessary, and therefore it did not constitute the planning or allocation of
water resources. In other words, the Governor’s direction to a state agency that it
considers installing a drought barrier did not implicate the public trust doctrine. Any
public trust obligations were to be considered by the Department and the relevant trustee
agencies reviewing and approving of the project. Additionally, the suspension of CEQA
could not be deemed the planning or allocation of water resources.
Defendants further asserted that, to the extent that the Governor was obligated to
consider the public trust, judicially noticeable facts demonstrated that he did. Defendants
asserted that the EO demonstrated that the Governor considered the public trust,
inasmuch as it expressly weighed various public trust considerations. According to
defendants, various directives in the EO “demonstrate that the very purpose of the [EO] is
to preserve public trust values, in part by reducing water used for purposes that do not
further those values.”
Defendants also asserted that the first amended complaint failed to state facts
sufficient to state a cause of action because the Governor had the authority to suspend the
requirement of CEQA review of the project and he did so. Defendants noted that,
pursuant to Government Code section 8571, after declaring a state of emergency, the
Governor may suspend any regulatory statute or the orders, rules, or regulations of any
state agency, where the Governor determines that strict compliance with such statute,
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orders, rules, or regulations would prevent, hinder, or delay the mitigation of the effects
of the emergency. Thus, the Governor’s suspension of CEQA in the EO was authorized
by law. The Governor suspended CEQA relevant to the project, and, accordingly,
CESAR’s claim based on CEQA noncompliance failed to state a cause of action.
The Trial Court’s Tentative Decision4
In a tentative decision, the trial court tentatively sustained defendants’ demurrer.
With regard to the first cause of action, the trial court began: CESAR’s “first cause of
action is based entirely on CEQA, and in its opposition to the demurrer it spends several
pages explaining CEQA’s requirements and the important purposes those requirements
serve. While accurate, these arguments are beside the point, because attached to the
petition is an Executive Order suspending CEQA for the project in question. If CEQA
does not apply, then the entire basis for the first cause of action disappears.” The trial
court noted that the Governor had declared a state of emergency based on the severe
drought conditions, and that, during a state of emergency, the Governor has the authority
to suspend any regulatory statute where the Governor determines that strict compliance
4 Defendants filed an application requesting that we take judicial notice of nine
documents, including the trial court’s tentative decision. This court deferred decision on
the request pending the calendaring and assignment of the panel on this appeal. The
tentative decision was subsequently included in the record on appeal as the supplemental
original superior court file. Accordingly, we need not take judicial notice of that
document. The other documents that were the subject of defendants’ request for judicial
notice are documents filed in Center for Environmental Science, Accuracy & Reliability
v. Cowin, et al., (E.D. Cal. June 8, 2016, No. 1:15-CV-01852 LJO BAM) 2016 U.S. Dist.
Lexis 74896 (the federal action) in the United States District Court for the Eastern
District of California (the Eastern District) and memorandum decisions and the judgment
in that case. We grant defendants’ request and take judicial notice of these documents.
(See Evid. Code, §§ 451, subd. (a) [judicial notice shall be taken of the decisional law of
this state and of the United States], 452, subd. (d)(2) [records of any court of record of the
United States may be the subject of judicial notice], 459, subd. (a) [reviewing court shall
take judicial notice of each matter the trial court was required to notice under section 451
and may take judicial notice of any matter specified in Evid. Code, § 452].)
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with such statute would prevent, hinder, or delay the mitigation of the effects of the
emergency. The trial court concluded that, because CEQA did not apply to the project,
CESAR’s claim that the Department failed to comply with the requirements of CEQA
failed to state facts sufficient to constitute a cause of action, and therefore was subject to
demurrer.
As for the second cause of action, the trial court first concluded that declaratory
relief may be appropriate as to the Governor and the challenge of an executive order.
With regard to the Governor, the trial court acknowledged the cases on which defendants
relied for the proposition that declaratory relief cannot be used to review an
administrative decision, but further stated that the EO was not an administrative decision.
The trial court noted that declaratory relief may be employed to test the constitutionality
of a statute, and, because the EO had the force and effect of law, the trial court stated that
it did not see any “reason why this same line of authority would not also authorize a
declaratory relief action to test the validity of an Executive Order.”
However, the trial court further stated that any challenge to the salinity barrier was
properly directed against the Department, not the Governor. The trial court stated that an
action to enforce the public trust must be brought against the state entity which was
responsible for taking or authorizing the action that allegedly will harm the public trust.
The trial court continued: “Here, [CESAR] claims the dam harms the public trust, and
the state entity that authorized and built the dam is the Department. [CESAR’s]
challenge thus must be brought against the Department, not the Governor. The court thus
sustains the Governor’s demurrer to the second cause of action.”
The trial court further concluded that declaratory relief was not appropriate as to
the Department. The trial court reasoned that CESAR essentially sought to challenge the
validity of an administrative decision, specifically the Department’s decision to approve
and construct the salinity barrier. The trial court stated that the relevant case law
established that an action for declaratory relief was not appropriate to review an
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administrative decision. Therefore, the trial court sustained the demurrer as to the second
cause of action as asserted against the Department.
After stating that it was sustaining the demurrer, the trial court further stated that
CESAR had not requested leave to amend, and that, while leave to amend is generally
granted liberally, the court would not automatically grant leave to amend in the absence
of a request. The court subsequently stated: “If [CESAR] seeks leave to amend, it needs
to explain how it can amend its complaint to state a valid cause of action. Unless it can
do so, the demurrer is granted without leave to amend.”
Adoption of Tentative Decision and Judgment
In a minute order issued after the time scheduled for the hearing, the trial court
stated that no party appeared at the hearing or contacted the court by telephone. The trial
court deemed the matter submitted, adopted its tentative ruling, and incorporated the
tentative decision in the minute order. On October 22, 2015, the trial court entered
judgment dismissing the action with prejudice and without leave to amend.
DISCUSSION
I. The Mootness Doctrine
“ ‘It is well settled that an appellate court will decide only actual controversies.
Consistent therewith, it has been said that an action which originally was based upon a
justiciable controversy cannot be maintained on appeal if the questions raised therein
have become moot by subsequent acts or events . . . . [T]he appellate court cannot render
opinions “ ‘. . . upon moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case before it. It necessarily
follows that when, pending an appeal from the judgment of a lower court, and without
any fault of the defendant, an event occurs which renders it impossible for this court, if it
should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the
court will not proceed to a formal judgment, but will dismiss the appeal.’ ” ’ ” (Giles v.
Horn (2002) 100 Cal.App.4th 206, 226-227.) “Stated differently, moot cases ‘are
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“[t]hose in which an actual controversy did exist but, by the passage of time or a change
in circumstances, ceased to exist.” ’ ” (Parkford Owners for a Better Community v.
County of Placer (2020) 54 Cal.App.5th 714, 722 (Parkford Owners).) Thus, “[a]n
appeal should be dismissed as moot when the occurrence of events renders it impossible
for the appellate court to grant appellant any effective relief.” (Cucamongans United for
Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479
(Cucamongans), citing Eye Dog Foundation v. State Board of Guide Dogs for the Blind
(1967) 67 Cal.2d 536, 541 (Eye Dog Foundation).)
As defendants assert, an appellate court may properly take judicial notice of
matters and/or may take evidence on appeal and, based on those matters or that evidence,
conclude that the appeal has been rendered moot. (Long v. Hultberg (1972) 27
Cal.App.3d 606, 608; Millbrae Assn. for Residential Survival v. City of Millbrae (1968)
262 Cal.App.2d 222, 232; see Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252.)
II. Analysis
1. Mootness
In opposition to CESAR’s initial petition, the Department noted prospectively that
the barrier would be removed in mid-November 2015. Defendants represent to this court
that, in November 2015, the Department caused the salinity barrier that is the subject of
this case to be removed. Therefore, defendants assert that no justiciable controversy
remains, and the appeal should be dismissed as moot.
In its complaint filed in the federal action, dated November 19, 2015, CESAR
averred: “On November 15, 2015, the Project as installed at West False River was
removed.” In a memorandum in support of a motion to dismiss the complaint in the
federal action by the defendant Mark Cowin, Director of the Department, Cowin asserted
that the action was rendered moot by the removal of the salinity barrier. In supplemental
briefing in that case, Cowin stated: “With the March 2016 precipitation, there is now no
likelihood that [the Department] will construct an emergency salinity barrier in 2016. In
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its letter withdrawing its applications for permits relating to construction of such a
barrier, [the Department] told the [United States Army Corps of Engineers] and the State
Water Board directly, ‘Based on recent precipitation events and anticipated runoff in
spring/summer, the [Department] has determined it does not need to proceed with the
proposed 2016 West False River Salinity Barrier Project . . . .” He further represented to
the Eastern District, as defendants do here, that, prior to 2015, the last time a drought
barrier was installed was in 1977. In a letter from the Department to individuals in the
United States Army Corps of Engineers, Sacramento District, and the State Water
Resources Control Board, a representative of the Department withdrew its application for
a permit, stating that it had determined there was no reasonable expectation that climate
conditions in the foreseeable future would warrant installation of a salinity barrier. The
representative did acknowledge that the Department “would like to continue to discuss
with the regulatory agencies the issuance of a programmatic (long-term) permit to install
a salinity barrier at West False River in 2017 and beyond as part of a more
comprehensive multi-year drought contingency planning effort.” The representative
further stated that the Department anticipated “invoking the [Endangered Species Act]
Section 7 consultation process for the programmatic permit.” In a memorandum decision
and order, the Eastern District noted that the salinity barrier had been completely
removed by the Department in November 2015. The court granted the Department’s
motion to dismiss the complaint as moot and denied CESAR’s motion to amend as futile.
The Eastern District entered a judgment in accordance with that order.
Thus, based on the representations made by defendants before this court and by
the Department before the Eastern District, and acceded to by CESAR in the federal
action, the salinity barrier that is the subject of this action no longer exists following its
removal in November 2015.
CESAR did not file a reply brief here to respond to the factual allegation
concerning the removal of the salinity barrier or defendant’s mootness argument.
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We agree with defendants that the removal of the salinity barrier has rendered
CESAR’s appeal moot. As for the potential for “any similar project in the Delta” and the
need for a permanent injunction as alleged in the first cause of action, such a matter is not
ripe for review as it would address a purely hypothetical situation not involving an actual
controversy and our resolution of the matter would constitute an advisory or hypothetical
opinion. (See generally Pacific Legal Foundation v. California Coastal Com. (1982) 33
Cal.3d 158, 170-171 [discussing the ripeness requirement for justiciability].)
Defendants rely on National Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d
741 (Wine Bottlers) in contending the underlying matter is moot. In Wine Bottlers, due to
a record-breaking crop and record-breaking production, the market for dessert wine did
not match mounting surpluses. (Id. at p. 743.) The Director of Agriculture (the Director)
issued a marketing order which, essentially, prohibited as an unfair trade practice the sale
of dessert wine at less than cost. (Id. at p. 744.) The plaintiffs, an association of wine
bottlers and member corporations, sought and obtained injunctive relief. (Id. at pp. 744-
745.) The Director applied for a writ of supersedeas, which the Court of Appeal denied,
but the California Supreme Court granted, and the matter was transferred back to the
Court of Appeal. (Id. at p. 745.) However, by the time the Court of Appeal considered
the appeal, the Director had issued a directive terminating the subject marketing order
and supplemental orders. (Ibid.) The Court of Appeal determined that, under the
circumstances, the appeal was rendered moot. (Id. at pp. 745-746.)
In concluding the matter was moot, the Wine Bottlers court wrote: “It is well
settled that the duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions
upon moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it [citation]. [¶] Since the . . .
order on which this case is based is no longer in effect, a decision of this court obviously
cannot affect it. The parties desire the opinion of this court as to the power of the
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Director to prohibit sales of bulk grape products below actual cost in a subsequent order.
But, an actual controversy does not exist at present and since the injunction did not
specifically enjoin the Director from prohibiting sales below actual cost, an opinion on
this issue would be no more than dicta. [¶] It is believed that the facts here are within the
general rule that the judicial function is the determination of actual controversies between
parties and the court may not concern itself with settling abstract questions of law which
may never be involved in an actual dispute regarding property or other rights. [Citation.]
Although a case may originally present an existing issue (as here), if before decision is
reached, it has, through acts of the parties or other cause, lost that existent character, it is
rendered moot and may not be considered.” (Wine Bottlers, supra, 268 Cal.App.2d at
p. 746.) Our case is similar to Wine Bottlers; the injunctive relief sought here can no
longer afford any form of effective relief.
In the second cause of action, CESAR sought a declaration that the Governor’s
suspension of CEQA with respect to the project, and the Department’s approval of the
project based on the EO, violated the public trust doctrine. With regard to declaratory
relief, Code of Civil Procedure section 1060 requires that the person seeking declaratory
relief be involved in a “case[] of actual controversy relating to the legal rights and duties
of the respective parties . . . .”5 “It would be an idle action on the part of a trial court to
5 Code of Civil Procedure section 1060 reads: “Any person interested under a written
instrument, excluding a will or a trust, or under a contract, or who desires a declaration of
his or her rights or duties with respect to another, or in respect to, in, over or upon
property, or with respect to the location of the natural channel of a watercourse, may, in
cases of actual controversy relating to the legal rights and duties of the respective parties,
bring an original action or cross-complaint in the superior court for a declaration of his or
her rights and duties in the premises, including a determination of any question of
construction or validity arising under the instrument or contract. He or she may ask for a
declaration of rights or duties, either alone or with other relief; and the court may make a
binding declaration of these rights or duties, whether or not further relief is or could be
claimed at the time. The declaration may be either affirmative or negative in form and
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make a declaration of the rights and duties of the parties where the controversy is or has
become moot and no actual controversy exists relating to their legal rights and duties.”
(Pittenger v. Home Savings & Loan Assn. of Los Angeles (1958) 166 Cal.App.2d 32, 36.)
“An action for declaratory relief should be dismissed where it appears that no justiciable
controversy exists.” (Ibid.) This principle applies here.
CESAR’s appeal has been rendered moot. The occurrence of events—the removal
of the salinity barrier—renders it impossible for this court to grant CESAR any effective
relief in connection with its first amended petition and verified complaint. (See generally
Cucamongans, supra, 82 Cal.App.4th at p. 479; Eye Dog Foundation, supra, 67 Cal.2d at
p. 541.)
2. Mootness Exceptions
There are three discretionary exceptions to the mootness doctrine. These
exceptions are: “(1) when the case presents an issue of broad public interest that is likely
to recur [citation]; (2) when there may be a recurrence of the controversy between the
parties [citation]; and (3) when a material question remains for the court’s
determination.” (Cucamongans, supra, 82 Cal.App.4th at pp. 479-480.)
“[I]f a pending case poses an issue of broad public interest that is likely to recur,
the court may exercise an inherent discretion to resolve that issue even though an event
occurring during its pendency would normally render the matter moot.” (In re William
M. (1970) 3 Cal.3d 16, 23.)
Defendants rely on Wine Bottlers, supra, 268 Cal.App.2d 741, where the court
concluded the likelihood of the recurrence of the circumstances which gave rise to the
alleged issue of public interest was speculative, to demonstrate that this exception does
not apply here. The Wine Bottlers court stated: “While recognizing the magnitude and
effect, and the declaration shall have the force of a final judgment. The declaration may
be had before there has been any breach of the obligation in respect to which said
declaration is sought.”
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importance of the wine industry in California, the issuance of the market order here, only
applicable to processors of bulk dessert wine products, is not affected with the same type
of interest to the public as is presented in the cases relied upon by appellant. In the cited
cases there was great certainty that the matters before the courts would be presented again
and the public interest involved was of immediate concern to individuals not directly
involved in the pending proceeding. [¶] In the present case, it is highly speculative
whether the issue will come up again. First, there must be a year where overproduction
produces a chaotic market. Second, the Director must decide to meet the situation by
enacting just such another order which is extremely doubtful now that the features
objectionable to the parties have been presented and litigated to this point. Third, the
required number of processors must assent to the order.” (Id. at p. 747.) Thus, finding
this exception inapplicable, the Court of Appeal reversed the judgment and remanded the
matter, directing the trial court to dismiss the action as moot. (Id. at pp. 747-748.)
The issue presented here—the Department’s approval and installation of a salinity
barrier, without CEQA review, to forestall saltwater intrusion and limit the resulting
impact on drinking water weighed against the impacts of the barrier on the
environment— certainly presents an issue of relevance to the public. However, as in
Wine Bottlers, here, the question of whether the circumstances giving rise to this action
will arise again is highly speculative. While it appears scientifically likely that California
will face severe droughts in the future, it is wholly unknown whether the Department will
seek to prevent greater saltwater intrusion in the Delta and whether it will choose to do so
by the installation of a salinity barrier at a given location. Further, it is wholly unknown
whether the Governor will declare a state of emergency based on severe drought
(although this would seem likely), and, of greater relevance here, whether the Governor
will suspend CEQA for purposes of the installation of one or more salinity barriers. In
short, while the issue presented here is of public interest, it takes a measure of speculation
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to conclude the specific issue here will recur. Consequently, we decline to exercise our
discretion to address the merits under this exception.
We are aware that “[a]ppellate courts have shown a particular willingness to
exercise such discretion when an issue is otherwise likely to evade appellate review due
to its inherently temporary nature.” (In re Kerry K. (2006) 139 Cal.App.4th 1, 4.) This
court has recognized that “[m]any formulations of the public interest exception to the
mootness doctrine include the phrase ‘may evade review’ [citation] or ‘yet evade
review,’ ” [citation] and “[t]hat a controversy may be so short lived as to evade normal
appellate review is a strong reason to decide an issue although it is technically moot.” (In
re Schuster (2019) 42 Cal.App.5th 943, 952.) As noted, this case does address matters of
public interest. Moreover, the temporary nature of the emergency condition here and the
legal questions underlying the Governor’s authority to meet any such emergency
conditions, including the suspension of CEQA and the scope of the public trust doctrine,
would suggest these underlying legal issues will evade normal appellate review in the
future. But here, having failed to reply to defendants’ mootness argument, plaintiffs have
not attempted to persuade this court that the public interest exception applies and thus we
decline to exercise our discretion to apply the exception and reach the merits. (See
Parkford Owners, supra, 54 Cal.App.5th at p. 725 [declining to apply the public interest
exception, noting “having failed to brief the mootness issue in this appeal, [plaintiff] has
not even attempted to persuade this court that any of the issues raised in this appeal are
not moot”].) We arrive at the same conclusion as to the other two mootness exceptions.
III. Conclusion
As we have stated ante, we conclude that CESAR’s appeal has been rendered
moot. We further conclude, in the exercise of our discretion, that none of the three
exceptions to the mootness doctrine should be applied to the circumstances of this case.
Accordingly, we decline to consider the merits of this appeal based on an exception to the
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mootness doctrine. We shall dismiss the appeal as moot. In light of our determination,
we shall not address the parties’ remaining contentions.
DISPOSITION
The appeal is dismissed as moot. Defendants are awarded their costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/
MURRAY, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HOCH, J.
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