1 REMY MOOSE MANLEY, LLP

HOWARD F. WILKINS III, SBN 203083

2
JENNIFER S. HOLMAN, SBN 194681
3 555 Capitol Mall, Suite 800
Sacramento, CA 95814
4 Telephone: (916) 443-2745
Facsimile: (916) 443-9017
5
Email: [email protected]
6
[email protected]

EXEMPT FROM FILING FEES

[GOVERNMENT CODE 6103]

Attorneys for Petitioner and Plaintiff

8 MARINA COAST WATER DISTRICT
9
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO

10

11

12

MARINA COAST WATER DISTRICT, and

DOES 1-10,

13

Petitioner and Plaintiff,

14
15

PETITION FOR WRIT OF MANDATE

and COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF

v.

16

17

Case No.:

CALIFORNIA COASTAL COMMISSION,

and DOES 11-50,

18

Respondents and Defendants.

(C.C.P. 1094.5 (1085); California

Environmental Quality Act ("CEQA"))
Filing Date of Action:
November 24, 2014

19

20
21

CALIFORNIA-AMERICAN WATER
COMPANY, a California water corporation,
and DOES 51-100,

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Petitioner and Plaintiff Marina Coast Water District ("MCWD" or the "District") alleges

2 as follows:
INTRODUCTION

This action challenges the decisions of the Respondent and Defendant California Coastal

5 Commission ("Coastal Cmmnission" or "Respondent") to approve two Coastal Development

6 Permits ("CDPs") for Real Party in Interests California American Water Company's ("Cal7 Am") Slant Test Well Project ("Project") in the City of Marina, California. First, MCWD seeks
8 declaratory and injunctive relief, vacating and setting aside the Coastal Cmmnission' s decision
9 that it has appellate jurisdiction under the Califomia Coast Act ("Coastal Act") over the City of
10 Marina's denial of a CDP for the Project (Appeal No. A-3-MRA-14-0050), when the City's
11 denial was "without prejudice" pending compliance with the California Enviromnental Quality
12 Act ("CEQA"). Second, MCWD seeks declaratory and injunctive relief, vacating and setting
13 aside the Coastal Cmmnission' s decision it has jurisdiction under the Coastal Act to approve a
14 separate but related CDP for the Project where it had no evidence that the Cal-Am had an
15 interest in the land, which is held in public trust by the State of California (Application No.916 14-1735). Alternatively, MCWD seeks a writ of mandate and declaratory and injunctive relief,
17 vacating and setting aside both CDPs on the grounds that the Coastal Conm1ission's decision to
18 approve these permits violated numerous laws, including the Coastal Act and CEQA, and
19 thereby prejudicially abused its discretion.
20
21

PARTIES

1.

MCWD is a municipally owned water district established in 1960 to provide

22 potable water service to all residential, conunercial, industrial, enviromnental, and fire
23 protection uses in the then unincorporated connnunity of Marina. The City of Marina
24 incorporated in 1975, but MCWD remained separate public agency. The District also provides
25 potable water delivery and wastewater conveyance services within the boundaries of the former
26 Fort Ord Army Base, known as the Ord Conununity. MCWD serves approximately 30,000
27 residents in its Marina and Ord Community service areas, who rely on MCWD for their
28 domestic drinking water. MCWD holds an interest in the property that is the subject of the CDPs
1
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 issued by the Coastal Commission. The District, as well as it 30,000 residential and conunercial
2 customers, would be material injured by the activities that were approved in the Coastal
3 Development Permits.
4

2.

Petitioner is unaware of the true names and capacities of Petitioners and Plaintiffs

5 fictitiously named herein as Does I through I 0, inclusive. Petitioner is informed and believes,
6 and thereon allege, that such fictitiously named Petitioners and Plaintiffs are beneficially
7 interested in the Coastal Cmmnission's compliance with its mandatory duties under Coastal Act
8 and CEQA before approving the Project, and that such Petitioners and Plaintiffs adequately
9 participated in the Cmmnission's administrative review process for the Project to have standing
10 to be joined as Petitioners and Plaintiffs in this proceeding. Petitioner will amend this Petition,
11 with leave of the court if necessary, to allege the fictitiously named Petitioners' and Plaintiffs'
12 true names and capacities when ascertained.
13

3.

Respondent California Coastal Conunission is the state administrative body

14

authorized to enforce the California Coastal Act. (Pub. Resources Code, 30000, et seq.) The

15

Cmmnission may sue and be sued. (Pub. Resources Code, 30334.)

16

4.

MCWD is unaware of the true names and capacities of Respondents fictitiously

17

named DOES 11 tlnough 100, and sues such respondents by fictitious names. Petitioner is

18

informed and believes, and on the basis of such infonnation and belief, alleges the fictitiously

19

named respondents are also responsible for the actions described in this Petition. When the true

20

identities and capacities of these respondents have been determined, Petitioner will amend this

21

petition, with leave of the court if necessary, to insert such identities and capacities.

22

5.

Real Parties in Interest California-American Water Company is a water

23

corporation as defined in Public Utilities Code section 241 and is regulated by the California

24

Public Utilities Commission ("CPUC"). Cal-Am is not a public entity, but a wholly owned

25

subsidiary of American Water, the largest investor-owned water and wastewater utility

26

company in the United States. American Water has its headquarters in Voorhees, New Jersey.

27
28

6.

MCWD is unaware of the true capacities of Real Parties in Interest Does 51

through 100, and sues such real parties in interest by fictitious names. Petitioner is informed
2

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

and believes, and based on such information and belief, alleges that the fictitiously named real

parties in interest are directly and materially affected by the actions described in this Petition

and Complaint. When the true identities and capacities of tl1ese real parties in interest have

been determined, Petitioner will amend this Petition, with leave of the court if necessary, to

insert such identities and capacities.

JURISDICTION AND VENUE

6
7

7.

This Court has jurisdiction over this action pursuant to Code of Civil Procedure

8 sections 526, 526A, 1060, and 1094.5, as well as Public Resources code sections 21080.5,

9 21168, 30801, 30803, and 30804. Alternatively, this Com1 has jurisdiction under Code of Civil

10 Procedure section 1080 and Public Resources code section 21168.5.

II

8.

Venue is proper in the Superior Court of Sacramento County.

12

9.

While venue would be proper in the Superior Court of Monterey County, because

13

this action is brought by a public agency located in Monterey County against the State of

14 Califomia (Code Civ. Pro., 394), venue is also proper in the Superior Comt of Sacramento
15 County under Govemment Code Section 955.3 and Code of Civil Procedme section 401. The
16
latter provision states that whenever an action or proceeding may be removed to the County of
17

18
19

Sacramento, the same action may be c01mnenced and tried in the County of Sacramento (or any
city in which the Attorney General maintains an office). (Code ofCiv. Pro. 401.) Here, even
if the action had been c01mnenced in Monterey County, the Attorney General may, on behalf of

20
the State, have moved to change the place of trial for this Action to Sacramento County. (Gov.
21
22
23
24
25

Code 955.3) Expeditious resolution in this case is critical. To avoid any potential delay
caused by removal of tllis action allowed by the Government Code, MCWD brings this action in
the Superior Comt of Sacramento County. (See also Pub. Res. Code 30806 [change of venue
for actions brought by or against local district under the Coastal Act].)
LEGAL BACKGROUND

26
27

28

10.

Under the Coastal Act, development in the coastal zone generally requires a CDP.

The Coastal Commission has original jmisdiction to issue CDPs unless the local govermnent
3
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

has a certified Local Coastal Program ("LCP"), in which case the local govermnent has original

permit jurisdiction. (Pub. Resources Code, 30519, subd. (a), 30604, subd. (b).) In

authorizing the certification of LCPs, the Legislature recognized the need to "rely heavily on

local govermnent and local land use planning procedures" in order to "achieve maximum

responsiveness to local conditions." (Pub. Resources Code, 30004, subd. (a).) The Coastal

Cormnission's reserved jurisdiction to issue CDPs is limited to development proposed or

undertaken on any tidelands, submerged lands, or public trust lands. (Pub. Resources Code,

30004, subd. (b).)

11.

The Coastal Cmm11ission certified a LCP for the City of Marina after a public

10

hearing on Apri120, 1982. Accordingly, an applicant proposing development within the City of

11

Marina's coastal zone must obtain a CDP from the City.

12

12.

The Coastal Commission may hear an appeal from a denial of a permit under a

13

certified Local Coastal Program in very limited circumstances. "[A]fter certification of a local

14

coastal program, issuance of coastal development permits is the purview of the local

15

govermnent, not the Coastal Cormnission." (City ofMalibu v. California Coastal Com. (2012)

16

206 Cal.App.4th 549, 556.) Only once the City makes that decision does the commission have

17

jurisdiction for appeal, and even then the jurisdiction is limited:

18
19
20
21

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23
24
25
26
27

28

The only grounds for appeal to the Coastal Co=ission from the local
govermnent's aCtion on a coastal development permit for a major public works
project or a major energy facility are that the development does, or does not,
conform to the certified LCP and the Coastal Act's public access policies. (
30603, subds. (a)(5), (b)(l), (2).)
(City ofMalibu, supra, 206 Cal.App.4th at p. 555.) The Commission does not have generalized

jurisdiction to hear an appeal from a local agency's detennination under CEQA. (Hines v.
California Coastal Commission (2010) 186 Cal.App.4th 830, 852 ["The Coastal Co=ission

lacks jurisdiction to review a local goverun1ent's compliance with CEQA."].)

13.

As with the Coastal Act, the Cmmnission has an independent duty to ensure

compliance with CEQA. (See Pub. Resources Code, 21080.5; 14 Cal. Code Regs. ("CCR")
13096, subd. (a) ("All decisions of the cormnission relating to permit applications shall be

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

accompanied by written conclusions about the consistency of the application with ... Public

Resources Code section 21000 [CEQA]")

14.

Under CEQA, any party may bring an action or proceeding-

4
5
6
7
8

to attack, review, set aside, void, or annul a determination or decision of a state

agency approving or adopting a proposed activity under a regulatory program that
has been certified pursuant to this section on the basis that the plan or other written
documentation prepared pursuant to paragraph (3) of subdivision (d) does not
comply with this section shall be commenced not later than 30 days from the date
of the filing of notice of the approval or adoption of the activity.

9 (Pub. Resources Code, 21080.5, subd. (g); see also id., 21168.)
15.
Under the Coastal Act, any party aggrieved by the decision or action of the
10
11

Commission has the right to judicial review of that decision or action by filing a petition for

12

writ of mandate in accordance with section 1094.5 of the Code of Civil Procedure, within 60

13

days after the decision or action has become final. (Pub. Resources Code, 30801.)

14

16.

Under the Coastal Act, any person may maintain an action for declaratory and

15

equitable relief to restrain a violation of the act and to enforce the duties specifically imposed

16

upon the Commission. (Pub. Resources Code, 30803, 30804.)

FACTUAL ALLEGATIONS

17
18

19

20

17.

MCWD operates and maintains groundwater production wells in Salinas River

Groundwater Basin. MCWD pmnps water from these wells, treats it, and then delivers this
water to MCWD's customers. The Project will pump groundwater from the Salinas River

21

Groundwater Basin, which is the same groundwater basin from which MCWD's groundwater

22

wells pump water to supply water to MCWD's customers.

23

24
25

26
27

28

18.

Cal-Am proposes to construct and operate a test slant well, including monitoring

wells and other related infrastructure within a sensitive coastal dune complex located in the
City of Marina.
19.

The allegedly "temporary" test well is the initial phase in Cal-Am's unapproved

Water Supply Project proposal to construct a desalination facility north of the City of Marina.
(hereafter, "MPWSP"). In April2013, Cal-Am filed an application with the CPUC for the
5
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

MPWSP, which includes slant wells that would be located at the Project site, a desalination

facility to be located about two miles inland of the test well site adjacent to a regional

wastewater treatment facility, pipelines, and the other related facilities. The CPUC is currently

preparing an EIR for the project, which is expected to be published in 2015.

20.

Cal-Am initially proposes to use the slant well to calculate how much water being

pumped from Salinas River Groundwater Basin is groundwater, how much is sea water, and

then discharge all of the pumped water to the ocean. Cal-Am hopes to use the slant test well as

a long-term production well for the MPWSP.

21.

Cal-Atn has no groundwater rights in the Salinas River Groundwater Basin. The

10

slant well Project and MPWSP could have a significant impact on the Salinas Valley

11

Groundwater Basin since this is the third year of drought, which prompted Governor Brown to

12

declare a drought emergency and request all citizens to reduce water use.

13

22.

Cal-Am applied for a CDP for the Project (but not the MPWSP) with the City of

14

Marina, and the City of Marina prepared an initial study/mitigated negative declaration

15

("IS/MND") pursuant to CEQA to consider Cal-Am's application.

16

23.

On or about March 13, 2013, Cal-Atn applied for a CDP from the Coastal

17

Conmrission for portions of the slant well (but not the MPWSP) within tidelands, submerged

18

lands, and public trust lands. Under the California Code of Regulations, title 14, section

19

13053.5, the application must describe the "applicant's legal interest in all the property upon

20

which work would be perfonned, iftl1e application were approved, e.g., ownership, leasehold,

21

enforceable option, authority to acquire the specific property by eminent domain." The

22

application notes that the project would be on state lands, but that an application for a lease

23

from the State Lands Commission had not yet been submitted.

24

24.

On September 4, 2014, tl1e City of Marina denied Cal-Am's CDP application for

25

development of the test slant well "without prejudice" because the City found that the IS/MND

26

prepared pmsuant to the CEQA was inadequate. As a result of its CEQA decision, the City

27

could not make any fmdings on whether the CDP was consistent with tl1e City of Marina's LCP

28

or the Coastal Act.

6
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTNE REUEF

1
2
3

25.

On September 24, 2014, Cal-Am appealed the City of Marina's decision to

denying the CDP "without prejudice" on CEQA grounds to the Commission.

26.

On October 30, 2014, MCWD submitted a cmmnent letter to the Coastal

Conunission, explaining that the Coastal Cmmnission did not have jurisdiction yet since the

City had only denied the CDP "without prejudice" pending further environmental review

required by CEQA.

27.

The Conunission's staff released its recmmnendations in a staff report dated

October 31, 2014 (Staff Report). Under the Cmmnission's certified regulatory program the

StaffRepmi is supposed to serve as a functional equivalent document to an EIR. Cmmnission

10

staff reconm1ended that the Connnission find that it has jurisdiction to hear the appeal (in the

11

parlance of the Commission, that there is a substantial issue) because the CD P did not conform

12

to the City of Marina's LCP because it would result in significant and unavoidable impact to

13

environmentally sensitive habitat areas ("ESHA"). Despite the fact the City was never able to

14

review the CDP for compliance with its LCP and never completed environmental review under

15

CEQA, and State Lands had not reviewed the Project for compliance with CEQA, and the

16

CPUC had not even published the Draft EIR for the entire MPWSP, the StaffRepmi

17

recommended the commission find a "substantial issue" to exercise jurisdiction over the CDPs

18

and approve Cal-Am's permit application for the slant well both within the jurisdiction of the

19

City (Appeal No. A-3-MRA-14-0050) and the pennit application within the Cmmnission's

20

original jurisdiction (Application No. 9-14-1735).

21

28.

On November 7, 2014, MCWD submitted a conunent letter, which explained why

22

the Coastal Cmmnission lacked jurisdiction to act on the permits. MCWD's November 7, 2014

23

also explained that the Staff Report did not satisfy the Cormnission's obligation under CEQA

24

and the Coastal Act for multiple reasons, including that significant environmental impacts of

25

the Project had not been adequately addressed, the lack of baseline information made it

26

impossible for public and Conunission to understand the potential impacts of the Project (or

27

larger MPWSP), and that the two-page alternatives discussion contained no facts and omitted

28

feasible altematives.
7
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1
2
3

29.

On November 10, 2014, MCWD submitted another cmmnent letter, which further

explained why the significant environmental impacts of the Project had not been addressed.
30.

Midday on November 11, 2014-both a national and state holiday-the Coastal

Cormnission published on its website a 767 page "addendum" to its October 31, 2014 staff

report. The addendum did not include the comments submitted by MCWD on November 7 or

November 10, although it did include the email transmission sheet for the November 7

cmmnents. MCWD asked Commission staff why the letters were not included in the

addendnm, and was informed that the letters would be included in a later addendum.

31.

Well into the evening on November 11, 2014, the Coastal Connnission published a

10

second addendum, substantially modifying the original October 31, 2014 staff report and

11

purporting to address the cmmnents raised by MCWD. The second addendum still did not

12

include MCWD's letters of November 7 and 10, 2014. Those letters were never provided to

13

the public and where apparently withheld from public disclosure. Although MCWD's

14

November 7 and 10 letters were never provided to the public or Commissioners before the

15

hearing, Connnission staff provided copies of both letters to Cal-Am. Unfairly, Cal-Am's

16

response to MCWD's letters was included in the addendum the staff report provided to the

17

public and Cmmnissioners. MCWD received the second addendmn by email fi"om Coastal

18

Conunission staff at roughly 6:00pm on November 11. The second addendum was posted on

19

the Coast Conm1ission's website at some point that later that night for the remainder of the

20

public. MCWD alleges based on information and belief, the most members of the public never

21

saw or reviewed second addendum.

22

32.

The second addendum significantly changed both the project and the mitigation

23

for the project in ways that substantially increased the severity of enviromnental impacts that

24

were disclosed in the October 31 Staff Report, including but not limited to biological resources

25

and hydrology impacts. The Project, for instance, was modified so as to allow construction to

26

continue after February 28; this was identified as the critical date in all of the project

27

applications--after which all work would stop--because it is start of the snowy plover breeding

28

and nesting season. The mitigation was altered as well. For instance, the new mitigation allows
8
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Cal-Am to move species that are listed under the Endangered Species Act in a way that is

arguably an impermissible "take" under that Act. The perfonnance criteria for groundwater

impacts was also changed. Given the incredibly short notice between the release of the second

addendum and the hearing scheduled for 9:00am the following day, the public and MCWD

were substantially and prejudicially deprived of the right to review and conunent on these

changes to the Project and mitigation. MCWD did provide some c01mnents, but they were

obviously curtailed given the time constraints.

33.

At the November 12,2014, hearing, Commission staff did not call attention to the

changes in the project or mitigation made the prior evening but did announce further changes to

10

mitigation. These changes further reduced the efficacy of the mitigation measures. These new

11

changes to the mitigation will allow substantial increases the severity of environmental impacts

12

than previously analyzed or discussed in the October 31 Staff Report, including but not limited

13

to biological resources and hydrology impacts.

14

34.

On November 12, 2014, the Commission held a hearing on the matters. It

15

determined, without a hearing (refusing to hear testimony from the City, MCWD, and public on

16

this its jurisdiction over the appeal) and without ever seeing MCWD's November 7, 2014letter,

17

that it had jurisdiction to hear the appeal in matter Appeal No. A-3-MRA-14-0050. The

18

process whereby this occurred was grossly unfair and worked a substantial deprivation of the

19

City's, the public's and MCWD's rights. The City of Marina's representatives at the hearing

20

were not provided an opp01iunity to testify before the Commission made its decision on

21

jurisdiction to hear the appeal.

22

35.

Well into the middle of the hearing, right before the C01mnission voted to

23

approve the permits, Commission staff provided the Commission with copies ofMCWD's

24

letters of November 7 and 10, 2014. In as much as the letters were in excess of 102 pages

25

combined, and involved difficult and complex legal and factual matters, it strains credulity that

26

the Commissioners would be able to read and comprehend MCWD's c01mnents in minutes they

27

had to review the letters before they approved the Project.

28

36.

Although MCWD's letters were not included in either the first or second

9
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

addendum to the Staff Report, MCWD was not provided additional time to address the

Commission. Rather MCWD was given the same 2 minutes per speaker that everyone but Cal-

Am was provided (Cal-Am was provided 15 minutes) for conm1ents to the Commission. In its

public comments, MCWD requested the Commission reconsider its decision to exercise

jurisdiction of the Project. The City of Marina's general manager and city attorney also

testified and explained that the City denied the CDP "without prejudice" and therefore could

not make LCP fmdings.

8
9

37.

The Commission's process for the Project was grossly unfair and worked a

substantial deprivation of public and MCWD's rights.

10

38.

The public process was substantially undermined and the fact that the significant

11

addendums to the staff report, were not made public until late at night on the eve before the

12

hearing, and MCWD's conm1ent letters were not included in any of the addendums. The error

13

was further compounded by the fact that the substantial changes to the Project were not

14

addressed in any meaningful way at the heaTing. It is unclear whether the Commission or the

15

public were aware of, much less understood, the material changes made to the staff report or

16

MCWD's comments, m1d to mitigation supposedly addressing project impacts, in the cover of

17

night.

18

39.

After the close of the hearing on November 12, 2014, the Commission approved

19

both CDPs with almost no discussion because the public hearing had run past the expected time

20

a11d was cutting into the time for a planned field trip.

21
22
23
24

STANDING
40.

The C01mnission owed a mandatory duty to comply with CEQA and the Coastal

Act in approving the Project. (See, e.g., Public Resources Code, 30804.)
41.

MCWD is beneficially interested in the Connnissions full compliance with CEQA

25

and the Coastal Act before the C01mnissions decides whether to approve the CDP for the

26

proposed test slant well.

27
28

42.

MCWD has the right to enforce the mandatory duties imposed upon the

Conmlission by law.
10
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

43.

MCWD is a public agency charged with providing safe and reliable water service

to all residential, cmmnercial, industrial, enviromnental, and fire protection uses in the then

unincorporated conununity of Marina.

44.

MCWD serves approximately 30,000 residents in its Marina and Ord Community

service areas, who rely on MCWD for their domestic drinking water. The District currently

pmnps all of its water supply fiom groundwater wells in the Salinas Valley Groundwater Basin.

45.

MCWD has a substantial interest in the success of defendant in tllis action.

Operation of this proposed well will adversely affect water supplies and water quality in the

Salinas Valley Groundwater Basin, impairing MCWD's water rights, contracts, and ability to

10
11

provide essential public services.

46.

MCWD has no other plain, speedy, and adequate remedy in the ordinary course of

12

law, and MCWD will suffer irreparable injury nnless this Court issues the relief requested in

13

this Petition.

14

47.

MCWD also entered into a recorded annexation agreement with the Monterey

15

County Water Resources Agency, the City of Marina, the J.G. Armstrong Fan1ily, and RMC

16

Lonestar (owner of the "Lonestar" property at issue in this litigation): the Annexation

17

Agreement and Groundwater Mitigation Framework for Marina Area Land dated March 1996.

18

The property at issue in this litigation is subject to restrictions set forth in the Annexation

19

Agreement. The Annexation Agreement protects the groundwater resources of the Salinas

20

River Groundwater Basin. MCWD's rights under the Annexation Agreement would be

21

materially impaired and harmed by the Project.

22
23
24
25

EXHAUSTION OF ADMINISTRATIVE REMEDIES

48.

MCWD objected to the Cmmnission's approval of the CDP in writing and orally

prior to the close of the Conmlission's public hearing on the CDP.

49.

The grounds for noncompliance with CEQA and the Coastal Act alleged in this

26

Petition were presented to the Commission orally and in writing prior to the close of the

27

Conunission's public hearing on the CDP.

28

50.

In the alternative, because of the process wl~ereby the Conm1ission amended its

11
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Staff Report, in the evening of a national and state Holiday the day before the hearing on the
2 Project, and during the hearing, there was no opportunity for members of the public to raise the
3 grounds of noncompliance alleged in this Petition prior to the Commission's approval of the
4 CDP.
5

51.

7
8
9

MCWD has exhausted its administrative remedies.

STATUTE OF LIMITATIONS

52.

The Commission overturned the City of Marina's decision and approved the CDPs

for the Project on November 12, 2014.

53.

MCWD filed this Petition prior to the expiration of applicable statutes of

10 limitations under CEQA (Pub. Resources Code, 21080.5), the Coastal Act (Pub. Resources
11 Code, 30801), and any other applicable statute of limitations.
12

13

NOTICE OF CEQA SUIT

54.

On November 24, 2014, MCWD's counsel faxed and sent via overnight delivery a

14 letter to the Commission giving notice ofMCWD's intent to file this action. A copy of that
15 notice is attached hereto as Exhibit A.
16

55.

In accordance with Public Resources Code section 21167.7, a copy of this

17 pleading shall be provided to the Attorney General.

18

19

RECORD OF PROOCEEDINGS
56.

Petitioner requests that the California Coastal Commission prepare the record of

20 proceedings.

FIRST CAUSE OF ACTION

Violation of CEQA
(Public Resources Code, 21000 et seq.)

21

22
23

24
25

57.

Paragraph 1 through 56 set forth above are realleged and incorporated herein by

reference.
58.

The Conmrission's decision to approve the Coastal Development Pennit allowing

26

Cal-Am to construct and operate a slant test well and associated monitoring wells on the

27

CEMEX property is invalid as an abuse of discretion because the Commission is not the

28

appropriate lead agency under CEQA, and because the Commission's approval would allow
12
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

construction to substantially commence before all required approvals are in place, including an

essential lease under public trust lands from the State Lands Cmmnission. Notably, the State

Lands Connnission has neither approved the lease, nor commenced CEQA review for the lease.

In allowing the project to connnence without this approval, the Conunission has either:

a.

Precommitted the State Lands Commission to approving the project in

the location and manner proposed, even before it has had the

opportunity to complete the CEQA process as required by Guidelines

section 15253. As the courts have repeatedly emphasized,

environmental review must be completed before Project approval

10

otherwise "bureaucratic and financial momentum" mounts behind a

11

project, "providing a strong incentive to ignore enviromnental concerns."

12

(Save Tara v. City of West Hollywood (2008) 45 Ca1.4th 116, 130, quoting

13

Laurel Heights I, at p. 394.) "[A]t a minimum an EIR must be performed

14

before a project is approved, for "[i]fpostapproval enviromnental review

!5

were allowed, EIR' s would likely become nothing more than post hoc

16

rationalizations to support action already taken." (Ibid.); or

17

b.

Allowed construction to proceed without analyzing what will happen if the

18

lease is never approved by the SLC. As the Supreme Court explained in

19

Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho

20

Cordova (2007) 40 Cal.4th 412, 432, CEQ A's information demands are

21

not met simply by noting that future development will not occur if

22

certain contingencies do not arise. The analysis has to include the

23

further steps of discussing not only "the option of curtailing the

24

development" but also disclosing "the significant foreseeable

25

enviromnental effects" curtailed development. (Id. at p. 434.)

26

59.

The Commission's decision to approve the Coastal Development Permit allowing

27

Cal-Am to construct and operate a slant test well and associated monitoring wells on the

28

CEMEX prope1iy is invalid as an abuse of discretion because the Cmmnission' s findings are
13
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

not supported by evidence, its decisions is not supported by the fmdings, and it has not

proceeded in the manner required by law. Specifically, the Conm1ission failed to comply with

the California Enviromnental Quality Act (CEQA) (Pub. Res. Code, 21000 et seq.). Among

other things, when approving the CDP, Respondents:

a.

Failed to provide an accurate and consistent project description. Instead, the

project description relied upon by the Commission in the EIR functional equivalent

document is inconsistent, misleading, and improperly segments the project;

b.

Failed to establish an adequate envirorunental baseline;

c.

Failed to consider a reasonable range of alternatives;

10

d.

Failed to include an adequate alternatives analysis;

11

e.

Failed to comply with CEQ A's mandatory public connnent and review

12

13
14
15

period and failed to comply with its own regulations to provide reasonable notice;

f.

Failed to ensure the whole of the project was analyzed by allowing the

project to proceed without prior approval from the State Lands Commission;
g.

Failed to adequately disclose all of the project's potential impacts,

16

including impacts to the federally-listed Western snowy plover, water supply, and water

17

quality;

18
19

20
21

22
23

h.

Failed to adopt legally adequate mitigation for the project and approved the

project with unmitigated impacts;

1.

Failed to adopt properly deferred mitigation with adequate performance

standards and thresholds as required by CEQA;

J.

Failed to adopt findings supported by substantial evidence as required by

Public Resources Code section 21081.

24

k.

Failed to adequately disclose and respond to public comments;

25

I.

Failed to recirculate the EIR functional equivalent document as required by

26

law when the Project and project-mitigation was substantially modified and when the

27

alternatives analysis was substantially modified;

28
14
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1
2

60.

As a result of the foregoing defects, Respondents' approval of the project is

contrary to law and invalid and must be set aside.

SECOND CAUSE OF ACTION

Violation of the California Coastal Act
(Public Resources Code, 30000 et seq.)

4
5

6
7
8

10

11

61.

Paragraph 1 through 60 set forth above are realleged and incorporated herein by

reference.
62.

The Commission, when approving the CDP, also failed to proceed in the mrumer

required by the California Coastal Act (Pub. Res. Code, 30000 et seq.). Among other things,
the Commission abused its discretion and violated the Coastal Act by:

a.

Improperly accepting appellate jurisdiction over a CDP (No. A-3-MRA-14-

12

0050), and usurping the local agency's authority, when the City of Marina has a certified

13

LCP and had yet to approve or deny the CDP under the certified LCP;

14

b.

Granting the appeal, a11d approving the permit, even though the

15

Commission independently found that the CDP was not in conformity with the LCP, and

16

doing so by improperly reaching findings under Public Resources Code section 30260,

17

thereby usurping the City of Marina's discretion under the ce1iified LCP;

18

c.

Authorizing a project that impacts environmentally sensitive habitat areas

19

(ESHA) in a manner that is inconsistent with Public Resources Code section 30240,

20

which prohibits uses that affect ESHA unless the use is "dependent on those resources";

21

d.

Making findings under Public Resources Code section 30260 that are not

22

supported by substantial evidence that either (1) alternative locations are infeasible or

23

more enviromnentally damaging, (2) that to do otherwise would adversely affect the

24

public welfare, and (3) that adverse enviromnental effects have been mitigated to the

25

"maximum extent feasible;"

26

e.

Improperly accepting jurisdiction over a CDP (No. Application No. 9-14-

27

1735) and approving a permit, when the applicant, Cal-Am, has not demonstrated it has

28

an interest in the property. (Pub. Resource Code, 30601.5.) State Lands Commission
IS
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

has not granted a lease for the project, has not put the subject of the lease on an agenda,

and has not conm1enced CEQA review;

f.

Approving a project that overrides an LCP without following the

procedures that are set out in the Coastal Act for doing so in Public Resources Code

section 30515 or California Code ofRegu1ations, title 15, section 13666-13666.4;

g.

Commission's actions and reasonable opportnnity to participate in open govermnent;

h.

I.

14

Improperly deferring mitigation for significant and adverse impacts.

PRAYERFORRELIEF

11

13

Failing to provide the fullest reasonable opportnnity for public

participation; and

10

12

Utilizing procedures that fail to provide reasonable notice of the

Wherefore, the Marina Coast Water District prays for judgment against the Commission
as follows:
1.

For a temporary stay, temporary restraining order, and preliminary and permanent

15 injunctions restraining Respondent and its agents, employees, officers and representatives fiom
16 issuing any perinits or taldng other actions in furtherance of the Project pending full compliance
17 with the requirements of CEQA, the CEQA Guidelines, and the Coastal Act.
18

2.

For a peremptory writ of mandate commanding the Commission to vacate and set

19 aside in its entirety its decision to approve the Coastal Development Permit allowing Cal-Am to
20 construct and operate a slant test well and associated monitoring wells on the CEMEX property;
21

3.

For a peremptory writ of mandate directing the Respondents to comply with the

22 requirements of CEQA, the CEQA Guidelines, and the Coastal Act;

23

4.

For a temporary stay, temporary restraining order, and preliminary and pennanent

24 injnnctions restraining the Real Parties in Interest and Respondents and its agents, servants, and
25 employees, and all others acting in concert with Real Parties in Interest and Respondents on
26 their behalf, from taldng any action to implement the Project, pending full compliance with the
27 requirements of CEQA, the CEQA Guidelines, and the Coastal Act;
28
16
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

5.

For an award of reasonable attorneys' fees and costs in this action to Petitioner;

6.

For such other and further relief that the Court deems just and proper.

2 and
3
4
5

Dated: November 24, 2014

7
8

9
10

Attorneys for Petitioner and Plaintiff

MARINA COAST WATER DISTRICT

11

' 12
13

14
15
16
17
18
19

20
21

22
23

24
25

26
27

28
17
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

EXHIBIT A

REMY

MOOSE

MANLEY
LLP

Howard "Chip" Wilkins Ill

[email protected]

November 24, 2014

VIA FACSIMILE AND FEDERAL EXPRESS

Charles Lester
Executive Director
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, California 941 OS
Christopher Peterson
Deputy Chief Counsel
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, California 94105

Re:

Notice of Commencement of Action

Dear Messrs. Lester and Peterson:

Please take notice that Marina Coast Water District intends to file a petition and
complaint under the California Environmental Quality Act ("CEQA") and the Coastal Act
against the California Coastal Commission challenging the approval of Coastal Development
Permit (CDP) Nos. A-3-MRA-14-0050 and 9-14-1735 ("the Project").
The petition and complaint will seek the following relief:
1.
A temporary stay, temporaiy restraining order, and preliminary and permanent
injunctions restraining the Coastal Commission and its agents, employees, officers and
representatives from issuing any permits or taking other actions in furtherance of the Project
pending full compliance with the requirements of CEQA, the CEQA Guidelines, and the
Coastal Act.

2.
A peremptory writ of mandate commanding the Commission to vacate and
set aside in its entirety its decision to approve the Coastal Development Permits allowing
Cal-Am to construct and operate a slant test well and associated monitoring wells on the
CEMEX property.

555 Capitol Mall, Suite 800 Sacramento CA 95814

Phone: (916) 4432745

Fax: (916) 4439017

I www.rmmenvirolaw.com

Charles Lester
Christopher Peterson
California OJastal Commission
November24, 2014
Page2

3.
A peremptory writ of mandate directing the OJmmission to comply with the
requirements of CEQA, the CEQA Guidelines, and the OJastal Act.
4.
A temporary stay, temporary restraining order, and preliminary and pennanent
injunctions restraining the Real Parties in Interest California American et a!. and
Commission and its agents, servants, and employees, and all others acting in concert with
California-American and the OJmmission on their behalf, from taking any action to
implement the Project, pending full compliance with the requirements of CEQA, the CEQA
Guidelines, and the OJastal Act.
5.

An award of reasonable attorneys' fees and costs in this action to Petitioner;

6.

And any such other and further relief that the Olurt deems just and proper.

and