C090943
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 2/10/22
NOT TO BE PUBLISHED
(Super. Ct. No. 34-2017-80002655-CU-WM-GDS)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellants Monterey Coastkeeper (Coastkeeper) and others are dissatisfied with how the respondent State Water Resources Control Board (State Board) and the regional water boards, including respondent Central Coast Regional Water Quality Control Board (Central Coast Board), control water pollution resulting from agricultural runoff through the permitting process. Appellants filed an action seeking, among other things a declaratory judgment and writ of traditional mandamus regarding the water permits governed under
Appellants appeal from the trial court’s sustaining of demurrer without leave to amend of their third and fourth causes of action. They contend the trial court erred regarding both the NPS Policy and public trust doctrine, and erred in denying them leave to amend the complaint.
LEGAL BACKGROUND
The Porter-Cologne Act is the principal law governing water quality regulation in California. Enacted in 1969, the Porter-Cologne Act establishes as state policy that “the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state.” (
The Legislature designated the State Board and nine regional water quality control boards (regional water boards) as the agencies with primary responsibility for the regulation of water quality under the Porter-Cologne Act. (
The regional water boards are also responsible for issuing waste discharge permits. (
The Porter-Cologne Act also allows regional water board decisions on waste discharge permits to be challenged through a petition for writ of
The Legislature has also directed the State Board to implement a “nonpoint source management plan.” (
FACTUAL AND PROCEDURAL BACKGROUND
Appellants filed a complaint and petition alleging two causes of action. The first cause of action, against respondent Central Coast Board, challenged the State Board’s 2017 Conditional Waiver of Waste Discharge Requirements for Discharges from Irrigated Lands, Order No. R3-2017-0002, and the related monitoring and reporting program, via a petition for writ of administrative mandamus pursuant to
According to the complaint, agricultural water pollution has harmed public health and ecological resources throughout California. Runoff from crop irrigation carries pollutants into creeks, rivers, and the ocean, and percolates into groundwater. Appellants alleged that this led to hundreds of thousands of Californians in rural communities lacking clean, safe water.
The State Board demurred to the second cause of action, asserting it failed to identify a ministerial duty supporting mandamus or a controversy susceptible to declaratory relief. The trial court sustained the demurrer with leave to amend.
Coastkeeper filed an amended complaint retaining the first cause of action, while adding three new causes of action. The second cause of action related to the 2018 agricultural waste discharge permit issued by the Central Valley Regional Water Control Board (Central Valley Board) and the State Board’s modification of the permit. This cause of action added the Central Valley Board as a defendant and two new plaintiffs.
The third cause of action, brought against the Central Coast Board, Central Valley Board, and the State Board, alleged the regional water boards failed to comply with the NPS Policy in a manner that achieves and maintains water quality objectives and protects beneficial uses, including antidegradation requirements. In support, appellants alleged that the State Board and the two regional water boards have long been aware that agricultural discharges were degrading water quality and preventing the attainment of water objectives and, through various means, failed to take measures to address the problems. Either through action or inaction, the respondents were alleged to have systematically failed to comply with the NPS Policy. The complaint further alleged that the State Board’s revisions or decisions to decline to revise general agricultural orders adopted by the regional water boards failed to
The fourth cause of action addressed the State Board’s duties under the public trust doctrine. It alleged the State Board had a continuing supervisory duty under the public trust doctrine which it violated by failing to avoid or minimize harm associated with agricultural discharges. Appellants sought a writ of mandate directing the State Board to comply with its obligation to protect public trust resources and avoid or minimize harm caused by agricultural discharge.
Appellants alleged that the Central Valley Board’s 1982 and 2003 waivers largely exempted agricultural operations or had no controls for pollution at the source, and that the 2003 waiver had been found to be inconsistent with antidegradation regulations. The renewal of the 2003 waiver led to additional litigation, resulting in a stipulated judgment with a 2011 deadline to establish a regulatory program for irrigated lands. The 2006 waiver was renewed in 2011, but the trial court found the renewed waiver did not comply with the NPS Policy or antidegradation regulations. A permit for the Eastern San Joaquin Regional Board allegedly also did not comply with the NPS Policy.
Respondents filed a motion to strike the second cause of action and a demurrer to the third and fourth causes. The motion to strike asserted the second cause of action should be stricken because it did not respond to the reason for sustaining the earlier demurrer, and new plaintiffs may be added only after petitioning to intervene. The demurrer asserted the third cause of action failed to identify a mandatory ministerial act, or failure to act to be controlled by writ, and did not identify a controversy amenable to declaratory relief. Respondents asserted the fourth cause of action fails because administration of the public trust necessarily involves discretion.
DISCUSSION
I
Standard of Review
“Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we apply the de novo standard of review in an appeal following the sustaining of a demurrer without leave to amend. [Citation.] We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. [Citation.]” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “We will affirm the trial court’s decision to sustain the demurrer was correct on any theory. [Citation.]” (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 539.)
“When considering an appeal from a judgment entered after the trial court sustained a demurrer without leave to amend, we ‘accept as true all well-pleaded facts in the complaint and give a reasonable construction to the complaint as a whole.’ [Citations.] In addition, we may consider matters that
II
Declaratory Relief
Appellants contend the trial court erred in sustaining the demurrer as to declaratory relief by requiring more than allegations of respondents’ ongoing failure to comply with the NPS Policy.
Declaratory relief is available to a party “who desires a declaration of his or her rights or duties with respect to another . . . .” (
A party seeking declaratory relief must show a very significant possibility of future harm. (Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6, 17 sufficiently ripe to represent an ‘actual controversy’ within the meaning of the statute authorizing declaratory relief (Code Civ. Proc., § 1060), as opposed to purely hypothetical concerns . . . .” (Steinberg v. Chiang (2014) 223 Cal.App.4th 338, 343.) “An ‘actual controversy’ under the declaratory relief statute is ‘one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts.’ [Citation.]” (Gilb v. Chiang (2010) 186 Cal.App.4th 444, 459.)
The
We agree with this summation and with the trial court’s conclusion that this type of claim cannot support declaratory relief. Appellants’ complaint asserted that one means by which the State Board systematically fails to abide by the NPS Policy is through its decisions on whether to review regional water board actions. The State Board’s decision to review a regional water board action is entirely within the State Board’s discretion and not subject to judicial review. (Johnson v. State Water Resources Control Bd., supra, 123 Cal.App.4th at p. 1114.) Using declaratory relief to force the State Board to exercise its discretion in a particular manner cannot be squared with this principle. More importantly, the complaint does not allege a dispute amenable to resolution through declaration.
Declaratory relief requires a court to have “narrow, precise questions to guide its examination, without which it is unable to ‘decree, and not suggest, what the parties may or may not do.’ [Citation.]” (Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 664.) The NPS Policy is a complex matter which will take substantial time to resolve and will necessarily require different approaches in different localities.3 An issue as intricate and complex as water pollution from agricultural runoff cannot be “solved” by a court decree in a declaratory relief action.
Appellants argue declaratory relief is available because they have alleged a mandatory duty to follow the NPS Policy and that respondents have systematically ignored this duty for decades. They find their claim for declaratory relief supported by Californians for Native Salmon etc. Assn. v. Department of Forestry (1990) 221 Cal.App.3d 1419 (Native Salmon) and Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547 (Venice Town Council). Neither case supports the declaratory relief sought here.
Native Salmon and Venice Town Council allowed declaratory action where an agency has an alleged policy or pattern and practice of ignoring applicable laws. In Native Salmon, the plaintiffs alleged the Department of Forestry violated state law and the relevant implementing regulations by approving timber harvesting plans without notice to the public or responding to significant environmental objections and failing to consider the cumulative environmental impact of timber harvesting. (Native Salmon, supra, 221 Cal.App.3d at pp. 1424-1425.) According to the plaintiffs, this was a “quasi-legislative policy” set by the agency. (Id. at p. 1429.) The First District Court of Appeal found that a quasi-legislative policy of applying or interpreting a statute or rule in a particular manner was subject to declaratory action. (See ibid.; Bess v. Park (1955) 132 Cal.App.2d 49, 52-54 [declaratory relief available to “any interested person” to review “any rule, regulation, order or standard of general application adopted by any state agency to implement, interpret or make specific, any law enforced or administered by it . . . .”].) Allowing a declaratory action to proceed also served judicial economy by avoiding piecemeal litigation of these issues. (Native Salmon, at p. 1430.) The trial court therefore erred in granting the demurrer to the declaratory action. (Id. at pp. 1430-1431.)
Venice Town Council involved a dispute over whether the Mello Act (
The trial court granted respondents’ request to take judicial notice of the State Board’s 2018 Waste Discharge Requirements General Order No. RS-2012-0116, Order WQ 2018-002, upholding the Central Valley Board’s WDR for growers in the East San Joaquin Valley. In that document, the State Board acknowledges the permit must conform to the NPS Policy. The order also analyzes the NPS Policy and makes specific findings in support of its conclusion that the East San Joaquin Valley order is consistent with the NPS Policy. For example, the order noted efforts by the Central Valley Board to address salt and nitrate impacts.4 The order also discussed how the NPS Policy guides
the State Board’s interpretation and implementation of the Water Code’s requirements regarding nonpoint source discharges. It found the Central Valley Board’s WDR’s complied with key element one of the NPS Policy by establishing water quality requirements and making water limitations effective immediately unless a member was implementing an approved plan with an approved timeline. The WDR’s also complied with key element three by setting a maximum time limit of 10 years for a nonpoint source
The State Board recognized that key element one required not just setting objectives, but also mandated programs to address nonpoint source pollution in a manner that achieves and maintains water quality objectives and beneficial uses. Accordingly, the regional water boards must not just set water quality objectives but must also determine that there is a high likelihood the program will attain the regional water boards’ stated objectives. The State Board recognized that “a broad scale nonpoint source regulatory program does not necessarily generate the type of data that facilitates easy determination and enforcement of compliance with receiving water limitations” because “monitoring the numerous and sometimes indeterminate set of all farm discharge points to surface water and groundwater is an impractical, prohibitively costly, and often ineffective method for compliance determination and the Non point Source Policy accordingly does not mandate such monitoring.” It found that management practice implementation was not a substitute for compliance, but “a schedule of management practice implementation, assessment, and adaptive management may act as a proxy for assessing regulatory program progress.”
This conclusion was consistent with the NPS Policy’s key element two’s requirement that the program describe management practices, program elements, and the necessary processes to implement them, as well as key element four’s requirement of sufficient feedback mechanisms. The WDR’s at issue required members to implement management practices to “1) minimize waste discharge offsite in surface water; 2) minimize percolation of waste to groundwater; and 3) protect wellheads from surface water intrusion,” to prepare farm evaluations to document implemented practices, and, where necessary, act similarly with regard to nitrogen management as well as erosion and sediment control. The Central Valley Board’s WDR appropriately used third parties to collect data on management practices and reported every year to the Central Valley Board regarding “the degree of implementation of management practices and evaluation of the [e]ffectiveness of the management practices with the data in aggregated form.” The State Board engaged in similar analysis and detailed findings regarding the WDR’s with respect to the other key elements of the NPS Policy.
We need not (and do not) accept the conclusions of the State Board order regarding whether the WDR’s complied with the NPS Policy. However, we cannot ignore this judicially noticed evidence that the State Board and the Central Valley Board do not ignore or refuse to implement the NPS Policy. A
Declaratory relief generally is not available to use the courts to tell an administrative agency how to do its job. An action for declaratory relief “does not confer upon the court the authority to make pronouncements in a field reserved to other branches of government. [Citation.]” (Bautista v. State of California (2011) 201 Cal.App.4th 716, 734.) Such is the case here. Although the complaint generally alleges a pattern and practice of ignoring or not implementing the NPS Policy, at its heart, the complaint contests the effectiveness of the State Board’s and local regional water boards’ efforts to implement the policy. This will not support an action for declaratory relief, and the trial court did not err in sustaining the demurrer with regards to the declaratory relief action here.
III
No Mandamus
Appellants also contend the trial court erred in sustaining the demurrer to their traditional mandamus actions in their second and third causes of action. They claim the two causes stated claims for mandamus relief to correct respondents’ continuing illegal practice of failing to comply with the NPS Policy and the State Board’s “utter failure of its duty to consider the public trust doctrine.” They claim the trial court erred in failing to recognize respondents’ respective duties under the NPS Policy and public trust doctrine are mandatory.
This is an action under
A. NPS Policy
Appellants’ claim regarding the NPS Policy fails because, like the action for declaratory relief, it is, in essence, based on the alleged failure of respondents to do enough to comport with the NPS Policy. Application of the NPS Policy necessarily involves discretionary acts by the local and state boards. The NPS Policy statement recognizes the discretion inherent in applying this policy: “[Regional Water Boards] have broad flexibility and discretion in using their administrative tools to fashion NPS management programs, and are encouraged to be as innovative and creative as possible, and, as appropriate, to build upon Third-Party Programs. The State Board, in turn, is encouraged to establish a program that recognizes and honors successful and outstanding third-party efforts.” Application of the NPS Policy is a quintessentially discretionary task not subject to traditional mandamus.
In support of their claim, appellants rely on two cases allowing petitioners to challenge administrative decisions under both traditional and also administrative mandamus. (
Timmons v. McMahon (1991) 235 Cal.App.3d 512 (Timmons) involved an action by a temporary guardian of children to obtain benefits under the state-mandated Aid to Families with Dependent Children-Foster Care (AFDC-FC) program for the period when she was the children’s guardian. (Id. at p. 514.) The petitioner filed a claim for administrative mandamus to obtains benefits for the period of her guardianship, and also sought traditional mandamus “to correct the Department’s eligibility policies so that otherwise eligible applicants would not be denied benefits solely because they were temporary rather than permanent guardians.” (Ibid.) The department denied the claim for benefits solely because the petitioner was a temporary rather than permanent guardian. (Id. at pp. 514-515.) When an administrative law judge ruled the statutory scheme distinguish between temporary and permanent guardians, the department rejected the decision and issued a decision denying the claim because the petitioner was a temporary guardian. (Id. at p. 515.) In granting administrative mandamus, the trial court found the department had a policy and practice of distinguishing between temporary and permanent legal guardians for the purpose of establishing AFDC-FC eligibility, which violated the controlling statutes. (Ibid.)
The First District Court of Appeal found traditional mandate was appropriate in this case. (Timmons, supra, 235 Cal.App.3d at p. 517.) The petition addressed the department’s “legal interpretation of the relevant eligibility requirements.” (Ibid.) The department’s legal interpretation that led to the improper denial of the petitioner’s claim was based in part on a misleading departmental regulation. (Ibid.) Since the policy of denying AFDC-FC benefits to temporary guardians violated the relevant statutes, traditional mandamus was appropriate to compel the department to conform to the law. (Id. at p. 518.)
As we have previously discussed, respondents do not have a policy denying that the NPS Policy applies to and governs their actions. The real dispute regards the sufficiency of those actions, which distinguishes Timmons and Conlan, and is the reason the trial court was correct with respect to sustaining the demurrer on the third cause of action.
B. Public Trust Doctrine
Under the public trust 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.’ [Citations.]” ( 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 (National Audubon).) “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, at p. 446, fn. omitted.)
Appellants argue the State Board had a mandatory duty to apply the doctrine and their allegation that the State Board had public trust obligations with regard to both individual permits and to the entire program governing irrigated agriculture supported mandamus relief. (See Environmental Law Foundation v. State Water Resources Control Bd. (2018) 26 Cal.App.5th 844, 862 [public trust doctrine applies to State Board in conjunction with the Water Code].) They note the claim alleges the existence of a public trust duty, the many public uses under threat, the failure of all of the many agricultural permits to consider the impacts of the permits or program on the public trust resources, and to the failure protect and avoid or minimize harm to public trust resources to the extent feasible, and find that this supports traditional mandamus.
As the Supreme Court found in National Audubon and appellants admit in the trial court and on appeal, public trust uses are to be protected wherever feasible. The public trust resources therefore need not be protected under every conceivable circumstance, but only in those where protection or harm minimization is feasible. “As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses.” (National Audubon, supra, 33 Cal.3d at p. 446.) The public trust doctrine necessarily involves the exercise of discretion by state agencies. “[T]he state is free to choose between public trust uses and that selecting one trust use ‘in preference to . . . [an]other cannot reasonably be said to be an abuse of . . . discretion.’ [Citation.]” (Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 577.) Accordingly, the relevant governing case law does not “impress into the public trust doctrine any kind of procedural matrix.” (Id. at p. 576.)
This inherently discretionary doctrine generally does not allow for intervention by the courts other than in the context of judicial review of
Appellants’ fourth cause of action, which would require the State Board to protect public trust resources statewide, is particularly ill-suited to traditional mandamus. Simply ordering the State Board to apply the public trust doctrine would be an empty judgment, while actually determining whether the State Board is properly applying the doctrine would necessarily require the trial court to consider the many decisions within the State Board’s mandate, decisions that will typically require the exercise of administrative discretion and will often require technical expertise.
When ruling on the demurrer to the first petition, the trial court stated: “But isn’t that just such an open-ended remedy, where I say, ‘Okay, I order you guys to follow the law,’ and then what? You guys come back in two or three months and say, ‘Judge, they’re not following the law, they’re not doing what you told them to do. The law says this and they’re not following it.’ [¶] I mean, it would be ongoing—I would be a receiver. I would be sitting on top of them—I’d be—I’d be reviewing everything they did, to make sure they’re following the law.”
The trial court was right. Traditional mandamus in this case would make the trial court the effective overseer of the State Board and the regional water boards, making the court one of the most, if not the most, powerful entities in setting water policy. The causes of action here cannot support such a result.
IV
Leave to Amend
Appellants’ final contention is the trial court erroneously denied them leave to amend the complaint.
Appellants have not proposed an amendment that would cure the defects. We accordingly conclude the trial court was within its discretion to deny leave to amend.
DISPOSITION
The judgment is affirmed. Costs on appeal to respondent State Board. (Cal. Rules of Court, rule 8.278(a).)
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BLEASE, J.
We concur:
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RAYE, P. J.
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HULL, J.