COASTAL RANCHES CONSERVANCY V. CALIFORNIA DEPARTMENT OF STATE PARKS AND RECREATION
COASTAL RANCHES CONSERVANCY V. CALIFORNIA DEPARTMENT OF STATE PARKS AND RECREATION
Case Number
22CV02818
Case Type
Hearing Date / Time
Tue, 01/21/2025 - 15:39
Nature of Proceedings
Request by Petitioner Coastal Ranches Conservancy for Partial Summary Judgment pursuant to Code of Civil Procedure sections 1085 and 1094, and for Partial Summary Judgment pursuant to Code of Civil Procedure section 437c.
Tentative Ruling
Daniel Cooper / Kristina Hambley of Sycamore Law, Inc. and Michelle Black of Carstens, Black & Minteer, LLP for Petitioner Coastal Ranches Conservancy
Rob Bonta / Jessica E. Tucker-Mohl / Carlos A. Mejia / Sophie A. Wenzlau of Attorney General’s Office for Respondent California Department of Parks and Recreation
RULING
For reasons more fully articulated below, the Court will deny the motion for partial summary judgment (Code Civ. Proc., § 1094) and/or summary adjudication (Code Civ. Proc., § 437c(f)) as it relates to (a) the Second Cause of Action (violation of CEQA) alleged in Case No. 24CV02742, (b) the First Cause of Action (unreasonable use of water) alleged in Case No. 22CV02818; and (c) the Second Cause of Action (violation of the public trust doctrine) alleged in Case No. 22CV02818. As explained by the Court’s analysis, triable issues of material fact preclude the adjudication of these claims, which will be resolved at trial.
For reasons more fully articulated below, the Court will grant the motion to summarily adjudicate that State Parks’ Affirmative Defense No. 10, as alleged in its answers to CRC’s petitions in both Case No. 22CV02818 and 24CV02742, that “Petitioner lacks standing to bring some or all causes of action and prayers for relief in the Petition,” is without merit.
RELEVANT BACKGROUND
On July 22, 2022, Petitioner Coastal Ranches Conservancy (CRC) filed a Petition for Writ of Mandate and Declaratory and Injunctive Relief (PET) against Respondent California Department of State Parks and Recreation (State Parks), alleging claims based upon the alleged waste and unreasonable use of water, violation of public trust duties, and the violation of the California Environmental Quality Act (CEQA) by failing to comply with a negative declaration. On September 13, 2022, CRC filed its First Amended Petition for Writ of Mandate and Declaratory and Injunctive Relief (FAP), which added a fourth cause of action against State Parks for violation of the California Coastal Act in failing to comply with the Coastal Development Permit for the Gaviota Beach State Park Rehabilitation Project, and separated the previously alleged cause of action for violation of CEQA into two separate claims: (a) arising from State Parks’ alleged failure to comply with the negative declaration for the Gaviota Beach State Park Rehabilitation Project (third cause of action), and (b) arising from State Parks’ alleged failure to comply with the negative declaration for a Water Supply Project.
Both the PET and FAP complained of State Parks’ failure to comply with the requirements of a 1998 Mitigated Negative Declarations for the Water Supply Project:
1998 MND With respect to the Water Supply Project, State Parks owns and operates the land surrounding a natural spring (Las Cruces Spring) on the north slope of Gaviota Peak, which provides relatively consistent flow feeds to Las Canovas Creek, the largest tributary of Gaviota Creek, when it is unobstructed. Prior to 1988, State Parks began diverting water from the spring for storage and use at the campground, through use of a spring box which delivers water at a rate of approximately 26,000 GPD to the Gaviota-Las Cruces Water Treatment Plant. After treatment, the diverted water travels to a 94,000-gallon storage tank, and a booster station then supplies potable water to approximately 91 people via six service connections, including residences inhabited by State Parks employees, the campground, beach, and day use areas, and two Caltrans roadside rest stops along Highway 101. As a result of the diversion of water, the decreased flows result in increased water temperatures, which contributes additional stress to the endangered Southern California Steelhead, resulting in their mortality, and preventing recovery of the species.
In 1998, State Parks proposed to install new water lines to serve Gaviota State Park and the Gaviota rest stops, and replace the existing water treatment facilities. It would connect existing water systems at the Hot Springs, an existing Caltrans water well serving the Gaviota rest stops, and the campground/day use areas of the state park. In connection with the project, it issued a MND which analyzed water demand both on an average daily basis and during peak summer usage, and water supply both on an average annual basis and during critical base flow (July through September). Among other provisions, the MND stated that “to ensure that coincidence of peak use periods does not adversely impact biological resources in the Hot Springs and Las Canovas Creeks, during the period of July 1 through September 20, the Caltrans well will be utilized at full capacity any time the spring sources drops below 30 gpm.” As a result, the potential impacts to surface water resources and related potential impacts to plans and wildlife could be avoided through the project operation standards, with no significant adverse impacts to those resources. The MND also required State Parks to remove all old and obsolete water pipe in the Gaviota Creek Channel, and to seek permits or waivers of permits from the California Department of Fish and Wildlife, US Fish and Wildlife Service, and the Army Corps of Engineers prior to approval of a Coastal Development Permit.
CRC alleges that State Parks has not suspended use of the creek water sources during the summer months when flows drop below 30 gpm, and has not utilized the Caltrans Well at all since at least the year 2000, even during periods of peak use when the spring source drops below 30 gpm. It alleges further that State Parks failed to remove the water pipes in the Gaviota Creek channel, and failed to apply for the permits or waivers, as required by the MND.
State Parks answered the FAP on November 17, 2022.
For reasons more fully discussed and resolved in this Court’s ruling issued on August 7, 2024, the CEQA causes of action were dismissed from Case No. 22CV02818 on May 17, 2024, and refiled as Case No. 24CV02742 on May 27, 2024. In the August 7 ruling, State Parks’ motion to dismiss the CEQA claims from Case No. 22CV02818 was granted, State Parks’ motion to strike the entirety of the petition in Case No. 24CV02742 was denied, and CRC’s motion to consolidate Case No. 24CV02742 into Case No. 22CV02818 was granted. As a result, the operative CEQA causes of action in this action are those which were alleged in Case No. 24CV02742. While the substance of the causes of action is largely the same, some allegations were reorganized, and there were other small additions to and deletion of allegations from the causes of action as they had previously been alleged.
The Court heard and denied State Parks’ motion for judgment on the pleadings, which had been filed with respect to the FAP in Case No. 22CV02818. Of relevance to the current matter before the court, the Court found that the cause of action seeking traditional mandate pursuant to Code of Civil Procedure section 1085, based upon the alleged failure to follow or comply with CEQA mitigation measures, was adequately alleged, based upon the law applicable to mitigation measures. Specifically, the Court found that once imposed, mitigation measures cannot be defeated by ignoring them, and that where a public agency has adopted a mitigation measure, it may not authorize its destruction or cancellation without reviewing the continuing need for the mitigation, stating a reason for its actions, and supporting it with substantial evidence. Further, if the valid reason for the deletion is stated, and the evidence supports the governing body’s finding that the stated reason exists, it should be subjected to the same scrutiny as would any environmental document. (See Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1168; Katzoff v. California Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 614; Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 358; and Lincoln Place tenants Association v. City of Los Angeles (2007) 155 Cal.app.4th 425, 450.)
In denying the motion for judgment on the pleadings, the Court also found that the allegations of the relevant petitions did not allege sufficient facts to support the conclusion that CRC had beneficial interest standing, but that the allegations were sufficient to allege the existence of public interest standing to maintain the petition. In making that finding, the Court noted that it had little problem in concluding that the FAP alleged sufficient facts to support the existence of a weighty public need, and little problem in concluding that there was a sharp public duty which CRC was seeking to enforce, under the circumstances alleged in the FAP. The Court further noted that particularly given that the motion was a pleading challenge, it could not find that the allegations were insufficient to support the weighty public need and sharp duty. It further found that the allegations that CRC members had specific and direct interests in the health and vitality of the Gaviota Coast area provided further support for the conclusion that it was asserting a special interest in protecting the rights of the beneficiaries of the public duty, such that it should be accorded public interest standing to pursue the writ petition.
The operative pleadings in this case consist of the First, Second, and Fourth causes of action alleged in the First Amended Petition in Case No. 22CV02818 (for waste and unreasonable use of water; for violation of the public trust doctrine; and for violation of the Coastal Act, respectively), as consolidated with the Petition filed in Case No. 24CV02742, which includes cause of action for (1) violation of CEQA based upon the failure to comply with a 1992 Negative Declaration for the Gaviota Beach State Park Rehabilitation Project; and (2) violation of CEQA for failing to comply with the 1998 Negative Declaration for the Water Supply Project.
State Parks filed verified answers to each of the relevant petitions, in which it asserted, as Affirmative Defense No. 10 in each answer, that “Petitioner lacks standing to bring some or all causes of action and prayers for relief in the Petition.”
On September 24, 2024, CRC filed the current motion, which is entitled “Notice of Request for Writ of Mandate and Motion for Partial Summary Judgment,” setting the matter for hearing on December 18, 2024. The motion is directed only to (a) State Parks’ alleged affirmative defense that CRC does not have standing to pursue its petitions; (b) the First Case of Action (for waste and unreasonable use of water) alleged in Case No. 22CV02818; (c) the Second Cause of Action (violation of the public trust doctrine) alleged in Case No. 22CV02818, and (d) the Second Cause of Action (for violation of CEQA for failing to comply with the 1998 Negative Declaration for the Water Supply Project), alleged in Case No. 24CV02742. Issues regarding the Gaviota Beach State Park Rehabilitation Project, and the alleged violation of the Coastal Act, are therefore not currently before the Court.
The motion is accompanied by a separate statement of material facts, and the declarations of petitioner’s counsel, three members of Petitioner, and a declaration of a geologist and civil engineer. The declaration of petitioner’s counsel attached a series of documents, including an engineering report, an evaluation report for Gaviota State Park, the 1998 Negative declaration, an Interagency Agreement, two Water Permits, an email chain between State Parks employees, gauging documents, and a deposition transcript. Only the email chain and the gauging data were designated as matters which had been produced by State Parks, although no information was provided with respect to the manner in which they were produced, i.e., whether in response to requests for production, or some other means. The remaining documents were unauthenticated, and outside counsel’s demonstrated personal knowledge.
State Parks filed opposition to the motion on November 22, 2024, including a memorandum of points and authorities, separate statement in response to CRC’s statement of material facts, extensive objections to the evidence submitted by CRC, the declaration of counsel (authenticating deposition transcripts and a report found in State Parks’ files), the declaration of a senior engineering geologist with the Conservation Engineering Brach at the California Department of Fish and Wildlife, and the declaration of the Water and Sewer Plant Supervisor at the Gaviota-Las Cruces Water Treatment Plant.
CRC filed reply papers on December 11, 2024, including a memorandum of points and authorities, supplemental declaration of counsel, and a reply to State Parks’ evidentiary objections. The supplemental declaration of counsel also appears to have been provided in response to the evidentiary objections interposed by State Parks, for the first time asserting that “[a]ll of the documents and data relied upon in my Initial Cooper Dec. in support of coastal Ranches’ §1094/PSJ Motion were obtained from Parks as part of Parks’ responses” to Requests for Production of Documents served on January 23, 2023, April 2, 2024, and July 17, 2024. It then proceeds to specifically identify the production, and other purported authentication information for the documents. It further contains counsel’s statement that he “personally reviewed and searched the State Clearinghouse webpage for documents that reflected or contained any evidence that Parks substituted or modified the 1998 MND mitigation measures consistent with CEQA procedure, and found none. Furthermore, none of the documents received by Coastal Ranches through PRA request or through discovery reflected or contained any evidence that Parks substituted or modified the mitigation measures consistent with CEQA procedure.” [Reply declaration of Cooper, at ¶ 13.]
The hearing on the motion was continued by the Court to January 22, 2025, shortly before the original hearing date.
A Court Trial of the entirety of the mandate claims set forth in the consolidated petitions is currently scheduled for February 13, 14, and 18, and the Court has expressed its intent to hear evidence at that time, and request the parties to provide post-trial briefing, after which the Court will consider the matter “submitted” and will issue its ruling following the completion of its analysis of the evidence and briefing.
ANALYSIS
1. Nature of the motion.
CRC’s notice of motion identifies the motion as one for partial summary judgment on peremptory writ pursuant to California Code of Civil Procedure sections 1085 and 1094, or in the alternative, partial summary judgment pursuant to California Code of Civil Procedure section 437c. (Motion at p. 1, lines 4-6).
The motion is directed to the First Case of Action (for waste and unreasonable use of water) alleged in Case No. 22CV02818; (b) the Second Cause of Action (violation of the public trust doctrine) alleged in Case No. 22CV02818, (c) the Second Cause of Action (for violation of CEQA for failing to comply with the 1998 Negative Declaration for the Water Supply Project), alleged in Case No. 24CV02742, and (d) the issue of CRC’s standing to pursue the petitions.
There has been no such thing as “partial summary judgment” pursuant to Code of Civil Procedure section 437c for decades. The Court will therefore assume that the motion is alternatively seeking to summarily adjudicate the mandate causes of action in CRC’s favor, particularly given that the motion for partial judgment pursuant to Code of Civil Procedure section 1094 will appropriately be resolved in this case under the same standard as that of the summary adjudication motion, i.e., it must meet its burden of proof to establish entitlement to issuance of the requested writ, be supported by admissible evidence, and be denied if there are any triable issues of material fact. (See discussion of both types of motions, infra.)
Further, the motion never makes clear the basis for summary adjudication of the standing issue. However, the Court has noted that State Parks’ Answers to the petitions in both cases (22CV02818 and 24CV02742) both allege, at Affirmative Defense 10, that the petitioner lacks standing to pursue the petition. While CRC’s motion never mentions that fact, the Court notes that an adjudication that there is no merit to an affirmative defense is a proper subject for summary adjudication. (Code Civ. Proc., § 437c, subd. (f)(1); see discussion, infra.) Therefore, the Court has assumed that this is what CRC intended, and has analyzed it as such.
2. Standards for motion for judgment on traditional mandate causes of action.
Section 1085 provides authority for issuance of a writ to compel the performance of an act which the law specially enjoins, where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Such writ will issue against a county, city or other public body or against a public officer. (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
Traditional mandamus under Section 1085 is the proper form of action to challenge the reviewable ministerial or quasi-legislative acts of a public agency. (California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464, 1483.) A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. (Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911, 916.) Ministerial acts involve no judgment or discretion by the public official as to the wisdom or manner of carrying out the activity. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. (Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 489.) A ministerial decision involves only the use of fixed standards or objective measures, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out. (Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal.4th 105, 117.)
Mandamus is not appropriate where the act which a plaintiff seeks to compel is not an act required by law. (The H.N. & Frances C. Berger Foundation v. Perez (2013) 218 Cal.App.4th 36, 46, citing California Teachers Association v. Governing Board (1984) 161 Cal.App.3d 393, 399.) Mandate will not lie to control a public agency’s discretion, i.e., to force the exercise of discretion in a particular manner. (Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 204.)
Pursuant to Section 1094, if a petition for a writ of mandate filed pursuant to Section 1088.5 (i.e., one which does not seek an alternative writ) presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.
In the current case, the motion is not being based solely on an administrative record. The motion procedure in this action is therefore appropriate only if it the petition presents no triable issue of material fact with respect to the entitlement to the writ. As a result, just as with summary judgment or adjudication motions, the motion must be denied if it fails to meet its burden of establishing entitlement to the writ being requested, or if there exist any triable issues of material fact.
3. Standards for summary judgment and adjudication motions.
Where a plaintiff seeks summary judgment, its burden is to produce admissible evidence on each element of a cause of action entitling it to judgment. (Code Civ. Proc., § 437c, subd. (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) The plaintiff must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 841.) The plaintiff need not disprove any affirmative defenses in order to meet its initial burden on summary judgment. (Code Civ. Proc., § 437c, subd. (p)(1); Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the plaintiff meets its initial burden, the burden then shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or to a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(1).) To meet that burden, the party opposing the motion must produce admissible evidence showing a triable issue of fact exists. (Id.; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.)
The pleadings play a key role in a summary judgment motion. (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) It is the allegations of the complaint to which the summary judgment must respond (Todd v. Dow (1993) 19 Cal.App.4th 253, 258), and the pleadings serve as the measure of materiality for the motion. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) The moving party’s evidence must therefore be directed to the claims or defenses raised in the pleadings. (Keniston v. American National Insurance Co. (1973) 31 Cal.App.3d 803, 812.) Neither party can rely on its own pleadings, even if verified, as evidence to support or oppose a motion for summary judgment or summary adjudication. (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054.) The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.)
All facts that could make a difference in the disposition of the motion must be set forth in the separate statement of material facts which is required to accompany the motion. (Cal. Rules of Court, rule 3.1350(c)(2) and (d)(1).) The separate statement serves two important functions in a summary judgment proceeding: it notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 65, 875), and quickly determine whether the motion is supported by sufficient undisputed facts. (Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532, 540, reversed on other grounds by Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918.) Facts which are stated in a place other than the separate statement need not be considered by the court in resolving the motion. (Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916, fn. 3.)
A separate statement should include only those facts which are truly material to the claims or defense involved, because the “separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).)
In ruling on a motion for summary judgment, the trial court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)), and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)
In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107; see also Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 10:270.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra.)
4. Partial Summary Judgment of Traditional Mandate Causes of Action.
The motion is based upon CRC’s claim that State Parks violated CEQA by failing to comply with the mitigation measures imposed by the 1998 MND, and is structured in such a manner that the requested adjudication of the public trust and unreasonable use of water claims piggybacks upon that contention, by claiming that State Parks’ failure to comply with the mitigation measures imposed by the 1998 MND also constitutes a violation of its public trust duties and its obligation to use state water resources reasonably and beneficially. Conversely stated, it is CRC’s position that State Parks would meet its public trust and reasonable water use obligations through its compliance with the 1998 MND.
Consequently, the Court will first evaluate and resolve the motion as it relates to the Second Cause of Action alleged in Case No. 24CV02742, for violation of CEQA in failing to comply with the 1998 MND for the Water Supply Project. It will then proceed to evaluate the public trust and unreasonable use of water causes of action, which are alleged in the First Amended Petition in Case No. 22CV02818.
A. CEQA claim for traditional mandate.
(1) CEQA mitigation measures.
Mitigation measures are not mere expressions of hope. (Lincoln Place Tenants Association v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1508 (Lincoln Place I).) CEQA requires an agency to take steps to ensure that mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or discarded. (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 358 (Napa Citizens).) Once incorporated, mitigation measures cannot be defeated by ignoring them or by attempting to render them meaningless by moving ahead with the project in spite of them. (Lincoln Place Tenants Association v. City of Los Angeles (2007) 155 Cal.App.4th 425, 450 (Lincoln Place II).)
Certainly, there is nothing in the law that requires that a mitigation measure, once adopted, is binding for all time. (Napa Citizens, supra, 91 Cal.App.4th at p. 359.) However, there is a presumption that the governing body adopted the mitigation measure in the first place only after due investigation and consideration. (Ibid; see also, Katzoff v. California Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 614.) As a result, if a public agency wishes to delete an earlier adopted mitigation measure, it must state a legitimate reason for doing so, and must support that statement of reason with substantial evidence. (Ibid; see also, Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1168; Katzoff, supra; Lincoln Place I, supra, 130 Cal.App.4th at p. 1509.) Where a public agency has adopted a mitigation measure for a project, it may not authorize destruction or cancellation of the mitigation without reviewing the continuing need for the mitigation, stating a reason for its actions, and supporting it with substantial evidence. (Katzoff, supra.) If the valid reason for the deletion is stated, and the evidence supports the governing body’s finding that the stated reason exists, it should be subjected to the same scrutiny as would any environmental document. (Napa Citizens, supra.)
This requirement certainly places a significant burden on the public agency, given that it requires the institution of formal CEQA proceedings, requiring public notice and an opportunity for public participation, in the event that mitigation measures imposed as a result of CEQA review prove unwise, impractical, or unworkable. The Court has significant doubt that the failure to engage in such a procedure would, in the vast majority of instances where mitigation measures have been imposed as a result of CEQA review, become an issue of contention. Nevertheless, CEQA requires that an agency either implement and/or enforce the mitigation measures imposed, or engage in a process to review the continuing need for the mitigation, and authorize its cancellation or modification by setting forth a reason for its actions which is supported by substantial evidence, which determination is subject to CEQA scrutiny and judicial review.
(2) Party arguments and evidence.
(a) CRC’s petition and motion.
CRC’s petitions and motion assert that, in the course of its environmental review for the construction and improvement of its facilities to supply water to the Gaviota State Park and the Gaviota Rest stops (Water Supply Project), State Parks in 1998 imposed upon itself in a MND the mitigation measure of using the Caltrans well to at full capacity any time the water supply project’s spring water sources dropped below 30 gpm, during the period of July 1 through September 20, to ensure that coincidence of peak use periods does not adversely impact biological resources in the Hot Springs and Las Canovas Creeks. The MND noted that potential impacts to surface water resources and related potential impacts to plants and wildlife could be avoided through the described project operation standards, and no significant adverse impacts to those resources would occur. CRC asserts that the mitigation measure was inserted to avoid impacts to public trust resources, and that agency expertise was utilized in the adoption of the MND. State Parks and Caltrans entered into an agreement requiring Caltrans to operate and maintain the well. The well was permitted for use in 2000, but has not been utilized and has been inactive since at least 2008, and has not been a permitted water source for the water system since at least 2015. It was disconnected because it was adversely affecting the treatment facility. No water source other than the Las Cruces Spring has been used for the water supply project since at least 2004, even when flows were less than 30 gpm at the Las Canovas Spring. Parks has not modified the mitigation measures imposed by the MND.
Consequently, CRC contends that State Parks has violated CEQA, and it is entitled to issuance of the requested writ on the CEQA violation cause of action.
The precise prayer for relief in the CEQA cause of action at issue (in Case No. 24CV02472) is: “Costal Ranches Conservancy prays that this Court order State Parks to comply with CEQA and their 1998 Negative declaration, which contains concrete and specific mitigation to protect sensitive biological resources, or, in the alternative to implement the Water Supply Project as described in the 1998 Declaration.” (Prayer at ¶ 2.)
In support of this substantive portion of the motion, CRC submitted the declaration of geologist and civil engineer Derek Booth, who has reviewed documents provided to him by CRC’s counsel, including (1) the 1998 MND, and (2) a set of Excel spreadsheets titled “Las Cruces Spring Production.xlsx”, which counsel had told him had been provided by State Parks in discovery. He printed and attached the workbook. He noted the MND requirements, and that it mitigated impacts to resources in Las Cruces and Gaviota Creeks by requiring the Caltrans well to be operated at full capacity whenever the spring flow at Las Cruces Spring fell below 30 gpm during July through September, and states that its clear intent was to avoid any summertime diversion of springflow unless demand exceeded the well’s full capacity.
With respect to the production spreadsheet, he declared that his review of the data indicated that no source other than Las Cruces Spring was used at the Water Supply Project since at least 2004, confirmed by 3 lines of inquiry: (1) a graph from the tab “Spring v WTP v Overflow,” which implies that all plant flow is derived from diverted springwater, and no other source contributed to the plant’s output during that period; (2) evaluating the direct measurements provided demonstrates that the spring is the only identifiable source of water every year since 2004, and that its water was diverted in summer months without regard to the amount it was producing; and (3) data from July-August, 2020 demonstrated that spring diversions constituted the entire water supply, despite flows being less than 30 gpm. Based upon these evaluations of the data, he opine that the 1998 MND mitigation condition intended to prevent impacts from water diversion at Las Cruces Spring has not been implemented since at least 2004.
The motion is also supported by the declaration of attorney Cooper, who identifies himself as counsel for CRC, and lists a series of documents he attaches, which he asserts are true and correct copies of (a) a sanitary survey and a water source report, (b) the 1998 MND, (c) the Interagency Agreement, (d) and (e) two water permits, (f) an email chain between State Parks employees, (g) gauging data from the Las Cruces Spring and Water Treatment Plant, and (h) excerpts from a deposition of State Parks’ PMQ.
(b) State Parks’ opposition
State Parks contends that CRC’s entire motion relies on the unsupported allegation that it failed to comply with the 1998 MND for the Water Supply Project. It contends that most of the facts set forth in CRC’s separate statement are immaterial to the requested adjudications. It contends further that CRC has failed to meet its burden to establish that there is no triable issue of material fact as to the causes of action CRC seeks to adjudicate. It asserts that CRC has relied upon inadmissible evidence in an attempt to establish each of the 8 facts material to its argument that the causes of action should be summarily adjudicated, which is fatal to CRC’s motion. Consequently, State Parks has no obligation to present any evidence to show triable issues of material fact. Even if it did, at least three of the facts are in dispute, which is also fatal to the motion.
The 8 material facts which State Parks contends rely upon inadmissible evidence, are Nos. 32 [The Project Operations Standards require “[t]o ensure that coincidence of peak use periods does not adversely impact biological resources in the Hot Springs and Las Canovas Creeks, during the period of July 1 through September 30, the Caltrans well will be utilized at full capacity any time the spring source drops below 30 gpm”]; 40 [The Caltrans Well has not been permitted as a water source for the Las Cruces/Gaviota State Park Water System since at least 2015]; 41 [Parks has not utilized the Caltrans Well water since at least the year 2008]; 42 [Parks has not complied with the 1998 MND since at least 2008]; 43 [The Caltrans Well is listed as inactive beginning in 2008]; 44 [No source other than the Las Cruces Spring has been used at the Water Supply Project since at least 2004]; 45 [In the summer months subject to the 1998 MND restriction that “during the period of July 1 through September 30, the Caltrans well will be utilized at full capacity any time the spring source drops below 30 gpm, the Las Canovas spring was and continues to be diverted without regard [to] projection at the well]; and 46 [Data demonstrate that spring diversions constituted the entire water supply to the Water Treatment Plan [sic], despite its flows being less than 30 gpm at the Las Canovas spring].
Because State Parks contends that the evidence underlying these facts is inadmissible, it concludes that CRC has failed to meet its burden of establishing a prima facie case.
State Parks further contends that three of those eight facts are in dispute. First, Fact No. 40 [The Caltrans Well has not been permitted as a water source for the Las Cruces/Gaviota State Park Water System since at least 2015] relies on a water permit that does not discuss the Caltrans Well. Second, State Parks contends that Fact Nos. 45 [In the summer months subject to the 1998 MND restriction that “during the period of July 1 through September 30, the Caltrans well will be utilized at full capacity any time the spring source drops below 30 gpm, the Las Canovas spring was and continues to be diverted without regard [to] projection at the well]; and 46 [Data demonstrate that spring diversions constituted the entire water supply to the Water Treatment Plan [sic], despite its flows being less than 30 gpm at the Las Canovas spring], are in dispute because the statements underlying CRC’s contentions that all gauging data show that the sole supply of water for the water supply is Las Cruces are so vague as to prohibit drawing that conclusion. Given that the court must strictly construe the evidence of the moving party, and liberally construe that of the opposing party, State Parks concludes that CRC’s evidence is insufficient to support its motion.
State Parks further asserts that CRC’s citations to the deposition of Dena Bellman are immaterial to its argument, and do not establish the absence of a triable issue of material fact. Ms. Bellman was designated as State Parks’ PMQ; three of CRC’s material facts (Nos. 47-49) rely upon her deposition. Those facts are (1) that she was deposed on July 8, 2024, (2) that she testified that the Caltrans Well was connected for a period of time and then “was disconnected because it was adversely affecting the treatment facility,” and (3) that the Caltrans well was disconnected sometime between 2002 and 2004. State Parks contends that while it does not dispute these facts, in and of themselves they do not establish that State Parks violated the requirements of the 1998 MND. None of them support CRC’s assertion that the 1998 MND requires State Parks to use a Caltrans well to supplement diversion from Las Cruces Spring from July 1 to September 30 of each year when the spring’s production drops below thirty gallons per minute and that Parks has failed to do so.
The opposition is supported by the declarations of attorney Wenzlau, which authenticated excerpts of the deposition testimony of Jeffrey Sanchez, Dena Bellman, and David Flora, and attached a copy of a report authored by Jeffrey Sanchez obtained from State Parks’ files.
Sanchez declared further that the primary goal of investigating the hydrologic conditions of the Hot Springs Creek area was to help CDFW evaluate whether the diversion of water from Las Cruces Spring was negatively impacting fish and wildlife resources in Gaviota Creek. His 8-month investigation (3/21—11/21) found no evidence or inference of a rapid and direct hydrologic connection between Las Cruces Spring and Hot Springs Creek or any other creek. He could not conclude that a dispersed and distributed hydrologic connection did not exist, but he observed no evidence of that type of connection. He found no evidence of any impact of the Las Cruces Spring diversion on the fish or wildlife resources in Gaviota Creek or any other creek.
He further declared that during his investigation, substantial changes in the flow and temperature of bypass (spring flow not diverted to the water treatment plant) from Las Cruces Spring were observed, without an identifiable effect on either flow or temperature in the Hot Springs discharge channel or Hot Springs Creek. Distinct differences in water temperature between the relative cold Las Cruces Spring and the relative hot Hot Springs would have led to observable effects in downstream temperatures, including hot Springs Creek, if there were a rapid and direct connection between the Las Cruces Spring and Hot Springs Creek. He found no evidence of such a connection.
He declared that prior to his investigation, that rapid and direct connection had been assumed to exist, for purposes of early measurements and observations, and those measurements and data were relied upon by early internal CDFW memos. His analysis superseded the initial assumption, and instead supported the conclusion that no such rapid and direct connection existed between the Las Cruces Spring and Hot Springs Creek or any other creek. The fact that his on-site measurements and observations taken in the course of his investigation were made in an extremely dry year amplified the potentially observable effects of the water diversion, rather than diminished them, because it would have been more challenging in wetter years to identify whether a specific flow source or contribution originated from Las Cruces Spring or another source. Since no impact of stream diversion on the creek was detectable under low streamflow conditions, when the relative effect of diversion was at its peak, it is less likely that such impact would have been discernable in a wet year when the spring’s potential proportional influence on the stream would have been reduced. Available date on evapotranspiration in the area suggests that any greater bypass from the Las Cruces Spring could be lost to evapotranspiration, and would thus be unlikely to reach downstream surface waters. The rate would be higher during a wetter year, because more moisture would have been available for vegetation uptake.
Finally, Sanchez declared that he stands by the conclusion in his report (attached to Wenzlau declaration).
The opposition is further supported by the declaration of David Flora, who is the Water and Sewer Plant Supervisor at the Gaviota-las Cruces Water Treatment Plant. He declares that water emanating from Las Cruces Spring is diverted into a spring box device, which directs a maxim um of 30 gpm into a 1,000 gallon diversion tank, in order to provide steady head pressure for water system operations. That tank has an overflow valve that bypasses any water in excess of 900 gallons onto the hillslope adjacent to the spring. Water that does not excess through the bypass valve flows on-demand to a 10,000 gallon raw water tank, which is also intended to provide adequate head pressure for system operations. It then flows through the WTP where it undergoes chemical treatment, aeration, and filtration. Following treatment, the water travels to a 94,000 gallon clear well tank to allow adequate contact time for disinfection, and to generate head pressure for distribution.
He and his staff measure Las Cruces Spring flow at the bypass valve, after water has been diverted from the spring and flowed through the spring box. Because the springbox can divert up to a maximum of 30 gpm from the spring, any water emanating from Las Cruces Spring in excess of 30 gpm falls directly onto the hillside, and is neither diverted nor measured. When spring flows exceed 30 gpm, their measurement reflects flow equal to 30 gpm, and is therefore generally an undercount of the spring’s total output, about which data is not collected. Therefore any conclusions about the spring’s total output that are based on State Parks’ data are unreliable and understate total output. The rate at which Parks diverts water from the spring is responsive to the volume of the spring’s output. When output falls, diversion to the WTP is reduced to ensure a constant flow of water from the diversion tank to the bypass valve and then into the trough for wildlife located near the bypass valve. When water is diverted from the spring to the spring box, a fraction is constantly released through the bypass valve and does not proceed to the WTP.
State Parks submitted 41 objections to evidence used by CRC to support its separate statement of material facts.
(c) CRC reply.
CRC asserts that all State Parks needed to do to defeat the motion was to produce evidence demonstrating that it implemented the mitigation measures set out in the 1998 MND, but it has not done so. Rather, the opposition was limited to challenging the authenticity of the evidence CRC relied upon to prove State Parks’ failure to comply with the MND, but the motion relied on documents produced by State Parks and the testimony of its own employees.
CRC contends there is no question Parks is liable for violations of CEQA, the public trust doctrine, and the California Constitution. It conducted environmental review for the Water Supply Project in 1998, and adopted a MND because it identified impacts resulting from that project, including surface water impacts. The mitigation measures were adopted to avoid significant adverse environmental impacts. By its silence, Parks’ opposition establishes that it committed to use the Caltrans Well when spring production drops below 30 gallons per minute, but it failed to do so since at least 2004, which is a failure to comply with the MND. It contends “[t]he Motion should be granted and the requested Writ issued.”
CRC asserts that all evidence relied upon for liability was produced by State Parks and is admissible. CRC had to prove a negative—that State Parks does not use the Caltrans Well to replace cold water flows from Las Cruces Spring—and attempted to do so by requesting documents from State Parks, both in Public Records Act requests and, after filing the action, in formal discovery. The 1998 MND was obtained through the public record request, and was produced by State Parks in response to discovery. CRC notes the supplemental declaration of its counsel, and cites Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1527-1528 for the proposition that perceived authentication issues may be cured up to and including trial, and that an opposing party admit the authenticity of deposition transcripts by using portions of them in their own papers. Further, there is a presumption that public records are what they purport to be, and the MND, well permit, and interagency agreement are self-authenticating signed agency documents. Further, the MND, the interagency agreement, and the gauging data were authenticated by State Parks’ employees during deposition.
CRC asserts further that it has provided multiple lines of admissible evidence demonstrating State Parks’ failure to implement the mitigation measures in the 1998 MND. Its PMQ with respect to compliance with the 1998 MND testified that the Caltrans Well had not been used by or connected the State Parks’ water supply system since 2004. This establishes State Parks’ non-compliance with the mitigation measures. Further, State Parks’ water system has been permitted to use only the Las Cruces Spring for water supply, not the Caltrans well. Its legal inability to use the Caltrans well, as required by the MND, confirms noncompliance with the mitigation measures. Additionally, emails from State Parks’ staff confirm that the Caltrans Well has not been used since 2008, given that the Caltrans well was listed as inactive since 2008. This is a both a party admission and a writing made within the scope of duty of a public employee at or near the time of the act where the information was gathered from objectively reliable sources, overcoming State Parks’ hearsay objection. Finally, analysis of the gauging data collected and produced by State Parks demonstrates that it has used Las Cruces Spring exclusively for water supply since at least 2004, and that diversions at Las Cruces do not change during low flows. While State Parks contends its own average well production number, and states that flows over 30 gpm do not enter the water system and therefore are not gauged, both contentions are irrelevant to the failure to use the Caltrans well when production drops below 30 gpm.
CRC contends that there is no reasonable dispute that the operation standards set forth in the MND are mitigation measures; they were included expressly because “potential impacts to surface water resources and related potential impacts to plants and wildlife can be avoided through the project operation standards described.” It reiterates the law that mitigation measures are not expressions of hope. Once incorporated, they cannot be defeated by ignoring them, and if they become impractical or unworkable the governing body must state a legitimate reason for deleting or altering an earlier-adopted mitigation measure, and support that statement of reason with substantial evidence. The agency must conduct a thorough review of the ongoing necessity for the original mitigation measure. CRC contends that there is no evidence Parks has conducted any further environmental review, and compliance with the mitigation measures is therefore required.
In support of the reply, CRC has submitted the supplemental declaration of its counsel, attorney Cooper, which for the first time provided the authentication necessary to render admissible the exhibits which had been attached to his original declaration submitted in support of the motion, and upon which the motion relied. It further submitted responses to the evidentiary objections interposed by State Parks.
(3) Analysis.
Evidentiary support for the motion The motion, as it was filed by CRC, was woefully inadequate in its presentation of evidence. The motion was supported by the declaration of an expert geologist, who opined on the reason for the mitigation measures set forth in the MND, and the declaration of counsel, who merely attached a series of documents and stated that the documents were “true and correct copies,” without making any effort to properly authenticate the documents, whether by showing his personal knowledge or otherwise.
As noted above, motions for summary judgment or adjudication must be supported by admissible evidence, and supporting and opposing declarations must be made on personal knowledge, showing affirmatively that the declarant is competent to testify as to the matters stated therein. (Code Civ. Proc., § 437c, subd. (d).) Generally speaking, declarations by the attorney for the moving party are sufficient only if the facts stated are matters of which the attorney would be presumed to have knowledge, i.e., matters occurring within the course of the lawsuit. Otherwise, the declaration lacks the personal knowledge requirement for a motion for summary judgment. (See Maltby v. Shook (1955) 131 Cal.App.2d 349, 5351-352; DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 682.) The failure of attorney Cooper’s declaration to show any personal knowledge or other basis for authentication of the documents rendered the motion’s substantive claims largely supported by any admissible evidence.
In opposition to the motion, State Parks objected to much of the evidence submitted in support of the motion, on the entirely correct basis that it was inadmissible.
In reply, attorney Cooper then provided a substantial “supplemental” declaration in support of the motion, wherein he attempted to correct the fatal failure of the initial motion papers to present admissible evidence. In that declaration, he generally described a public records request made by CRC to State Parks, and provided a detailed description of the discovery requests that were propounded and State Parks’ responses thereto, through which various of the documents were produced by State Parks, as well as articulating other aspects of the documents which assist in their authentication. He then concluded with the information that he had reviewed and searched the State Clearinghouse webpage for documents that reflected any evidence that Parks had substituted or modified the 1998 MND mitigation measures consistent with CEQA procedure, and found none, and that none of the other documents CRC received through its PRA request or through discovery reflected or contained any such evidence. (Material Fact No. 50, which related to this information, had merely cited to the clearinghouse website.)
The Court grappled with the practical impacts of CRC’s complete failure to comply with the basic evidentiary requirements for a motion for summary judgment, and attempting to correct the problem at the time of reply. After all, the general rule of motion practice is that new evidence is not permitted with reply papers (see Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn.8), and that while the trial court has discretion to admit reply declarations, it may not be an abuse of discretion for it to decline to do so. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.)
Ultimately, the Court’s resolution of this issue comes down to the fact that while CRC made absolutely no effort to properly authenticate the documents upon which its motion was relying at the time that it filed the motion, none of the documents at issue come as any surprise to State Parks, and each of them had been provided by State Parks through discovery, in one form or another. Further, while State Parks objected to the evidence as inadmissible, it did not limit its opposition to that contention or oppose solely on that basis, and in fact presented additional evidence and arguments in opposition to the motion. Consequently, while the Court could conceivably deny the motion outright as unsupported by any admissible evidence, it has determined that it would be appropriate in this limited circumstance to consider the evidence to the extent it was properly authenticated through attorney Cooper’s supplemental declaration submitted with CRC’s reply papers.
Compliance with CEQA Having determined that it is appropriate for the Court to consider the evidence that was not properly authenticated until CRC submitted its reply papers, and applying the law recited above with respect to mitigation measures imposed during CEQA review, the Court can certainly find that State Parks is currently in violation of CEQA.
First, the Court finds that the 1998 MND’s provision that “to ensure that coincidence of peak use periods does not adversely impact biological resources in the Hot Springs and Las Canovas Creeks, during the period of July 1 through September 20, the Caltrans well will be utilized at full capacity any time the spring sources drops below 30 gpm,” is in fact a CEQA mitigation measure. State Parks imposed the mitigation measure upon itself in adopting the 1998 MND for the Water Supply Project. The Court cannot see any other way to interpret the terms of the MND.
Second, State Parks is neither utilizing the mitigation measure it imposed upon itself in operating the Water Treatment Plant, nor has it instituted any formal CEQA proceedings (in which CRC could participate and be heard) in order to modify or eliminate that mitigation measure.
However, the Court’s preliminary finding, in the course of resolving this motion, that State Parks is in violation of its obligations under CEQA, does not necessarily require that the Court issue the writ sought by CRC.
First, it appeared from evidence presented by CRC itself that the Caltrans Well was disconnected from the Water Supply Project because the because it was adversely affecting the treatment facility. Certainly, if the mineral content or some other aspect of the water from the Caltrans well was harming the water treatment facility, that might give rise to a reason to further explore the viability of the mitigation measure. Certainly, State Parks did not do so at that time, and may need to be compelled to formally address the CEQA mitigation measures it imposed on itself back in 1998, but it would provide significant reason for this Court not to simply issue a writ compelling State Parks to reconnect its water treatment facility to the Caltrans well and use Caltrans well water during the time and in the amounts set forth in the 1998 MND, which could potentially cause great harm to the water treatment plant.
Second, and much more importantly, State Parks presented the declaration and deposition testimony of Jaffrey Sanchez, as well as the report he authored in 2021 when he was asked to undertake a study with respect to State Parks’ diversion of water from the Las Cruces Spring. The decision to undertake that study was apparently made in response to a 2020 complaint which CRC lodged with State Parks with respect to its diversion of water from the Gaviota Creek Watershed. Specifically, Sanchez declared that the primary goal of his investigation of the Hot Springs Creek area was to help the California Department of Fish and Wildlife (CDFW) evaluate whether the diversion by State Parks was negatively impacting fish and wildlife resources in Gaviota Creek.
As a result of Mr. Sanchez’s fairly extensive investigation (as described in his declaration, and in the report which he prepared—and declared that he stood behind—which was attached to the declaration of attorney Wenzlau), he found no evidence or inference that there was any rapid and direct hydrologic connection between Las Cruces Spring and Hot Springs Creek or any other creek, and no evidence of any impact of the Las Cruces Spring diversion on the fish or wildlife resources in Gaviota Creek or any other Creek. Prior to his investigation, such a “rapid and direct connection” had been assumed to exist; his investigation superseded that assumption.
In other words, there is currently evidence that the true nature of the area’s hydrology, including the impact that diversion of water from Las Cruces Spring would have on the wildlife (public trust) resources within Gaviota Creek (particularly during summer months if the Caltrans Well was not used at full capacity when flow from the spring fell below 30 gpm), differs considerably from the information and/or assumptions which supported the imposition of the mitigation measure in the first place, back in 1998. Mr. Sanchez’s investigation, in fact, supports the conclusion that the diversion—even without use of the Caltrans Well in any capacity—has no adverse impact on wildlife resources in Gaviota Creek, including Steelhead.
The CEQA cause of action at issue, alleged in the 24CV02472 petition, prays as follows:
“2. Coastal Ranches Conservancy prays that this Court order State Parks to comply with CEQA and their 1998 Negative Declaration, which contains concrete and specific mitigation to protect sensitive biological resources, or, in the alternative, to implement the Water Supply Project as described in the 1998 Negative Declaration.”
While stated in the alternative, both alternatives appear to this Court to seek the same thing, i.e., to compel State Parks to utilize water from the Caltrans Well pursuant to the terms of the 1998 MND. CRC first requests that the court issue a writ compelling State Parks to comply with the concrete and specific mitigation measures. The concrete and specific mitigation measures set forth in the 1998 MND are for it to use water from the Caltrans Well at full capacity during the summer months, when flow from the Las Cruces Spring drops below 30 gpm. CRC then alternatively seeks a writ compelling State Parks to implement the Water Supply Project “as described in the 1998 Negative Declaration.” Once again, the Water Supply Project, as described in the 1998 Negative Declaration, directed that State Parks use water from the Caltrans Well at full capacity during the summer months, when flow from the Las Cruces Spring drops below 30 gpm. The Court cannot discern any difference, practically or functionally, between the two supposed “alternatives,” which appear to differ only in their semantics.
Under CEQA, State Parks does have a mandatory duty to either comply with the mitigation measures which have been imposed or institute further CEQA proceedings to support the abandonment or modification of those measures. Either alternative would fully comply with State Parks’ CEQA obligations. In light of the evidence currently before it, however, this Court does not believe it has the authority to require State Parks to comply with the mitigation measures simply because State Parks has not to date instituted the further CEQA proceedings related to the abandonment or modification of the mitigation measures. Rather, the most it could do would be to compel State Parks to comply with its CEQA obligations, without specifying the specific alternative through which it could do so. However, that is not the writ that CRC’s petition or motion seeks, and the evidence submitted with respect to Mr. Sanchez’s investigation results creates a triable issue of material fact (Fact No. 18) as to the propriety of simply ordering State Parks’ compliance with the 1998 MND.
For these reasons, the Court will deny the motion for partial summary judgment/summary adjudication of the mandate claim for violation of CEQA, based upon CRC’s failure to meet the burden of establishing its entitlement to issuance of the writ its petition and motion seeks based upon State Parks’ CEQA violations, i.e., to compel State Parks’ compliance with the 1998 MND’s mitigation measures. Rather, resolution of whether issuance of the requested writ is appropriate is a matter for trial, when the Court will be authorized to resolve factual disputes.
B. Public trust doctrine mandate claim.
(1) Public trust doctrine.
While the doctrine evolved primarily around the rights of the public with respect to tidelands and navigable waters, the doctrine is not so limited, and functions as a public property right of access to public trust natural resources for various public purposes, and protects expansive public use of trust property. (Center for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 266 Cal.App.4th 1349, 1360 (Center for Biological Diversity).)
The range of public trust uses is broad, encompassing not just navigation, commerce, and fishing, but the public right to hunt, bathe or swim. (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521.) The concept of a public use is flexible, and accommodates changing public needs. (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434 (National Audubon Society).) Protected public trust uses include preservation of trust lands in their natural state, to serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area. (Id., at pp. 434-435.)
The concept of a public trust over natural resources supports the exercise of the police power by public agencies, and also places a duty upon the government to protect those resources. (Center for Biological Diversity, supra, 166 Cal.App.4th at p. 1365.) The public trust is more than an affirmation of state power to use public property for public purposes, and is an affirmation of the duty of the state to protect the people’s common heritage, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust. (National Audubon Society, supra, 33 Cal.3d at p. 441.) The state therefore has an affirmative duty to take the public trust into account in the planning and allocation of trust resources, and to protect public trust uses whenever feasible. (Id. at p. 446.) The state has a continuing power as administrator of the public trust (National Audubon Society, supra, 33 Cal.3d at p. 440, 445), and has a continuing duty to take public trust uses into account in allocating water resources. (Id, at p. 452.)
There is no set “procedural matrix” for determining state compliance with the public trust doctrine. (Citizens for East Shore Parks v. State Lands Commission (2011) 202 Cal.App.4th 549, 576-577.) However, any action which will adversely affect traditional public rights in trust lands is a matter of general public interest and should therefore be made only if there has been full consideration of the state’s public interest in the matter. Such actions should not be taken in some fragmentary and publicly invisible way. Only with such a safeguard can there be any assurance that the public interest will get adequate public attention. (Zack’s, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1188-1189.)
There is an interplay between environmental review in the regulatory approval process and the mandate of the public trust doctrine. (Citizens for East Shore Parks v. State Lands Commission (2011) 202 Cal.App.4th 549, 577-578, citing Center for Biological Diversity, Inc., supra.)
While compliance with other environmental statutes such as CEQA can serve to fulfill an agency’s trust obligations, it is not also the case that CEQA review of a project involving a public trust use necessarily satisfies the agency’s public trust obligations. (San Francisco Baykeeper, Inc. v. State Lands Commission, supra, 242 Cal.App.4th at p. 241.)
Courts construe the purpose of the trust with liberality, to the end of benefiting all people of the state. (San Francisco Baykeeper, Inc. v. State Lands Commission (2018) 29 Cal.App.5th 562, 578-579 (San Francisco Baykeeper).) Agencies may balance a public trust use against other trust uses, and even authorize a non-trust use so long as it does not impair trust uses. (Id. at p. 579.) When considering an action under the public trust doctrine, neither the public nor the court may assume the task of administering the trust. (Center for Biological Diversity, supra, 166 Cal.App.4th at p. 1368.)
(b) Party arguments and evidence
CRC’s motion for partial summary judgment/summary adjudication of its mandate cause of action for violation of the public trust is based upon its contention that State Parks’ failure to comply with the mitigation measures set forth in the 1998 MND, harms public trust resources (CRC separate statement at No. 59), including Southern California Steelhead, since the Gaviota Creek watershed is one of the few in Southern California that consistently hosts a viable population of steelhead (No. 55), and the Gaviota Creek experiences hot, dry summers which lead to reduced flows and increased temperatures which adversely impact steelhead (Nos. 56—58).
CRC contends that compliance with the public trust doctrine necessarily involves the exercise of discretion by state agencies, and that discretion can be—and was—exercised in the context of CEQA review. It contends that the requirement to use water from the Caltrans Well was included in the 1998 MND to avoid impacts to public trust resources. Therefore, it contends that State Parks’ failure to implement the mitigation measures in the 1998 MND, adopted to mitigate harms to public trust resources through avoiding potentially significant adverse environmental impacts, violates its public trust duty to protect public trust resources, including instream public trust resources such as the Steelhead population.
In opposition to the motion, State Parks acknowledges that CRC’s claim that State Parks has violated its public trust duties is based upon CRC’s contention that State Parks has not implemented the 1998 MND mitigation measures. It is CRC’s contention that this was the only way for it to meet its duties, that brings the cause of action under Code of Civil Procedures section 1085, as a mandatory duty. It is the only viable argument for CRC because State Parks’ duties are ordinarily discretionary; CRC argues that having chosen to exercise its discretion through compliance with the 1998 MND, State Parks must now maintain that choice.
CRC’s reply does not separately address State Parks’ public trust duties, other than a brief statement that because State Parks has confirmed that the Caltrans Well is not connected, permitted, or utilized by Parks as required by the 1998 MND, the Court should determine that it is in violation of CEQA, its public trust duties, and the Constitution duty to prevent waste and unreasonable use of water.
(c) Analysis.
CRC’s position with respect to this claim is highly dependent upon its contention that State Parks violated CEQA by its failure to implement and/or maintain use of the mitigation measures set forth in the 1998 MND, specifically the water supply system’s use of water from the Caltrans Well during the summer months when the flow from the Las Cruces Spring falls below 30 gpm, and that State Parks fulfilled its public trust duties when it evaluated the environmental impacts of the water supply project and implemented this mitigation measure back in 1998. That position is, in turn, dependent upon the contention that, once exercised, State Parks’ public trust duties were fully established, complied with, and forever locked in time, and doing anything other than complying with the mitigation imposed by the 1998 MND would—forever and for all time—constitute a violation of State Parks’ public trust obligations.
These contentions conflict with several basic tenets of the public trust doctrine, including that an agency’s public trust duties are continuing and ongoing (National Audubon Society, supra, 33 Cal.3d at p. 440, 445, 452), and that the public trust doctrine is flexible in order to accommodate changing public needs. (Id. at p. 434.)
Indeed, CRC’s FAP in Case No. 22CV02818 expressly alleges that (a) the pivotal fact in determining whether there has been a violation of the public trust with respect to the diversion or extraction of water is not whether water has been diverted or extracted, or that the water itself is adversely impacting the water within the public trust, but the impact of the activity on the public trust resource (FAP § ¶ 58-59), and (b) the State always retains the power to reconsider allocation decisions made after due consideration of their effect on the public trust. (FAP § ¶ 63.)
As the Court noted in its discussion of the CEQA cause of action related to the failure to comply with the mitigation measures set forth in the 1998 MND, evidence has been presented to the Court that would suggest—or at a minimum create a triable issue of material fact—that State Parks’ initial evaluation of the potential adverse environmental impacts of the Water Supply Project, in which it engaged back in 1998 or before, may have been based upon the erroneous assumption that the failure to use water at full capacity from the Caltrans Well for the water supply project during the hot and dry summer months when the flow from the Las Cruces Spring fell below 30 gpm, would have adverse impacts on downstream plant and wildlife resources (including the Steelhead population). Indeed, there is evidence before the Court that the more recent investigation conducted by CDFW in 2021 (following State Parks’ 2020 receipt of a complaint from CRC), would support the conclusion that there is no evidence of any impact of the Las Cruces Spring diversion on the fish or wildlife resources in Gaviota Creek or any other Creek which, if true, requires the conclusion that the failure to use water from the Caltrans Well at full capacity during the summer months when flow from the Las Cruces Spring fell below 30 gpm, also would not have any impact on the fish or wildlife resources, including the Steelhead population, in any downstream creek. This would provide no basis for a finding that State Parks has violated its public trust duties, or any basis upon which to issue a writ compelling State Parks to comply with the mitigation measures set forth in the 1998 MND.
The Court simply cannot find, as a matter of law on undisputed facts (as is required for a motion for partial judgment under Code of Civil Procedure section 1094, or a motion for summary adjudication of the public trust cause of action under Code of Civil Procedure section 437c(f)), that State Parks’ failure to comply with the mitigation measures set forth in the 1998 MND constitutes a violation of its obligations to protect public trust resources. Rather, this is a matter that must be resolved at trial, at which time the Court will have the authority to resolve factual disputes.
Further, as noted above, issuance of a writ simply compelling State Parks to comply with the mitigation measures set forth in the 1998 MND, rather than the writ the Court contemplated in resolving the claim for violation of CEQA (compelling State Parks to comply with its CEQA obligations, without directing whether that compliance should be through compliance with the 1998 MND, or institution of further CEQA proceedings to evaluate and support the elimination or modification of the 1998 MND’s mitigation measures), would potentially constitute an impermissible administration of the public trust by the trial court.
For all of these reasons, the Court will deny CRC’s motion for partial judgment (Code Civ. Proc., § 1094) and/or summary adjudication (Code Civ. Proc., § 437c(f)) of its cause of action in mandate for violation of the public trust.
B Constitutional prohibition against the unreasonable use of water mandate claim.
(1) Constitutional requirement, and CRC’s contention.
CRC contends that the failure to implement the mitigation measures required by the 1998 MND constitutes an unreasonable use of water. (CRC separate statement at No. 60.) CRC contends State Parks considered impacts to instream resources resulting form the water diversion at Las Cruces Spring, mitigated those impacts, and made the mitigations mandatory through adoption of the 1998 MND, and State Parks’ failure to implement those mitigation measures violates its constitutional duty to prevent the unreasonable use of water.
CRC’s reply does not separately address the Constitutional prohibition against the unreasonable use of water, other than a brief statement that because State Parks has confirmed that the Caltrans Well is not connected, permitted, or utilized by Parks as required by the 1998 MND, the Court should determine that it is in violation of CEQA, its public trust duties, and the Constitution duty to prevent waste and unreasonable use of water.
(2) Analysis
Once again, the Court simply cannot find, as a matter of law on undisputed facts (as is required for a motion for partial judgment under Code of Civil Procedure section 1094, or a motion for summary adjudication of the cause of action under Code of Civil Procedure section 437c(f)), that State Parks’ failure to comply with the mitigation measures set forth in the 1998 MND constitutes a violation of its Constitutional obligation to prohibit the unreasonable use of water. Rather, this is a matter that must be resolved at trial, at which time the Court will have the authority to resolve factual disputes.
Certainly, in imposing the mitigation measures set forth in the 1998 MND, State Parks at that time likely conducted an evaluation of whether its use of water in that manner was reasonable and beneficial overall, and was reasonable and beneficial upon imposition of the mitigation measures. Evidence before the Court has now presented a triable issue of material fact with respect to whether the conclusions made by State Parks in 1998 are the only conclusions which could ever be made with respect to whether the use of water for the water supply project, either with or without full capacity use of water from the Caltrans Well during the summer months when flow from Las Cruces Spring falls below 30 gpm, is either reasonable or unreasonable.
Particularly given that an assessment of an agency’s obligation to use water reasonably and beneficially is dependent upon the circumstances, may change over time, may differ in times when water is scarce from times when water is plentiful, cannot be determined without considering the effect of water usage on all the needs of those in the stream system, and cannot be determined in isolation from other statewide considerations, and necessarily involves an agency’s exercise of discretion, the circumstances before the Court cannot support the summary issuance of a writ pursuant to Code of Civil Procedure section 1085 (compelling an agency to comply with a mandatory duty, as defined above).
For these reasons, the Court will deny the motion for summary judgment pursuant to Section 1094, and/or summary adjudication pursuant to Section 437c(f), of CRC’s cause of action for State Parks’ violation of its Constitutional duty to use water reasonably and beneficially.
4. CRC’s Requested Adjudication that it has Standing to Pursue its Petitions.
As noted above, when answering the FAP in Case No. 22CV02818, and 24CV02472, State Parks asserted as an affirmative defense (Affirmative Defense No. 10 in both answers) that CRC lacked standing to pursue its petitions. It then moved for judgment on the pleadings in Case No. 22CV02818, contending, among other things, that CRC lacked standing to pursue that petition.
In ruling on that motion, this Court found that the allegations of the petitions did not state sufficient facts to support the conclusion that CRC had beneficial interest standing to pursue their claims, but that the petitions did, in fact allege sufficient facts to support the conclusion that CRC had public interest standing to pursue its claims.
CRC has now moved to summarily adjudicate the issue of its standing. While its motion also, improperly, does not articulate the basis for the motion, in terms of establishing it as a proper subject for summary adjudication, the motion can be construed as seeking to adjudicate that there is no merit to State Parks’ Affirmative Defense No. 10, that CRC lacks standing to pursue its petitions. (See Code Civ. Proc., § 437c(f)(1).) As such, the matter is a permissible subject of the current motion, in spite of the fact that the motion never mentions State Parks’ Answers to the petitions, nor their assertions of Affirmative Defense No. 10, and only refers to the term “affirmative defense” in passing in citing Section 437c(f)(1). (Motion at p. 6, lines 9-12.)
A. Beneficial interest standing.
The standard is equivalent to the federal “injury in fact” test, which requires a party to prove by a preponderance of the evidence that it has suffered an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. (Associated Builders and Contractors, Inc. v. San Francisco Airports Commission (1999) 21 Cal.4th 352, 362.) The petitioner’s interest in the outcome of the proceedings must be substantial, and a writ will not issue to enforce a technical, abstract, or moot right. (Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 87.) The petitioner must show that his legal rights are injuriously affected by the action being challenged. (Ibid.) The petitioner must show that it will obtain some benefit from the issuance of the writ, or suffer some detriment from its denial. (Waste Management v. County of Alameda (2000) 79 Cal.App.4th 1223, 1233, overruled on other grounds in Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 160.)
B. Public interest standing.
Where the question is one of public right, and the object of mandamus is to procure the enforcement of a public duty, a petitioner need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. (Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 166.) This “public right/public duty” exception to the requirement of beneficial interest for a writ of mandate promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. (Ibid.) This variety of standing is referred to as public interest standing (Ibid), or citizen standing. (Citizens for Amending Proposition L, supra, 28 Cal.App.5th at p. 1174.) The exception promotes the policy of guaranteeing citizens an opportunity to ensure that the purpose of the legislation establishing a public right is not thwarted by the public agency. (Green v. Obledo (1981) 29 Cal.3d 126, 144.)
The interest of a citizen may be considered sufficient when the public duty is sharp and the public need weighty. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1236, disapproved on other grounds by Save the Plastic Bag Coalition, supra, 52 Cal.4th at pp. 169-170.) The courts balance the applicant’s need for relief (i.e., his beneficial interest) against the public need for enforcement of the official duty. When the duty is sharp and the public need weighty, the courts will grant a mandamus at the behest of an applicant who shows no greater personal interest than that of a citizen who wants the law enforced. (Citizens for Amending Proposition L v. City of Pomona, supra.) Determining whether the public interest exception to the beneficial interest requirement is warranted thus involves a judicial balancing of interests, and the balancing is done on a sliding scale, i.e., when the public need is less pointed, the courts hold petitioner to a sharper showing of personal need. (Ibid.) The trial court may also find public interest standing outweighed by competing considerations of a more urgent nature, and a petitioner is not entitled to pursue a mandamus petition under the public interest exception as a matter of right. (Ibid.)
What is meant by a “sharp” public duty, and a “weighty” public need, does not appear to have been precisely defined, and has been subject to interpretation. Public interest standing has been found when it is shown that (1) an alleged breach of an important public duty is involved; (2) the persons who are beneficially interested in the action would find it difficult to vindicate their own rights; and (3) the petitioner asserts a special interest in protecting the rights of the beneficiaries of the public duty or has demonstrated a commitment to the subject matter of the right being asserted. (Practice Under the California Environmental Quality Act (2nd ed. Cal. CEB), § 23.6.)
Indeed, particularly in CEQA cases, where a public right is involved, and the object of the writ of mandate is to procure enforcement of a public duty, it is sufficient that as a citizen the petitioner is interested in having the public duty enforced, a relaxed standard of standing generally applies, in which a property owner or taxpayer who establishes a geographical nexus with the site of the challenged project has standing. (Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 158, citing Bozung v. LAFCO (1975) 13 Cal.3d 263, 272.) While Bozung was a pleading case, Citizens Association was not. Additionally, in Environmental Protection Information Center v. Department of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479-480, the California Supreme Court found that a labor union had public interest standing to bring CEQA claims, in part based upon its long-standing involvement in environmental and sustainability issues.
C. Standing to raise a claim of harm to the public trust.
As this Court noted above in its discussion of the Public Trust Doctrine, while the interests encompassed by the public trust are protected by public agencies acting pursuant to their police power and explicit statutory authorization, the public retains the right to bring actions to enforce the trust when the public agencies fail to discharge their duties. (Center for Biological Diversity, supra, 166 Cal.App.4th at p. 1366.). Any member of the general public has standing to raise a claim of harm to the public trust. (National Audubon Society, supra, 33 Cal.3d at p. 431, fn. 11; Marks v. Whitney (1971) 6 Cal.3d 251, 261-262.)
D. Party arguments and evidence
CRC has sought an adjudication that it has standing to bring the writ petition, arguing in its motion that it has established both beneficial interest standing [Motion @ 18:3—19:6] and public interest standing. [Motion @ 19:7-15.] Its separate statement of material facts does not differentiate between the theories, and simply identifies a requested adjudication that “Coastal Ranches Conservancy Has Standing to Bring this Action,” setting forth 16 separate facts in support of the adjudication. It further contends that there is no reasonable dispute that it has standing to enforce public trust duties, citing Center for Biological Diversity, Inc. v. FPL Group, Inc., supra, and National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 (Audubon).
In asserting that it has beneficial interest standing to pursue its petitions, CRC refers to the 16 facts, contending that they document the “particularized and actual injuries to the financial, environmental, and aesthetic interests in Gaviota Creek.” The separate statement facts address the personal and professional interests in the Gaviota Coast area of three of its members, Doug Campbell, Kim Kimball, and Candice Meneghin, supported by the declarations of each.
In contending that the members have beneficial interests in the watershed well beyond that of the general public, the motion points to specific sections of the declarations. The Campbell declaration discusses his positions on the CRC board, on which he has served since 2007; identifies the general nature of other CRC members, discusses his residence on the Gaviota Coast, including fishing in the creek as a boy, and camping at the state beach; how he organized a rescue of trapped steelhead in 2018, and observed the creek completely dry out through the drought years; and his outrage and distress at State Parks’ choice to supply water to the campground without leaving sufficient flows for steelhead.
The Kimball declaration sets forth his position as board chair of CRC; that he has driven across Gaviota Creek for more than 50 years to access his Hollister Ranch property; that his law firm was hired in the 1970s to write the Hollister Ranch CC&Rs, which included language recognizing the beauty and resources of the area, and articulating owners’ obligations to use and develop their property in a manner that protects the resources; that he chaired the Gaviota Planning Advisory Committee, which developed the Gaviota Community Plan, during the development of which he learned how important the watersheds of the Gaviota Coast are, and that the Gaviota Creek is “the best of all local creeks” for endangered steelhead spawning; and how he has learned more about the condition of the creek and its water sources since being on CRC’s board, and sees the solutions to the challenges as obvious, in requiring that the state agencies causing impacts to the creek’s water sources and physical profile to abide by the law and stop their diversion of its principal water source and remove artificial barriers in the creek.
The Meneghin declaration sets forth her position as Executive Director of CRC, and that she has been involved in efforts to restore the Gaviota Creek watershed since 2017, first as an unpaid advisor and then as a paid consultant, and ran a series of stakeholder meetings that resulted in Caltrans agreeing to initiate the scoping of a project to remove fish passage barriers on Gaviota Creek; that she has been a biodiversity conservationist and practitioner for 20 years, and played an “active role” in steelhead recovery since 2011; that she currently manages a watershed restoration grant program for fish passage remediation on the Santa Clara River watershed; and her dismay that a state agency mandated to protect threatened biodiversity would undermine their responsibility to protect natural resources, local fish and wildlife, and the lands and waters upon which they depend, by ignoring or circumvent mitigation requirements.
In asserting that it has public interest standing, CRC’s motion argues that it has a weighty public interest in State Parks’ compliance with the 1998 MND, the Public Trust Doctrine, and Article X, Section 2 of the Constitution, and that its members have a public interest in protecting public trust resources in the Gaviota Creek watershed.
State Parks’ memorandum of points and authorities in opposition to the motion contains no argument or authorities related to the standing issue. Its responsive separate statement, however, disputes several of the material facts based upon its contention that the evidence submitted in support of the material fact is inadmissible. [Opposition separate statement @ Material Fact Nos. 2, 11, 12, 14, and 16; Objection to Evidence @ Nos. 1, 2, 3, 4, and 41.]
In its Reply, CRC contends that this Court, in ruling on State Parks’ motion for judgment on the pleadings, “ruled that Coastal Ranches has public interest standing.” It then asserts that it believes that State Parks’ disputes over CRC’s evidence going to standing are moot, and that the declarations of its members are direct testimony as to the harms they have suffered as a result of State Parks’ “non-compliance.”
E. Analysis.
While the Court cannot find that the evidence presented by CRC is sufficient to establish beneficial interest standing, it finds that CRC has established both public interest standing and standing to pursue claims of harm to the public trust. For that reason, the Court will grant the motion to summarily adjudicate that State Parks’ Affirmative Defense No. 10 is without merit.
(1) Beneficial interest standing.
CRC has attempted to establish beneficial interest standing through the declarations of the three board members, who assert interests such as living in them Gaviota Coast area, recreating in the area, recognizing the beauty and resources of the area, having an interest in steelhead spawning in the creeks, learning about the importance of the watershed, involvement in unspecified efforts to restore the Gaviota Creek watershed area, and their personal outrage at State Parks for not following the mitigation measures set forth in the 1998 MND. As such, CRC contends that its members have an interest in the or right to be preserved or protected over and above the interest held in common with the public at large.
Their interest may be more personally held than that of the general public, given their residence in the area, use of the area, and interest in the area, but it does not appear to this Court to differ in nature than that of the general public in the preservation of natural resources. The authorities cited above—including those relied on by CRC to support its claim of beneficial interest standing—state that the standard for beneficial interest standing is equivalent to the federal “injury in fact” test, which requires a party to prove by a preponderance of the evidence that it has suffered an invasion of a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical, and involve a showing that the petitioner’s legal rights are injuriously affected. The abstract nature of the interests in the subject matter shown by the declarations does not appear to the Court to meet that standard—and CRC’s motion nowhere provides any authority or makes any argument from which this Court could conclude that the interests it has articulated are sufficient to meet that standard.
For that reason, the Court cannot find that CRC has met the requirements to establish that it possesses beneficial interest standing sufficient to support a finding that there is no merit to State Parks’ Affirmative Defense No. 10.
(2) Public interest standing.
As noted above, the court only reaches the issue of public interest standing, if beneficial interest standing has not been shown to exist. Having found that the CRC does not meet the requirements for beneficial interest standing, the Court will therefore analyze whether it meets the requirements for public interest standing.
Under public interest standing, the interest of a citizen in having the laws executed and the duty in question enforced may be considered sufficient when the public duty is sharp and the public need weighty. (See, Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1236, disapproved on other grounds by Save the Plastic Bag Coalition, supra, 52 Cal.4th at pp. 169-170.) Further, as noted above, under somewhat relaxed standards of public interest standing applicable to claims for environmental harm, including under CEQA, a property owner or taxpayer who establishes a geographical nexus with the site of the challenged project generally has standing.
The declarations of its members submitted by CRC in support of the motion adequately establish the interests involved, and the required geographical nexus with the site of the challenged project, such that CRC’s motion meets its initial burden to establish its entitlement to an adjudication that Affirmative Defense No. 10 has no merit.
State Parks’ opposition papers do not address the standing argument. Rather, its opposition is limited to the assertion of limited objections to matters set forth in the declarations of the CRC members. While it is not true that this Court “found” that CRC absolutely has standing in its ruling on the State Parks’ earlier motion for judgment on the pleadings, as contended by CRC (a motion for judgment on the pleadings only assesses the sufficiency of the allegation of the pleading, which then must be proven at trial or on dispositive motion), the evidence submitted by CRC is sufficient to meet the relaxed standard of standing applicable in cases such as this one—even without reference to the objected-to statements in the member declarations.
As a result, the Court finds that CRC’s motion has met its burden of showing that it has public interest standing to pursue its claims. Because State Parks has failed to establish a triable issue of material fact with respect to the evidence submitted by CRC in support of the motion, the motion to summarily adjudicate that State Parks’ Affirmative Defense No. 10 is without merit must be granted.
(3). Standing to raise claims of harm to the public trust
The courts of California appear to have established a special rule of standing applicable to claims of harm to the public trust, and have established that any member of the general public has standing to raise a claim of harm to the public trust. (National Audubon Society, supra, 33 Cal.3d at p. 431, fn. 11; Marks v. Whitney (1971) 6 Cal.3d 251, 261-262.) In effect, it appears to this Court that the special rule could be an offshoot of public interest standing, wherein every member of the public inherently possesses in interest in preserving public trust resources, and claims by a member of the public which assert harm to the public trust are, in and of themselves, sufficient to support the conclusion that the public duty is inherently sharp and the public need is inherently weighty.
Certainly, CRC has standing by this rule to pursue its cause of action which contends that State Parks’ failure to utilize Caltrans water pursuant to the terms of the 1998 MND is a violation of the public trust, and harms public trust resources.
(4). Summary conclusion.
While this Court could not find that CRC’s motion established that it has beneficial interest standing, its showing was sufficient to establish both public interest standing and standing to assert a harm to the public trust. Consequently, the Court will grant the motion and will summarily adjudicate in CRC’s favor that Affirmative Defense No. 10 (that CRC has no standing to assert its causes of action and claims for relief), found in State Parks’ answers to each petition, has no merit.
5. Evidentiary objections
To the extent that evidentiary objections were not expressly addressed in this analysis, they were unnecessary and irrelevant to the Court’s decision.