Successfully navigating CEQA litigation has been compared to walking a tightrope – myriad issues challenging an EIR can be (and often are) raised, and a “misstep” as to even a single one typically results in the court’s issuance of a writ decertifying the entire EIR and vacating the project approvals pending future CEQA compliance. Fortunately, however, CEQA litigation can also be like a funnel, with its beginning at the top and its end at the bottom: while many issues and challenges to an agency’s EIR can initially be raised, their subsequent final adjudication on the merits through a limited peremptory writ of mandate – one granting in part and denying in part a writ petition – serves to progressively eliminate and narrow the issues at play in any future litigation. This is a result of the doctrine of res judicata (or claim preclusion), and a textbook example of that doctrine’s application in the CEQA litigation context can be found in the Third District’s recent partially published opinion in Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador (Newman Minerals, LLC, et al., Real Parties in Interest) (2019) 33 Cal.App.5th 165. (The opinion was filed February 26, but later modified and certified for partial publication on March 20, 2019.)
The facts are straightforward. Petitioner LAWDA challenged Amador County’s 2012 EIR for an approval of the Newman Ridge Quarry Project, which is comprised of a 278-acre quarry from which 5 million tons of rock will be annually extracted for 50 years, and related processing and transportation facilities on another 113 acres. LAWDA’s first writ petition challenged the EIR based on alleged inadequate analysis and mitigation of air pollution, water supply, water quality, and traffic and circulation impacts; failure to recirculate the DEIR; failure to adequately consult with trustee and responsible agencies; failure to support the statement of overriding considerations with substantial evidence; and inadequate responses to comments. In 2014, the trial court granted the petition, in part, as to traffic-related EIR deficiencies only, and denied it as to all the other claims. As is typical, the trial court’s ruling required County to decertify the EIR, vacate the project approval, recirculate the revised DEIR (relating to traffic issues only), decide anew whether to certify the revised EIR and reapprove the project, and file a return demonstrating compliance with the writ.
In response to the trial court’s ruling on LAWDA’s first petition, the County chose to comply with the writ and did not appeal: it vacated the EIR certification and project approval, circulated for public comment a partially recirculated EIR pertaining only to traffic issues, certified that EIR, and reapproved the project, filing returns with the court evidencing the same. The trial court granted the County’s motion to discharge the writ in 2015, but in the meantime LAWDA (which did not appeal, either) filed a second writ of mandate petition challenging the County’s certification of the partially recirculated EIR and project approval. In what must have seemed to the County and real parties as a case of déja vu, the second petition alleged claims of EIR deficiency in the areas of: (1) water supply and quality; (2) traffic and circulation; (3) biological resources; (4) air pollution; (5) mitigation measures; (6) failure to recirculate the entire EIR; (7) inadequate evidence supporting overriding considerations; and (8) inadequate responses to public comments, inter alia.
After further litigation, the details of which are unclear (due to LAWDA’s failures to request a statement of decision or provide reporter’s transcripts), the trial court denied the second petition without stating reasons.
The Court of Appeal affirmed the order denying the second petition. Key holdings and takeaways from the published portion of its opinion include:
- “Res judicata bars all of LAWDA’s objections to the partially recirculated EIR certification and project approval, except for those issues arising from the partially certified EIR concerning traffic impacts, because the remaining issues were litigated and resolved, or could have been litigated and resolved, in connection with the first petition and the writ of mandate did not require the County to revisit issues other than traffic impacts.”
- The Court cited as similar the case of Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 324-327, in which the writ issued on the merits by the trial court became final even though that court retained jurisdiction under Public Resources Code § 21168.9(b) until the City complied with the writ; the Court of Appeal there affirmed the trial court’s denial of petitioners’ second writ petition based on res judicata because its claim that the EIR should have disclosed significant water supply impacts was one that could have been raised in the first petition, and was based on the same conditions and facts in existence when the original action was filed.
- Per the Citizens for Open Government court’s summary of the doctrine: “Res judicata or claim preclusion bars relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. Res judicata applies if the decision in the prior proceeding is final and on the merits and the present proceeding is on the same cause of action as the prior proceeding. Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated.” ( Id. at 324, citations omitted.) Further, to avoid application of the doctrine, any alleged “different conditions and facts must be ‘material.’” (Id. at 325.)
- Applying these res judicata principles, the Court of Appeal noted that “the trial court’s writ of mandate directed the County to revisit only the 2012 EIR’s traffic impacts analysis[,]” and that it denied LAWDA’s first petition in all other respects, yet LAWDA raised both traffic and non-traffic issues in the second petition. Per the Court: “[LAWDA’s] contentions are barred by res judicata because they were, or could have been, raised in LAWDA’s first petition.”
- The Court rejected LAWDA’s argument that all issues were in play, and that it could challenge all EIR elements, because the County vacated its certification of the entire 2012 EIR, as ordered by the trial court. Regardless of the fact that Public Resources Code § 21168.9 allows for partial decertification of an EIR, LAWDA’s argument failed to overcome the res judicata effect of the trial court’s order on the first petition; it failed “because whether the EIR has been decertified does not alter the fact that the sufficiency of a component of the EIR has been litigated and resolved.” (Citing Citizens for Open Government, 205 Cal.App.4th at 302.)
- The Court further dispensed with LAWDA’s contention that res judicata could not apply because it was not an aggrieved party who could appeal the order granting the first petition. Not so, held the Court, since LAWDA’s contention in this regard “does not account for the trial court’s partial denial of the writ of mandate. Because the trial court rejected LAWDA’s arguments regarding aspects of the EIR other than traffic impacts and denied the petition as to those aspects of the EIR, thus rejecting the attempt to have the County reconsider those other impacts, LAWDA was aggrieved and could have appealed.”
- In summing up its holdings on the published portion of its opinion dealing with the application of res judicata, the Court of Appeal stated: “We conclude the County was not required to revisit impacts or issues other than traffic impacts because the trial court’s writ of mandate only required recirculation of the EIR as to traffic impacts. Consistent with CEQA, . . . [citation omitted] [t]he trial court’s limited writ of mandate in this case did not require the court to revisit issues other than traffic impacts. [¶] We further conclude that all issues LAWDA seeks to raise on appeal are precluded except those having to do with traffic impacts because the remaining issues were litigated, or could have been litigated, in the prior proceeding and because the writ of mandate only required further action as to traffic impacts.”
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.