Sweeney v. California Regional Water Quality Control Board

Filed 2/18/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOHN D. SWEENEY et al.,

Plaintiffs and Respondents,

A153583

v.

CALIFORNIA REGIONAL WATER (Solano County

QUALITY CONTROL BOARD, SAN Super. Ct. No. FCS048136)

FRANCISCO BAY REGION et al.,

Defendants and Appellants.

JOHN D. SWEENEY et al.,

Plaintiffs, Cross-defendants,

and Respondents, A153585

v. (Solano County

SAN FRANCISCO BAY Super. Ct. No. FCS048861)

CONSERVATION AND

DEVELOPMENT COMMISSION et

al.,

Defendants,

Cross-complainants, and

Appellants.

Point Buckler (the Site) is a 39-acre tract located in Suisun Marsh.

John Sweeney purchased the island and subsequently transferred ownership

to Point Buckler Club, LLC (Club) (Sweeney and the Club are collectively

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referred to as Respondents). For months, Respondents undertook various

unpermitted development projects at the Site, which included the restoration

of an exterior levee surrounding it that had been breached in multiple places.

These consolidated appeals concern two administrative orders issued

by the Regional Water Quality Control Board, San Francisco Bay Region

against Respondents. The first order was a cleanup and abatement order

which found Respondents’ development activities were unauthorized and had

adverse environmental effects. These included impacts to tidal marshlands,

fish migration, and aquatic habitat. The cleanup and abatement order

directed Respondents to implement corrective actions to address the effects of

their work. The second order imposed administrative civil liabilities and

required Respondents to pay approximately $2.8 million in penalties for their

violations of environmental laws and regulations.

Respondents successfully challenged both orders in writ proceedings in

the superior court. Appellants Regional Water Quality Control Board, San

Francisco Bay Region and its Executive Officer, Bruce Wolfe (collectively

referred to as Regional Board or Board) contend the trial court made

numerous legal and factual errors leading it to improperly set aside the

orders. We agree with the Regional Board and reverse both trial court

judgments.

BACKGROUND

The Site is located in Suisun Marsh at the south end of Grizzly Bay, a

portion of the San Francisco Bay.

In 2011, Sweeney bought the Site, which appears to have been

previously operated as a managed wetland for duck hunting. When Sweeney

purchased the property, the levee which had circumscribed the island had

degraded and breached in multiple places. Following his purchase, Sweeney

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undertook a number of unpermitted construction and development projects,

which included restoring the Site’s exterior levee.

In October 2014, Sweeney transferred title of the Site to the Club, for

which he was the manager and president. He began operating the Site as a

private recreational area for kiteboarding. Sweeney also wanted to restore

the Site as a duck hunting club.

In November 2014, staff from the San Francisco Bay Conservation and

Development Commission (BCDC), a state agency with jurisdiction over the

waters of the San Francisco Bay including Suisun Marsh, inspected the Site.

BCDC staff notified Sweeney about their concerns with unauthorized work

occurring there and identified multiple violations. They observed the levee

construction work had removed tidal flow to the Site’s interior and dried out

tidal marsh areas. Addressing Sweeney’s view that the island was a

managed wetland and his stated intent to restore the island to that use, they

indicated that based on available information, the history of the Site and the

recent Site visit, the Site never functioned as a managed wetland and had

long reverted to a tidal marsh due to neglect, abandonment, or the forces of

nature. Sweeney was directed to stop work and informed that a marsh

development permit was required prior to developing the Site. In addition,

BCDC staff conveyed that any work that could not be retroactively approved

through the permit process would likely need to be removed and the Site

restored to tidal marsh. BCDC was handling the matter as an enforcement

case, and potential future enforcement against Sweeney could include cease

and desist orders and a civil penalty. 1

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In November 2016, BCDC issued a cease and desist and civil penalty

order which ordered Respondents to cease and desist from placing any fill

within the Site, or making any substantial changes to any part of the Site

that was or had been subject to tidal action before their unauthorized work.

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The Regional Board commenced separate enforcement proceedings

against Respondents. In July 2015, the Board issued a Notice of Violation

for Respondents’ unauthorized filling of federal and state waters in violation

of the federal Clean Water Act and the California Water Code. Several

months later, the Board issued Cleanup and Abatement Order No. R2-2015-

0038 (2015 CAO) to Respondents.

In October 2015, Regional Board staff inspected the Site with

representatives from other agencies, including BCDC, the U.S.

Environmental Protection Agency, and the U.S. Army Corp of Engineers

(Corps). The agencies wanted to better understand the nature and extent of

Respondents’ development activities, including the volume of fill placed for

construction of the levee, and to understand the impacts of the development

on tidal marsh habitat. During this inspection, BCDC staff observed that

additional work had been performed since their initial November 2014

inspection. According to Sweeney, worked stopped two months earlier when

Respondents first learned of the regulatory agency objections.

In December 2015, Respondents filed a petition for writ of mandate and

a complaint for injunctive and declaratory relief challenging the 2015 CAO.

The court granted Respondents’ request to stay the 2015 CAO and enjoined

the Board from enforcing the order pending a preliminary injunction hearing.

In January 2016, in order to address Sweeney’s procedural due process

Respondents were further ordered to refrain from engaging in any

development activity at the Site without permits. They were directed to

submit plans to restore the Site and mitigate the impacts of their

unauthorized activities and ordered to pay $772,000 in administrative

penalties. In a separate opinion filed today in the companion case of Sweeney

v. San Francisco Bay Conservation and Development Commission, Case No.

A153582, we reversed the trial court’s order invalidating the action taken by

the BCDC.

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concerns, the Regional Board rescinded the 2015 CAO without prejudice to its

ability to issue a new order.

In the ensuing months, state agencies conducted more inspections. In

February 2016, the Regional Board conducted a boat survey around the Site

to assess conditions and observed additional development on the island since

the October 2015 multi-agency inspection. In March 2016, after securing an

inspection warrant, the Regional Board conducted another Site inspection.

The results of the inspection were compiled into an Inspection Report, which

provided a summary of inspection activities, water quality sampling results,

staff observations, and photographs.

In May 2016, an expert retained by the Regional Board issued the

“Point Buckler Technical Assessment of Current Conditions and Historic

Reconstruction Since 1985” (Technical Assessment). The Technical

Assessment was a 400-plus-page report based on examinations of conditions

at the Site over time that reported Respondents’ development activities and

their impacts.

Shortly after release of the Technical Assessment, the Regional Board

commenced new formal enforcement proceedings against Respondents.

On May 17, 2016, the Board issued a tentative cleanup and abatement order

and Administrative Civil Liability Complaint No. R2-2016-1008 (ACL

Complaint). The ACL Complaint proposed a $4.6 million penalty for

Respondents’ alleged violations.

A hearing on the tentative cleanup and abatement order was held on

August 10, 2016. The Board unanimously adopted and issued Cleanup and

Abatement Order No. R2-2016-0038 (CAO). The Board made dozens of

findings in the CAO regarding Respondents’ unauthorized activities at the

Site and the environmental harm resulting from the activities. The Board

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found Respondents’ activities had adverse impacts on tidal marshlands,

estuarine habitat, fish migration, the preservation of rare and endangered

species, fish spawning, wildlife habitat, and commercial and sport fishing.

The Board concluded Respondents’ activities violated the Water Quality

Control Plan for the San Francisco County Basin (Basin Plan), which

prohibits the discharge of fill material in quantities sufficient to harm surface

waters or to adversely affect or threaten beneficial uses. The Board also

found Respondents’ work violated section 301 of the Clean Water Act which

prohibits the discharge of pollutants in state and federal waters without a

permit, and section 401, which prohibits dredge and fill activities in state and

federal waters without a water quality certification. The Board ordered

Respondents to submit certain technical reports and to clean up the

discharged waste, abate its effects, and take corrective actions that would

restore tidal circulation and marsh habitat to the Site.

A hearing was held on the ACL Complaint on December 14, 2016. The

Board issued Administrative Civil Liability Order No. R2-2016-0008 (ACL

Order). Respondents were found in violation of the Basin Plan and Clean

Water Act and assessed $2.8 million in penalties, rather than $4.6 million as

proposed.

Respondents challenged the orders in separate lawsuits. In December

2016, they petitioned under Code of Civil Procedure section 1094.5 for a

peremptory writ of mandate to set aside the CAO. In May 2017, Respondents

filed a second petition for a peremptory writ of mandate under Code of Civil

Procedure section 1094.5 contesting the ACL Order.

In May 2017, the Attorney General’s Office, representing the Board,

filed a cross-complaint seeking to enforce both orders.

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The trial court granted Respondents’ motion to stay the accrual of civil

penalties while the appeal was pending. The court also stayed substantive

portions of the CAO through judgment until an appeal was filed, or the time

to appeal had run.

In October 2017, the trial court heard the challenges to the CAO and

ACL Order. In separate statements of decisions, the trial court granted

Respondents’ motions and set aside both Regional Board orders. The court

also declared the Regional Board’s cross-complaint seeking to enforce the

CAO and ACL Order was moot. The court entered judgment in favor of

Respondents, issued peremptory writs of mandate in each matter, and

remanded the proceedings to the Regional Board with a directive to set aside

the orders.

The Regional Board and its Executive Director Bruce Wolfe separately

appealed each judgment. In July 2018, we consolidated the Board’s appeal

from the ACL Order judgment (Case No. A153583) and its appeal from the

CAO judgment (Case No. A153585) for all purposes. We received briefing on

Respondents’ behalf from amicus curiae California Construction and

Industrial Materials Association.

While the consolidated appeal was pending, the United States District

Court for the Eastern District of California issued its opinion in United States

v. Sweeney (Sept. 1, 2020 E.D. Cal.) ___ F.Supp.3d ___ [2020 WL 5203474]

(the Sweeney District Court Opinion), which adjudicated the federal

government’s claims against Respondents for their activities at the Site

under the Clean Water Act. (Id. at *1.) We granted the Regional Board’s

request for supplemental briefing on the possible res judicata effect of the

federal district court’s opinion on this appeal, and received briefing from the

parties.

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DISCUSSION

I. APPLICABLE LAW

“A party aggrieved by a final decision or order of a regional board . . .

may obtain review of the decision or order of the regional board in the

superior court by filing in the court a petition for writ of mandate.” (Wat.

Code, § 13330, subd. (b).) Code of Civil Procedure section 1094.5, our state’s

administrative mandamus provision, provides the procedure for judicial

review of adjudicatory decisions rendered by administrative agencies

(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11

Cal.3d 506, 514) and governs challenges to regional board orders. (Wat.

Code, § 13330, subd. (e) [“Except as provided in this section, Section 1094.5 of

the Code of Civil Procedure shall govern proceedings for which petitions are

filed pursuant to this section.”].) “The inquiry in such a case shall extend to

the questions whether the respondent has proceeded without, or in excess of,

jurisdiction; whether there was a fair trial; and whether there was any

prejudicial abuse of discretion. Abuse of discretion is established if the

respondent has not proceeded in the manner required by law, the order or

decision is not supported by the findings, or the findings are not supported by

the evidence.” (Code Civil. Proc., § 1094, subd. (b).)

Here, the trial court ultimately concluded the Regional Board abused

its discretion in issuing the CAO and ACL Order. Because the Regional

Board’s consolidated appeals of the court’s decisions present myriad issues,

each with distinct standards of review, we shall discuss the governing law

and review standards during our analysis of each respective order.

II. THE CLEANUP AND ABATEMENT ORDER

The court set aside the CAO on multiple grounds. Among its reasons,

it found the Regional Board violated the requirements of Water Code section

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13627, the CAO failed to satisfy the criteria for enforcement actions

contained in the Porter-Cologne Water Quality Control Act, and the CAO

conflicted with the Suisun Marsh Preservation Act. The Regional Board

contends none of these reasons have merit. We agree.

A. CAO Standard of Review

The parties do not dispute the applicable standards of review for the

CAO., Nor do we. Pursuant to Water Code section 13330, subdivision (e), the

independent judgment standard applies to the trial court’s review of a

cleanup and abatement order. (See Tesoro Refining & Marketing Co. LLC v.

Los Angeles Regional Water Quality Control Bd. (2019) 42 Cal.App.5th 453,

466–467 [“Section 13330, subdivision (e) requires the trial court to exercise

its independent judgment in reviewing the CAO issued by the Regional

Board.”].)

Under the independent judgment standard, “ ‘the trial court begins its

review with a presumption that the administrative findings are correct[.] [I]t

does not defer to the fact finder below and accept its findings whenever

substantial evidence supports them. Instead, it must weigh all the evidence

for itself and make its own decision about which party’s position is supported

by a preponderance. [Citation.] The question is not whether any rational

fact finder could make the finding below, but whether the reviewing court

believed the finding actually was correct.’ ” (Coastal Environmental Rights

Foundation v. California Regional Water Quality Control Bd. (2017) 12

Cal.App.5th 178, 187 (Foundation); see also Fukuda v. City of Angels (1999)

20 Cal.4th 805, 817 (Fukuda) [under independent judgment standard a trial

court must afford a strong presumption of correctness concerning the

administrative findings].) “[T]he party challenging the administrative

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decision bears the burden of convincing the court that the administrative

findings are contrary to the weight of the evidence.” (Fukuda, at p. 817.)

There is also no dispute about the standard of review we must employ

on appeal. The parties agree that on factual matters, this court reviews the

trial court’s decision on the CAO for substantial evidence supporting the trial

court’s findings. We, too, agree. (See Fukuda, supra, 20 Cal.4th at p. 824

[“Where, ‘as here, the trial court is required to review an administrative

decision under the independent judgment standard of review, the standard of

review on appeal of the trial court’s determination is the substantial evidence

test.’ ”].)

“In substantial evidence review, the reviewing court defers to the

factual findings made below. It does not weigh the evidence presented by

both parties to determine whose position is favored by a preponderance.

Instead, it determines whether the evidence the prevailing party presented

was substantial—or, as it is often put, whether any rational finder of fact

could have made the finding that was made below. If so, the decision must

stand.” (Alberda v. Board of Retirement of Fresno County Employees’

Retirement Assn. (2013) 214 Cal.App.4th 426, 435 (Alberda), italics omitted.)

Also, the parties agree, as do we, that we review issues of law de novo.

(Foundation, supra, 12 Cal. App.4th at p. 190.) “We are not bound by the

legal determinations made by the state or regional agencies or by the trial

court. [Citation.] But we must give appropriate consideration to an

administrative agency’s expertise underlying its interpretation of an

applicable statute. (Building Industry Assn. of San Diego County v. State

Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 879 (Building

Industry).)

B. The Porter-Cologne Water Quality Control Act

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The Porter-Cologne Water Quality Control Act (Porter-Cologne or the

Porter-Cologne Act) (Wat. Code, § 13000 et seq.) expresses the public’s

“primary interest in the conservation, control, and utilization of the water

resources of the state,” and intends to advance that interest by ensuring the

protection of the “quality of all the waters of the state” for the public’s use

and enjoyment. (Wat. Code, § 13000.) Porter-Cologne was enacted in order

“to attain the highest water quality which is reasonable, considering all

demands being made and to be made on those waters and the total values

involved, beneficial and detrimental, economic and social, tangible and

intangible.” (Wat. Code, § 13000; City of Burbank v. State Water Resources

Control Bd. (2005) 35 Cal.4th 613, 619.)

The Porter-Cologne Act recognizes that the protection of water quality

can best be accomplished by statewide regulation with regional

administration. Thus, under the act, the State Water Resources Control

Board (State Board) and nine regional boards are the principal state agencies

charged with enforcing state water pollution law. (See WaterKeepers

Northern California v. State Water Resources Control Bd. (2002) 102

Cal.App.4th 1448, 1452.) Each of the nine regional boards has a

responsibility to “formulate and adopt water quality control plans” within

their region and, through those plans establish water quality objectives that

will “ensure the reasonable protection of beneficial uses [of waters of the

state] and the prevention of nuisance.” (Wat. Code, §§ 13200, 13240–13241.)

The regional board that issued the CAO here oversees the San Francisco Bay

Region, and it adopted the Basin Plan as its water quality control plan under

the Porter-Cologne Act. The Board found Respondents violated the Basin

Plan and Porter-Cologne.

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In addition, through Porter-Cologne, the regional boards implement the

federal Clean Water Act (33 U.S.C. § 1251 et seq.). (Conway v. State Water

Resources Control Bd. (2015) 235 Cal.App.4th 671, 675.) The Clean Water

Act prohibits the discharge of pollutants into any waters of the United States

without a permit. (33 U.S.C. § 1311.)

1. Regional Board Investigation Under Section 13267

Porter-Cologne includes Water Code section 13267 (Section 13267).

This provision authorizes a regional board to investigate the quality of the

waters of the state within the region subject to its authority. (Wat. Code, §

13267, subd. (a).) The Regional Board’s investigative power includes the

right to ask anyone who has discharged waste that could affect the quality of

waters of the state to provide the water board “technical or monitoring

program reports” under penalty of perjury. (Wat. Code, § 13267, subd. (b)(1).)

Section 13267 states: “The burden, including costs, of these reports shall bear

a reasonable relationship to the need for the report and the benefits to be

obtained from the reports. In requiring those reports, the regional board

shall provide the person with a written explanation with regard to the need

for the reports, and shall identify the evidence that supports requiring that

person to provide the reports.” (Wat. Code, § 13267.)

The trial court set aside the CAO for the Board’s failure to comply with

the requirements of Section 13267. The court reasoned the CAO had only “a

conclusory statement asserting that it complie[d] with § 13267, but [did] not

include the written explanation or otherwise explain why the burden bears a

reasonable relationship to the need.” The Regional Board contends the court

misinterpreted the duty imposed by Section 13267 and there was no violation

of Section 13267 that would warrant setting aside the order.

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The parties have not cited, nor have we found, any case that construes

the requirements of Section 13267. Regardless, its plain language makes

clear that in order to require a discharger to provide the Board with any

technical report, the Board must (1) provide “a written explanation with

regard to the need for the reports;” and (2) “identify the evidence that

supports requiring that person to provide the reports.” (Wat. Code, § 13267.)

Here, the CAO explained the need for the reports and identified the

evidence supporting the Board’s demand. The CAO included dozens of

findings to explain the need for the technical reports. The Board concluded

Sweeney had engaged in numerous unauthorized activities at the Site related

to his unauthorized levee construction. The Board found these unauthorized

construction activities removed crucial tidal flow to the Site’s interior, and

caused its tidal marsh areas to dry out and vegetation to die off. The Board

found Sweeney, without authorization, discharged fill material into tidal

waters at the Site. It further found Sweeney’s unauthorized activities

“adversely impacted beneficial uses at the Site including estuarine habitat,

fish migration, preservation of rare and endangered species, fish spawning,

wildlife habitat, and commercial and sport fishing.” These findings were the

basis for the Regional Board requirement that Respondents “submit technical

reports and undertake corrective action to clean up the waste discharged and

abate its effects.” They also served as the basis for its determination that

“[t]he burden of preparing technical reports required pursuant to section

13267, including costs, bears a reasonable relationship to the need for the

reports and the benefits to be obtained from the reports, namely the

restoration of beneficial uses at the Site.” Accordingly, the CAO provided

Respondents with an adequate “written explanation regarding the need for

technical reports,” and it “identif[ied] the evidence that support[ed] requiring

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that person to provide the reports.” Nothing more was required under Section

13267, and the trial court erred in concluding otherwise.

Even if the Board was not required under Section 13267 to conduct a

formal cost-benefit analysis before seeking the reports, Respondents argue

there was nothing in the record about the burden of producing the reports,

and “nothing comparing the burden to the benefits.” They say the CAO

violated Section 13267 for this reason because it failed to provide sufficient

evidence to support its conclusion that the reports bear a reasonable

relationship to the need for them and the benefits to be obtained from them.

Not so. We recognize that Section 13627 requires the burden of conducting

site investigations and producing reports to be reasonable in light of the

benefits to be obtained. But Section 13267 contains no requirement that a

CAO include any type of weighing or cost-benefit analysis. A plain reading of

the CAO shows that the Regional Board was aware of the requirement that

the burden of reports be proportional to their anticipated benefit. Even a

brief review of the descriptions of the technical reports ordered by the Board

indicates as much. For example, one report ordered was a “Point Buckler

Restoration Plan” which was to set forth the “corrective actions designed to

restore . . the water quality functions and value of the tidal marsh . . .

existing prior to [Respondents’] unauthorized activities.” The Board’s

findings warrant the inference that the Board understood the burden of

preparing such reports were reasonably related to the benefits it aimed to

accomplish, namely, the restoration of beneficial uses at the Site.

Voices of the Wetlands v. State Water Resources Control Board (2011) 52

Cal.4th 499, cited by both the trial court and Respondents in support of their

argument on this point, does not apply. That case discussed the cost-benefit

analysis of a project required under section 316(b) of the Clean Water Act (33

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U.S.C. § 1326(b)). (Id. at p. 507.) It requires that “the location, design,

construction, and capacity of cooling water intake structures reflect the best

technology available for minimizing adverse environmental impact.” (Id. at

pp. 507–508; see also 33 U.S.C. § 1326(b).) The case has nothing to do with

the Regional Board’s requirements for ordering technical reports under

Section 13267.

2. Regional Board Enforcement Action Under Section 13304(a)

When a regional board discovers a potential violation of Porter Cologne

or the Clean Water Act, it can pursue an enforcement action. One of its tools

is issuance of a cleanup and abatement order requiring the violator to

develop and execute a remedial plan. Water Code section 13304, subdivision

(a) (Section 13304(a)) establishes a regional board’s authority to issue a

cleanup and abatement order to any person “who has caused or permitted,

causes or permits, or threatens to cause or permit any waste to be discharged

or deposited where it is, or probably will be, discharged into the waters of the

state and creates, or threatens to create, a condition of pollution or nuisance.”

(Wat. Code, § 13304, subd. (a).) Upon order of a regional board, the

discharger shall “clean up the waste or abate the effects of the waste, or, in

the case of threatened pollution or nuisance, take other necessary remedial

action.” (Wat. Code, § 13304, subd. (a).)

The trial court found the conditions for issuing a CAO were not

satisfied. As we will explain, the trial court erred. It either drew erroneous

conclusions on issues of law, or its factual findings were unsupported by

substantial evidence.

a. Waste

The trial court concluded that Respondents did not discharge “waste”

as the term is used in Section 13304(a). In the trial court’s view, the “dirt

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used to repair the levee” was not waste but rather “a valuable building

material, not something discarded as worthless or useless.” We conclude the

trial court employed an overly restrictive interpretation of the term “waste”

as it is used in Section 13304(a) to conclude the requirements for a cleanup

and abatement order under Porter-Cologne were not met.

Because the Porter-Cologne Act is a law “ ‘providing for the

conservation of natural resources,’ ” it is “ ‘of great remedial and public

importance and thus should be construed liberally’ [citation] so as to promote

the general object sought to be accomplished.” (Coastside Fishing Club v.

California Resources Agency (2008) 158 Cal.App.4th 1183, 1202; United

Artists Theatre Circuit, Inc. v. California Regional Water Quality Control Bd.

(2019) 42 Cal.App.5th 851, 866–867; cf. County of Los Angeles v. State Water

Resources Control Bd. (2006) 143 Cal.App.4th 985 [court defers to regional

board expertise in construing language which is not clearly defined in

statutes].)

Porter-Cologne defines “waste” as “sewage and any and all other waste

substances, liquid, solid, gaseous or radioactive, associated with human

habitation, or of human or animal origin, or from any producing,

manufacturing, or processing operation of whatever nature prior to, and for

purposes of, disposal.” (Wat. Code, § 13050, subd. (d).) Here, the parties do

not dispute what fill material was used to reconstruct the levees at the site.

Respondents used spoils from trenches excavated at the site to build up the

levees. Accordingly, whether reconstruction of the levees involved the

discharge of waste is a legal issue we review de novo.

A leading case construing the term “waste” under Porter-Cologne is

Lake Madrone Water Dist. v. State Water Resources Control Bd. (1989) 209

Cal.App.3d 163 (Lake Madrone). There, a State Board abatement order

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required a damn operator to refrain from flushing accumulated sediment into

a creek and to submit a plan for its cleanup. (Id. at p. 167.) The released

sediment was deposited in the creek up to 18 inches deep, and “chok[ed] [the

creek’s] pools and shoreline . . . clogging its spawning areas so heavily as to

destroy fish and aquatic life.” (Id. at p. 166.) The dam operator challenged

the State Board’s view that the accumulated sediment passing through the

dam’s gate valve was “waste” within the meaning of Porter-Cologne. (Id. at

pp. 168–169.) Citing the legislative intent behind Porter-Cologne and prior

Attorney General Opinions,2 the court concluded, “There is no doubt that

concentrated silt or sediment associated with human habitation and harmful

to the aquatic environment is ‘waste’ under the statute.” (Id. at p. 169.)

Acknowledging the silt was “innocuous in its unconcentrated form,” it

explained that “by furnishing a man-made artificial location for its

concentration, the innocuous substance [was] changed into one . . . deadly to

aquatic life.” (Id. at pp. 169–170.) It found the concentrated sediment

clogging the creek associated with human habitation, as well. (Ibid.)

Here, there is no dispute that Respondents used the fill material to

replace a breached levee in order to facilitate kiteboarding or duck hunting

club purposes. Thus, the act of placing the fill in tidal marsh and tidal

waters associated the fill material with human habitation and activities.

Even though there is no claim that the fill material was contaminated or

harmful in a general sense, it was harmful as used in reconstructing the

levee in tidal wetlands. Respondents’ discharge of fill material resulted in

2 The Regional Board requests we take judicial notice of the following

two Attorney General Opinions: 27 Ops.Cal.Atty.Gen. 182 (No. 55-236, March

30, 1956) and 63 Ops.Cal.Atty.Gen. 51 (No. 79-906, January 25, 1980) [1980

WL 96799], both of which were cited in Lake Madrone, supra, 209 Cal.App.3d

163. (See id. at p. 170.) Respondents do not oppose these requests. We grant

them.

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excess sedimentation that smothered estuarine habitat, blocked tidal flows

and direct overland tidal flooding, restricted the beneficial uses of habitat by

fish and endangered and rare species, caused the dieback of tidal marsh

vegetation, degraded habitat for waterfowl, and resulted in excessive salinity,

turbidity and discoloration of the Site’s interior waterways.

In exercising its independent review, the trial court found the fill

material created no such harm and agreed with Respondents that their levee

work did not “unreasonably affect beneficial uses.” But this finding was not

supported by substantial evidence as no rational fact finder could have

reached such a decision on the basis of the evidence in the administrative

record. When the Board responded to Respondents’ opposition to the

tentative cleanup and abatement order, the Board’s evidence demonstrated

that the Site had been a tidal marsh before the levee repair. The Board’s

expert identified the harms resulting from converting the Site from tidal

marsh to a largely dry island. There were adverse impacts to the vegetation

and soil on the island. The Technical Report documented “a mass dieback” of

marsh vegetation throughout the diked interior of the island resulting in

“growth-inhibited marsh vegetation.” The Board’s expert also presented

evidence of harm to wildlife that occurred because the levee cut off tidal

connectivity to the island. Suisun Bay including the Site was designated

critical habitat for Delta smelt and Chinook salmon, and the drainage and

diking of the Site risked reductions in food and precluded access to tidal

channels for foraging. This evidence of harm associated with Respondents’

use of the fill material made it “waste” within the meaning of Porter-Cologne.

Our interpretation aligns with the intent behind Porter-Cologne to preserve

natural resources and protect the environment. (Cf. Lake Madrone, supra,

209 Cal.App.3d at p. 169 [observing that waste could encompass discharged

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fine-grained materials into a stream used for fishing and fish spawning if

fishery were adversely affected].)3

Respondents seek to distinguish Lake Madrone based on the value of

the fill material which they used to make “a valuable improvement to the

property,” in contrast to the sediment flow released from the dam in that

case, noting the sediment “was of no value to the dam operators, who were

discarding it as valueless.” The trial court agreed, albeit incorrectly, that the

fill material could not be waste because it was being used as a valuable

building material and not “something discarded as abandoned or useless.”

But the fact that a particular material may have commercial value does not

preclude it from being waste under the Porter-Cologne Act. We follow Lake

Madrone which clearly instructs that Porter-Cologne does not require “waste”

to be sewage or some sort of worthless byproduct. Its characterization did not

turn on the purported value of the discharged material but rather the harm it

caused to the environment. (See Lake Madrone, supra, 209 Cal.App.3d at p.

170.) Thus, despite the seemingly benign character of the fill material used

by Respondents, it could still be waste if it was harmful when used to repair

the levee.

Waste Management of the Desert, Inc. v. Palm Springs Recycling Center,

Inc. (1993) 7 Cal.4th 478, cited by Respondents for the proposition that the

3

The Regional Board requests we take judicial notice of the following

orders: State Water Resources Control Board Order No. WQ 77-5, State

Water Resources Control Board Water Quality Order No. 2004-004-DWQ.

They contend these orders are relevant to the issue of whether earthen

materials, dredge or fill material, or sediment constitutes waste under

Porter-Cologne. Respondents oppose these requests. We deny the Regional

Board’s requests as to these matters because they are unnecessary to resolve

the issues before us. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7

Cal.4th 1057, 1063 (Mangini) [“ ‘Matters otherwise subject to judicial notice

must be relevant to an issue in the action.’ ”].)

19

fill used here cannot be waste because it was useful material intentionally

deposited, is also distinguishable. There, our Supreme Court interpreted the

definition of “solid waste” in the California Integrated Waste Management

Act (Pub. Resources Code, § 40191), a statute that addresses whether the

owner of recyclable materials could sell them to someone other than “the

exclusive franchisee” selected by a city to provide “solid waste handling

services.” (Id. at p. 481.) In that context, whether the recyclable materials

could be considered waste turned on whether the owner of the materials

elected to sell them as recyclables rather than just throw them away. (Id. at

p. 486.) The court concluded that recyclables were not waste until they were

actually discarded. (Id. at p. 484.) We decline to define “waste” as the term

is used in Porter-Cologne based upon whether a material is worthless or

useless in an economic sense from the owner’s perspective. Such a

construction would not be consistent with the policy of environmental

protection that is to animate the Porter-Cologne Act.

The federal district court opinion Respondents cite, Tahoe-Serra

Preservation Council, Inc. v. Tahoe Regional Planning Agency (D.Nev. 1999)

34 F.Supp.2d 1226, 1254, is neither controlling nor applicable. There, the

court acknowledged “waste” could include sediment generated during home

construction. (Id. at pp. 1251–1254.) Its holding was that the act of building

houses was not a “discharge” or “disposal” of waste that could create a

nuisance. (Ibid.) The district court never concluded that fill material was not

waste, and its holding has no bearing on the question before us.

Respondents’ final argument on this point is that the Corps has

opined that the “definition of waste does not include discharges of dredge or

fill material.” We are not persuaded. The Corps opinion Respondents rely

upon was made in a comment letter from an official in a regional Corps office

20

to the State Board. As such, it lacks the force of law and does not warrant

any deference. (Christensen v. Harris County (2000) 529 U.S. 576, 587

[interpretations contained in an opinion letter lack force of law and do not

warrant deference]).4

For the aforementioned reasons, we also decline the invitation of

amicus to hold that the definition of waste cannot include earthen material

such as soil, sand and gravel. As the authorities make clear, it is not the

character of a material that makes a substance, organic or otherwise, waste

under Porter-Cologne, it is the uses to which the material is employed.

Moreover, not all fill material is created equal or suitable for all purposes,

and approved wetland fill may require specific properties. (Cf. Sierra Club v.

U.S. Army Corps of Engineers (11th Cir. 2007) 508 F.3d 1332, 1336.)

b. Discharge

The trial court also concluded Respondents’ activities did not constitute

“discharges” under Porter-Cologne. Because the term “discharge” is not

defined in Porter-Cologne, the trial court relied on dictionary definitions of

“discharge” that stated the term meant “[t]o allow (a liquid, gas, or other

4

We are also not persuaded that the opinion presents the official

position of the Corps, since it is inconsistent with its frequently enforced and

longstanding position that discharged sediment constitute “pollutants” under

the Clean Water Act. (See, e.g., Borden Ranch Partnership v. U.S. Army

Corps of Engineers (9th Cir. 2001) 261 F.3d 810, 814–815, aff’d 537 U.S. 99

(2002); Rybachek v. U.S. E.P.A. (9th Cir. 1990) 904 F.2d 1276, 1285-1286;

United States v. Deaton (4th Cir.2000) 209 F.3d 331, 335-336.) Indeed, the

Corps reached that conclusion with respect to the fill material Respondents

used here. Following the October 2015 Site inspection, the Corps prepared a

record memorandum which stated, “Field findings confirmed that an

unauthorized discharge of fill had occurred within waters of the U.S.” under

the Clean Water Act. On that basis, the United States sued Respondents,

and the trial court found the fill material Respondents were pollutants under

the Clean Water Act. (See Sweeney District Court Opinion, supra, 2020 WL

5203474, at pp. *22-*25.)

21

substance) to flow out from where it has been confined,” “to give outlet or

vent to,” and “[to] emit.” The court concluded that in its ordinary meaning, “

‘discharge’ . . . does not include a removal.” It observed that “[a]mong the

unauthorized activities” identified in the CAO were “the excavation of ditches

and the removal of vegetation.” As the court concluded these removals of fill

material were not “discharges” within the meaning of Porter-Cologne, the

Board had no authority to regulate Respondents’ activities under the CAO.

The parties do not dispute this common sense meaning of “discharge”

as applied to Porter-Cologne, and neither do we. Rather, whether this

element of the statute was met does not present a legal issue but a factual

one. Factually, the court erred. Its decision impliedly found that the only

activities regulated under the CAO were Respondents’ excavation of ditches

and removal of vegetation. However, no rational fact finder could have made

such a finding. Indeed, the court readily acknowledged that ditch excavation

and vegetation removal were “[a]mong the unauthorized activities” identified

in the CAO. (Emphasis added.) Numerous activities not addressed by the

trial court qualified as discharges. In their response to the 2015 CAO,

Respondents acknowledged they placed fill materials into waters at the Site

in constructing and replacing the levees. Sweeney admitted discharges by

stating the following in his declaration accompanying Respondents’ challenge

to the tentative cleanup and abatement order: “I dug out material from an

artificial ditch inside the levee and placed the material on the existing levee.

Some material was placed where the levee had been breached . . .” The trial

court’s conclusion that there were no discharges at the Site because the

unauthorized activities consisted solely of removals of fill material was error

because it completely disregarded the evidence and significance of discharges

of large amounts of fill to build and replace levees.

22

c. Waters of the State

The trial court also concluded the Board’s issuance of the CAO did not

satisfy the requirement under Porter-Cologne that Respondents’ waste be

discharged into “waters of the state.” The court found the Regional Board’s

consultants were not credible because they initially said the Site interior was

inundated with tides on a daily basis but changed their positions when

Sweeney testified that he had never seen the interior inundated, except for

water in the channels and ditches. The trial court also found “the interior of

the [Site] (except for the channels and ditches) was dry land rather than

waters of the state,” and that most of Respondents’ work occurred on dry

land. Again, the court erred.

Porter-Cologne defines “waters of the state” as “any surface water or

groundwater, including saline waters, within the boundaries of the state.”

(Water Code, § 13050, subd. (e).) There is no real dispute that a significant

portion of Respondents’ discharges of fill material occurred in waters of the

state. The trial court’s finding that “the interior of the island (except for the

channels and ditches) was dry land rather than waters of the states”

recognizes that the Site’s “channels and ditches” were bodies of water. These

were waters of the state. Respondents do not disagree. Respondents’ Brief

addresses the Regional Board’s contentions on this point under the heading

“Most Activities Were Not In ‘Waters of the State.’ ” We consider this an

acknowledgement that at least some of Respondents’ activities were in waters

subject to Porter-Cologne jurisdiction. Nor do Respondents dispute the

Board’s expert opinion that the island’s channels and ditches were subject to

daily tidal action, thus refuting any finding that the Site consisted of only dry

land. We do not see how Respondents could credibly claim that repair and

replacement of segments of the outer levee and restriction of tidal flow into

23

some areas of the Site did not occur in waters of the state. Because

significant waters of the state were affected by Respondents’ activities, this

element of Porter-Cologne was satisfied, and the trial court’s decision to set

aside the CAO on this ground was erroneous.

d. Condition of Pollution

Finally, the trial court concluded Respondents’ activities did not create

a “condition of pollution” at the Site under Porter-Cologne. As we discussed

in our analysis of the “waste” element, the trial court rejected the Regional

Board’s finding that Respondents’ levee work unreasonably altered water

quality so as to alter beneficial uses of the water at the Site, and found there

was no direct evidence of harm to the environment. Accordingly, it concluded

Respondents’ levee work “did not unreasonably affect beneficial uses.” The

trial court went on to find the levee work actually promoted the beneficial

uses of the Site’s waters by aiding in the restoration of functioning duck

ponds. Again, the court made factual and legal errors.

Factually, the findings of no harm to beneficial uses at the Site were

unsupported by substantial evidence as no rational trier of fact could have

reached that conclusion as we explained in Section II.B.2.a., ante.

Legally, the court construed the “condition of pollution” element of

Porter-Cologne far too narrowly. A regional board is authorized to issue a

cleanup and abatement order to a discharger who “creates, or threatens to

create, a condition of pollution or nuisance.” (Wat. Code, § 13304, subd. (e).)

“Condition of pollution” is defined as “an alteration of the quality of the

waters of the state by waste to a degree which unreasonably affects the

waters for beneficial uses.” (Wat. Code, § 13050, subd. (l)(1).)

Notably, under Section 13304(a), a cleanup and abatement order can be

issued when the discharger “creates” a pollution condition or “threatens to

24

create” a condition of pollution. (Wat. Code, § 13304, subd. (a), emphasis

added.) Under the court’s interpretation, the CAO could only issue if

Respondents’ waste created or was creating a condition of pollution. The

court found “the levee work did not unreasonably affect” waters for beneficial

uses and its “the asserted harm to fish was unquantified and uncertain,” so it

set the CAO aside. The trial court’s statutory analysis failed to recognize

that threat of a condition of pollution can justify issuance of a cleanup and

abatement order. (See Wat. Code, § 13304, subd. (a), (e).) Even if we were to

accept the court’s finding that the “asserted harm to fish was unquantified

and uncertain,” the finding would not conflict with issuance of the CAO so

long as Respondents’ discharges threatened to create a condition of pollution.

There was ample evidence in the Board expert’s Technical Assessment and

response to Respondents’ submissions of likely, potential, or threatened harm

to habitat and species that the trial court could not legitimately disregard.

On this basis Porter-Cologne was satisfied, and the trial court’s decision to

set aside the CAO because there was no showing of a condition of pollution

was erroneous.

The Regional Board also argues the trial court committed legal error by

disregarding an independent basis for upholding the CAO unrelated to the

“condition of pollution” element in Section 13304(a). Read fully, the Board

argues that Water Code section 13304, subdivision (a) also allows a regional

board to issue a cleanup and abatement order when discharges of waste into

jurisdictional waters occur “in violation of [a] waste discharge requirement or

other order or prohibition issued by a regional board or the state board.”

(Wat. Code, § 13304, subd. (a).) The Regional Board contends Respondents’

violation of a discharge prohibition in the Basin Plan independently justified

25

the CAO. In light of the conclusions we reach on the CAO, we need not

consider this argument for purposes of our CAO analysis.5

C. Suisun Marsh Preservation Act

In 1977, the Legislature enacted the Suisun Marsh Preservation Act

(Preservation Act or Act), codified in Division 19 of the Public Resources

Code. The Preservation Act protects valuable natural resources within the

Suisun Marsh, and charges BCDC with the ultimate authority over its

implementation. (Pub. Resources Code, § 29000 et seq.; see also

Sustainability, Parks, Recycling & Wildlife Legal Defense Fund v. San

Francisco Bay Conservation and Development Commission (2014) 226

Cal.App.4th 905, 915–916.) As directed under the Act, BCDC prepared and

adopted the Suisun Marsh Protection Plan (Protection Plan) to “preserve the

integrity and assure continued wildlife use of the Suisun Marsh.” (Pub.

Resources Code, § 29113, subd. (a).) The Protection Plan was intended to

“preserve and enhance the quality and diversity of the Suisun Marsh aquatic

and wildlife habitats and to assure retention of upland areas adjacent to the

Marsh in uses compatible with its protection.” (BCDC, Protection Plan (Dec.

1976) <https://www.bcdc.ca.gov/plans/suisun_marsh.html> [as of Feb 18,

2021] (SMPP).)6 Section 29302, subdivision (a) (Section 29302(a)) of the

Preservation Act “imposes a judicially enforceable duty on state agencies to

comply with, and to carry out their duties and responsibilities in conformity

5 The Regional Board requests we take judicial notice of Regional Water

Board Cleanup and Abatement Order No. R2-2017-1021 and Regional Water

Board Cleanup and Abatement Order No. R2-2016-1038. They contend these

orders are other issues related to the Regional Board’s authority to issue the

CAO. Respondents oppose these requests. We deny the Regional Board’s

requests as to these matters because they are unnecessary to resolve the

issues before us. (See Mangini, supra, 7 Cal.4th at p. 1063.)

6 We take judicial notice on our motion of the Protection Plan. (Evid.

Code, § 452, subdivision (c).)

26

with, this this division and the policies of the protection plan.” (Pub.

Resources Code, § 29302, subd. (a).)

The trial court concluded the Preservation Act imposed a restraint on

the Board’s authority and that the Board failed to “act[] in conformity with

the Preservation Act and the policies of the Protection Plan” in violation of

Section 29302(a) when it issued the CAO. It reached this conclusion after

finding Respondents’ “levee and excavation work was done to restore the

duck ponds at Point Buckler and provide waterfowl with food and habitat,

and that [both orders] harm[] waterfowl and their food supply and habitat by

prohibiting [Respondents] from repairing the levee, establishing duck ponds,

and planting duck food.”

In issuing the CAO, the trial court determined the Board undermined

the policy and intent of the Protection Plan to preserve and protect duck

hunting clubs as a legitimate use for wetlands, thus, according to the trial

court, the CAO was invalid. It made no matter to the trial court that the

CAO could also be authorized under Porter-Cologne. In the trial court’s view,

Porter-Cologne’s remedial directives should have been harmonized to account

for the preference for duck clubs expressed in the Protection Plan and

thereby comply with Section 29302(a). The court made a point of observing,

“[T]he Regional Board can comply with the requirements of the Preservation

Act without violating the Porter Cologne Act, and that the two statutes are

not in conflict here.”

The Regional Board contends issuance of the CAO did not violate the

Preservation Act. The Board first argues that the court’s ruling is based

upon a misreading of the Act. The Board argues that in context, Section

29302(a) does not apply to enforcement actions taken by state agencies under

authorizing provisions of state law. We agree. A reading of Section 29302(a)

27

in context confirms that it applies to agency development or control over

wetlands, not an agency’s exercise of police power. While subsection (a)

provides that agencies must act in conformity with the Preservation Act,

subsection (b) exempts agencies from the permit process for wetland

development and subsection (c) exempts agencies from specific water quality

standards or delta outflow requirements. (Pub. Resources Code, § 29302,

subds. (a),(b), (c).) Moreover, section 29301 makes clear that the

Preservation Act “does not increase, decrease, duplicate, or supersede the

authority of any existing state agency.” (Pub. Resources Code, § 29301.) As

part of the same statutory scheme, section 29301 and 29302 should be read

together and each section given its intended meaning and operable effect.

(See Sangster v. California Horse Racing Bd. (1988) 202 Cal.App.3d 1033,

1039, fn. 10 [noting “settled principle” that “ ‘[f]or purposes of statutory

construction, the various pertinent sections of [the statute] must be read

together and harmonized if possible’ ”].) A proper reading of Section 29302

makes clear that it has no impact on the regulatory authority of the Board

over wetlands, and it should not have been relied upon by the trial court to

invalidate the CAO.

But even if Respondents are correct that the Board’s enforcement

actions were subject to the Preservation Act, there still would be no violation.

The trial court’s conclusion that the Preservation Act and Porter-Cologne are

not in conflict was correct as far as it goes. But as we will explain, the court’s

ruling that the Regional Board “failed to act in conformity with the

Preservation Act and policies of the Protection Plan” was error.

The trial court’s conclusion was premised, in part, on its view that the

Regional Board’s regulatory authority over illegal discharges in the marsh

was constrained by the Preservation Act, and that the Act exempted

28

Respondents from compliance with other pollution laws. Section 29301 of the

Preservation Act makes clear neither is the case. It states, “Except as

otherwise expressly provided in this division, enactment of this division does

not increase, decrease, duplicate, or supersede the authority of any existing

state agency.” (Pub. Resources Code, § 29301, emphasis added.) The trial

court did not consider the effect of section 29301, and Respondents have not

identified any provision in the Preservation Act which expressly changes the

authority of the Regional Board, nor have we.

Section 29006, subdivision (c) of the Act supports our view of the

Board’s authority. It states: “No provision of [the Preservation Act] is a

limitation on . . . the power of the Attorney General to bring an action in the

name of the people of the state on his own motion or at the request of any

state agency having standing under provisions of law other than this

division, to enjoin any waste or pollution of the marsh.” (Pub. Resources

Code, § 29006, subd. (c).) Thus, the Preservation Act allows the Attorney

General, at the Regional Board’s request, to pursue actions to stop pollution

of wetlands. Indeed, the Attorney General’s cross-complaint against

Respondents to enforce the CAO is an exercise of such authority.

Nor does the Preservation Act exempt Respondents from compliance

with other water quality laws including Porter-Cologne and the Clean Water

Act. Section 29500 of the Preservation Act establishes that any entity

seeking to undertake a development project in the marsh “shall obtain a

marsh development permit,” which is “[i]n addition to obtaining any other

permit required by law from any local government or from a state, regional, or

local agency.” (Pub. Resources Code, § 29500, emphasis added.) This is

another provision of the act that does not appear to have been considered by

the trial court.

29

Respondents have not identified any provision in the Preservation Act

that impairs the Regional Board’s authority to require discharge permits, or

to bring enforcement actions to curtail or remediate unlawful discharges.

Since it is clear the Preservation Act does not undercut the Regional

Board’s regulatory authority, we will address the “judicially enforceable duty”

the trial court concluded Section 29302(a) imposes on state agencies. The

trial court’s finding that Respondents’ “levee and excavation work was done

to restore duck ponds at [the Site] and provide waterfowl with food and

habitat” and that the CAO “harmed waterfowl and their food supply and

habitat by prohibiting [Respondents] from repairing the levee, establishing

duck ponds, and planting duck food” demonstrated the court’s view that the

Preservation Act favored the restoration of duck hunting clubs over any other

purposes that were intended to be served when the Regional Board issued the

CAO. According to the trial court, by issuing a CAO which undermined duck

habitat restoration and therefore harmed waterfowl and their food supply,

the Regional Board failed to comply with its “judicially enforceable duty”

under the Preservation Act. This was another error. Section 29302(a) does

not mandate the Regional Board comply with any enforceable duty

Respondents claim.

“Courts have delineated what is necessary to establish a mandatory

duty. ‘First and foremost, ... the enactment at issue [must] be obligatory,

rather than merely discretionary or permissive, in its directions to the public

entity; it must require, rather than merely authorize or permit, that a

particular action be taken or not taken.’ [Citation.] ‘It is not enough,

moreover, that the public entity or officer have been under an obligation to

perform a function if the function itself involves the exercise of discretion.’

[Citation.] Moreover, ‘[c]ourts have . . . [found] a mandatory duty only if the

30

enactment “affirmatively imposes the duty and provides implementing

guidelines.” ’ [Citation.] ‘ “ ‘[T]he mandatory nature of the duty must be

phrased in explicit and forceful language.’ [Citation.] ‘It is not enough that

some statute contains mandatory language. In order to recover plaintiffs

have to show that there is some specific statutory mandate that was violated

by the [public entity].” ’ ” (State Dept. of State Hospitals v. Superior Court

(2015) 61 Cal.4th 339, 348–349 (State Hospitals).) Whether a particular

statute imposes “a mandatory duty, rather than a mere obligation to perform

a discretionary function, is a question of statutory interpretation for the

courts.” (Creason v. Department of Health Services (1998) 18 Cal.4th 623,

631.)

Section 29302(a) sets forth no mandatory duty directing state agencies

to carry out activities in a manner favorable to duck hunting clubs. In fact,

Section 29302(a) makes no reference to such clubs. Rather, it provides that

state agencies must carry out their responsibility in conformity with “this

division and the policies of the protection plan.” (Pub. Resources Code, §

29302.) Such broad language did not impose a specific mandatory duty on

the Regional Board. (See State Hospitals, supra, 61 Cal.4th at p. 350 [“A

mandatory duty is created only when an enactment requires an act that is

clearly defined and not left to the public entity’s discretion or judgment.”].)

Section 29302(a)’s reference to “this division” refers to the Preservation

Act, and the Act does not specify any mandatory duty or fealty to duck clubs.

The Preservation Act is codified in seven chapters of the Public Resources

Code and consists of scores of statutory provisions reflecting multiple

objectives and directives for the protection of Suisun Marsh. (See Pub.

Resources Code, §§ 29000–29612.) The trial court did not identify or discuss

any provision in the Preservation Act that would obligate the Regional Board

31

to exercise its enforcement authority in a manner friendly to duck clubs.

Respondents suggest such a duty is imposed by section 29002 of the Act. But

that provision is an all-encompassing statement of legislative findings7 that

describes the marsh and its role as critical habitat for waterfowl and other

wildlife. (Pub. Resources Code, § 29002.) It states “ the policy of the state to

preserve and protect resources of this nature for the enjoyment of the current

and succeeding generations” but it does not establish a clearly defined duty

that prescribes how a state agency must carry out its enforcement duties in

service of such policies. Nor does it elevate the preservation of duck hunting

clubs over tidal wetlands or instruct the agency to prioritize habitat for

waterfowl over other wildlife, including endangered species.

7

Public Resources Code section 29002 states in full: “The Legislature

hereby finds and declares that the Suisun Marsh, consisting of approximately

55,000 acres of marshland and 30,000 acres of bays and sloughs, and

comprising almost 10 percent of the remaining natural wetlands in

California, plays an important role in providing wintering habitat for

waterfowl of the Pacific Flyway; that during years of drought the area

becomes particularly important to waterfowl by virtue of its large expanse of

aquatic habitat and the scarcity of such habitat elsewhere; that the area

provides critical habitat for other wildlife forms, including such endangered,

rare, or unique species as the peregrine falcon, white-tailed kite, golden

eagle, California clapper rail, black rail, salt-marsh harvest mouse, and

Suisun shrew; that the existence of this wide variety of wildlife is due to the

relatively large expanse of unbroken native habitat and the diversity of

vegetation and aquatic conditions that prevail in the marsh; that man is an

integral part of the present marsh ecosystem and, to a significant extent,

exercises control over the widespread presence of water and the abundant

source of waterfowl foods; that the Suisun Marsh represents a unique and

irreplaceable resource to the people of the state and nation; that future

residential, commercial, and industrial developments could adversely affect

the wildlife value of the area; and that it is the policy of the state to preserve

and protect resources of this nature for the enjoyment of the current and

succeeding generations.” (Pub. Resources Code, § 29002.)

32

The “policies of the Protection Plan” do not contain any clearly defined

duty to promote duck hunting clubs to the exclusion of all other Suisun

Marsh policies.8 There are more than 50 enumerated policies across a half

dozen areas in the Protection Plan, and there is no indication that certain

policies take precedence over others.

Respondents contend that notwithstanding its multiple objectives, the

Preservation Act “was enacted to preserve duck clubs and duck habitat.”

Respondents rely on two Plan policies to support this proposition. First, they

cite the “Land Use and Marsh Management” policy which states “managed

wetlands . . . should be included in a primary management area” and within

such area, “existing uses should continue.” They note that duck clubs are

managed wetlands and further observe certain findings under this policy

endorse the “[p]rovision of habitat attractive to waterfowl” and the

“[i]mprovement of water distribution and levee systems.” The second policy

they cite is a Recreation and Access policy which states, “Continued

recreational use of privately-owned managed wetlands should be

encouraged.” It is possible that these two policies would be served by the

duck hunting club Respondents endeavored to restore, but they are not the

Protection Plan’s only policies or anywhere designated as its most important

8

The “policies of the protection plan,” a defined term, refers to “the

policies set forth in Part II . . . of the protection plan.” (Pub. Resources Code,

§ 291113, (b).) Part II of the Protection Plan sets forth myriad “Findings and

Policies” in several different categories. For examples, under the category

“Environment,” four policies are enumerated. Under the category “Water

Supply and Water Quality,” twelve distinct policies are identified. Under the

category “Natural Gas Resources,” six policies are listed, one which has four

subsections and another which has ten. The “Utilities, Facilities and

Transportation” has ten policies. The “Recreation and Access” category list

five policies. Under the “Water-Related Industry” category, there are seven

policies. In the “Land Use and Marsh Management” category, 17 policies are

enumerated. (See generally SMPP, supra.)

33

ones. Other Plan policies, many of which appear to have equal value as

beneficial uses that would be served by implementation of the CAO, were

simply not considered by the court. The Plan contains no directives to state

agencies charged with implementing a statutory scheme that seeks to

advance more than 50 policy objectives that they are to favor any single

objective over any other. Nor is there any instruction for how state agencies

subject to the Preservation Act are to weigh policies which conflict or compete

with each other. Absent such specific directives, entities subject to the Plan

or charged with enforcing it are given considerable discretion in how they

carry out their activities in conformity with the Plan’s policies. The

Preservation Act did not impose a mandatory duty on the Regional Board to

follow any particular policy supportive of duck clubs when pursuing an

enforcement action.

III. ACL ORDER

The trial court also set aside the ACL Order on multiple grounds.

Among other reasons, it found the ACL Order violated the Eighth

Amendment’s prohibition against excessive fines, was in conflict with the

Preservation Act, and was the result of a vindictive prosecution. Throughout

its analysis, it found the Regional Board’s findings were not supported by the

evidence. The Regional Board contends none of these reasons were valid or

justified discarding the ACL Order, and the assessed penalties were proper.

As we will explain, we agree.

A. Standard of Review

In contrast to their agreement on the standards of review that applied

to the CAO, the parties disagree on the standards of review applicable to the

ACL Order.

1. The Trial Court’s Review of ACL Order

34

The first dispute focuses on whether the trial court applied the proper

standard in its review of the ACL Order. The Regional Board asserts that

“the trial court was to review the findings in the [ACL Order] under the

substantial evidence standard” but failed to do so. Respondents contend that

each of the issues they raised to challenge the ACL Order requires a different

standard of review. They contend “the trial court should have applied its

independent judgment” to review of the Board’s findings, but acknowledge

“the applicable standard is not clear.” We conclude the trial court should

have reviewed the Regional Board’s findings for substantial evidence.

As here, when a party challenges a final regional board order in a

petition for writ of mandate under Code of Civil Procedure section 1094.5,

abuse of discretion is established and a writ of mandate should issue if an

agency either failed to proceed in the manner required by law, did not

support its decision with adequate findings, or if its findings are not

supported by the record. (Wat. Code, § 13330, subd. (b); Code Civ. Proc., §

1094.5, subd. (b).)

Section 1094.5, subdivision (c) presents two distinct standards of

review a trial court is to use when determining whether an agency abused its

discretion: “Where it is claimed that the findings are not supported by the

evidence, in cases in which the court is authorized by law to exercise its

independent judgment on the evidence, abuse of discretion is established if

the court determines that the findings are not supported by the weight of the

evidence. In all other cases, abuse of discretion is established if the court

determines that the findings are not supported by substantial evidence in the

light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)

As directed by Water Code section 13330, subdivision (e), the trial

court’s review of an administrative civil liabilities order is governed by the

35

substantial evidence standard. “For the purposes of subdivision (c) of Section

1094.5 of the Code of Civil Procedure, the court shall exercise its independent

judgment on the evidence in any case involving the judicial review of . . . a

decision or order of a regional board for which the state board denies review

under Section 13320, other than a [civil liability] decision or order issued

under Section 13323.” (Wat. Code, § 13330, subd. (e), emphasis added; see

Wat. Code, § 13323, subd. (a) [“any executive officer of a regional board may

issue a complaint to any person on which administrative civil liability may be

imposed pursuant to this article”].) Thus, a trial court does not exercise its

independent judgment on the evidence when it reviews administrative civil

liability orders as it would if it were reviewing cleanup and abatement orders.

(Ante, Section II.A.) Accordingly, while the trial court could exercise its

independent judgment in reviewing the CAO, its standard for the ACL Order

was substantial evidence.

“In substantial evidence review, the reviewing court defers to the

factual findings made below. It does not weigh the evidence presented by

both parties to determine whose position is favored by a preponderance.

Instead, it determines whether the evidence the prevailing party presented

was substantial—or, as it is often put, whether any rational finder of fact

could have made the finding that was made below. If so, the decision must

stand.” (Alberda, supra, 214 Cal.App.4th at p. 435 ; see also Marina County

Water Dist. v. State Water Resources Control Bd. (1984) 163 Cal.App.3d 132,

138 [under substantial evidence review, superior court’s “task would have

been merely to determine whether there was substantial evidence in the

record, taken as a whole, to support the Board’s action, whether the court

itself would have come to the same conclusion on that evidence or not”].)

36

Respondents argue that because the Regional Board’s decision affected

a fundamental vested right “the trial court should have applied its

independent judgment” to the evidence. Generally, “[i]f the administrative

decision involved or substantially affected a ‘fundamental vested right,’ the

superior court exercises its independent judgment upon the evidence

disclosed in a limited trial de novo in which the court must examine the

administrative record for errors of law and exercise its independent judgment

upon the evidence. [Citations.] The theory behind this kind of review is that

abrogation of a fundamental vested right ‘is too important to the individual to

relegate it to exclusive administrative extinction.” (JKH Enterprises, Inc. v.

Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056–1057

(JKH Enterprises).) “On the other hand, ‘[w]here no fundamental vested

right is involved, the superior court’s review is limited to examining the

administrative record to determine whether the adjudicatory decision and its

findings are supported by substantial evidence in light of the whole record.’ ”

(Id. at p. 1057.)

We recognize that “[a]s a general rule, ‘[u]nless expressly provided,

statutes should not be interpreted to alter the common law, and should be

construed to avoid conflict with common law rules.’ ” (California Assn. of

Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284,

297.) But here, Water Code section 13330, subdivision (e) expressly rejects

the independent judgment standard as the basis for the trial court’s review of

administrative civil liability orders, and Code of Civil Procedure section

1094.5, subdivision (c) directs trial courts to review such decisions for

substantial evidence.

37

2. This Court’s Review of the Trial Court Decision

Next, we move to the standard of review we are to employ on appeal,

which the parties also contest. The Regional Board argues that we apply the

same substantial evidence standard the trial court should have applied,

“giving no deference to the trial court and reviewing de novo whether the

Board’s findings in the ACL were supported by substantial evidence in the

entire record.” Respondents, on the other hand, assert that “this Court

reviews the trial court’s findings for substantial evidence.”

We will apply the same standard the trial court should have applied

and review the Board’s findings for substantial evidence. (See Fort Mojave

Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574,

1590 [“[I]f the court should have employed the alternative, substantial

evidence test, its determinations would be subject to review by applying the

same test, de novo, to the administrative record.”]; cf. Ogundare v.

Department of Industrial Relations (2013) 214 Cal.App.4th 822, 828 [“

‘Regardless of the nature of the right involved or the standard of judicial

review applied in the trial court, an appellate court reviewing the superior

court’s administrative mandamus decision always applies a substantial

evidence standard.’ ”].) In doing so, “[w]e review the administrative record to

determine whether the agency’s findings were supported by substantial

evidence, resolving all conflicts in the evidence and drawing all inferences in

support of them.” (JHK Enterprises, supra, 142 Cal.App.4th at p. 1058.)

Of course, we review the trial court’s legal determinations under the de

novo standard. (Building Industry, supra, 124 Cal.App.4th at p. 879;

Foundation, supra, 12 Cal.App.4th at p. 190; Imperial Irrigation Dist. v. State

Water Resources Control Bd. (1990) 225 Cal.App.3d 548, 553.) This means

“we are not bound by the legal determinations made by the state or regional

38

agencies or by the trial court . . . [b]ut we must give appropriate consideration

to an administrative agency’s expertise underlying its interpretation of an

applicable statute.” (Building Industry, supra, at p. 879.)

B. The Basin Plan and Clean Water Act

The ACL Order was premised on discharges in violation of the Regional

Board’s Basin Plan and the Clean Water Act. The Regional Board alleged

two violations in its ACL Complaint. The first alleged was that Respondents

violated Discharge Prohibition No. 9 (Prohibition 9) in the Basin Plan and

section 301 of the Clean Water Act (33 U.S.C. § 1311) for the discharge and

continued placement of approximately 8,500 cubic yards of fill into waters of

the State and the United States. The second violation alleged that

Respondents failed to obtain a certification for the discharge of dredged or fill

material into navigable waters of the United States as required by section

401 of the Clean Water Act (Section 401 Certification). The ACL Order

issued based on these discharges. The trial court concluded the Regional

Board’s findings that justified the ACL Order were not supported by

substantial evidence. Several of its reasons were not rooted in considerations

of substantial evidence, but whatever the reasons, the trial court erred.

1. Grounds for Decision

The Regional Board adopted the Basin Plan pursuant to Water Code

section 13240, as the “legal, technical, and programmatic bases of water

quality regulation in the [r]egion.” (Wat. Code, § 13240; Basin Plan, § 1.4 <

https://www.waterboards.ca.gov/sanfranciscobay/basin_planning.html> (as of

Feb. 18, 2021) (Basin Plan).)9 To protect water quality, the Basin Plan

includes 18 discharge prohibitions that apply throughout the region, and

9 The Regional Board requests we take judicial notice of the Basin Plan

prohibition it found Respondents violated. Respondents do not oppose this

request. We grant the request.

39

must be met at all times. (Id., § 4.2.) Prohibition 9 forbids the discharge of

“[s]ilt, sand, clay, or other earthen materials from any activity in quantities

sufficient to cause deleterious bottom deposits, turbidity or discoloration in

surface waters or to unreasonably affect or threaten to affect beneficial uses.”

(Id., Table 4-1: Discharge Prohibitions.)

Section 301 of the Clean Water Act prohibits the discharge of

pollutants into any waters of the United States without a permit. (33 U.S.C.

§ 1311.) To discharge fill into waters of the United States, one must apply to

the Corps for a Clean Water Act section 404 dredge and fill permit (404

Permit) or a Rivers and Harbors Act section 10 permit (for pier construction).

(33 U.S.C. §§ 1344, 403.) In order to receive a 404 Permit, the applicant,

unless exempt, must obtain a Section 401 certification from the state where

the discharge originates or construction occurs. (33 U.S.C. § 1341(a)(1).)

Applications for such certification in California are filed with a regional

board’s executive officer. (Cal. Code Regs., tit. 23, § 3855.) The 404 Permit

cannot issue unless the regional board provides a water quality certification.

(33 U.S.C. § 1341(a).) The certification may add conditions to the Corps’

permit to ensure that the proposed activity will comply with water quality

standards and “any other appropriate requirement of State law.” (33 U.S.C. §

1341(d).) Under Water Code section 13385, subdivision (a), a person who

violates Clean Water Act sections 301 or 401 “shall be liable civilly.” (Wat.

Code, § 13385, subd. (a)(5).)

In its statement of decision, the trial court expressed multiple,

overlapping reasons why, even without issuance of a permit or certification,

Respondents did not violate the Basin Plan or the Clean Water Act. As

discussed below, none of its reasons justified setting aside the ACL Order.

a. Waters of the United States

40

Just as in its CAO decision, the trial court concluded the ACL Order

was invalid because the Regional Board did not demonstrate that

Respondents’ fill material was discharged into “waters of the United States.”

It found “the evidence would not be enough to establish that the island (other

than interior channels and ditches) is waters of the United States.”

As with the CAO, the court’s rationale overlooks the fact that at least

some of Respondents’ discharges of fill material occurred in waters of the

United States. The trial court’s finding that “the evidence would not be

enough to establish the island (other than the interior channel and ditches) is

waters of the United States” recognizes that the island’s water filled

“channels and ditches” were jurisdictional waters. Respondents do not

disagree. Because at least some waters of the United States were impacted

by Respondents activities, the trial court erred in setting aside the ACL

Order on this ground.

b. Harm to Beneficial Uses

The trial court also found “the evidence [was] not sufficient to support

the conclusion that the levee work adversely affected beneficial uses”, nor

could it “support a finding that that the levee work violated requirements in

the basin plan that prohibit discharges into surface waters that affect

beneficial uses.”

Had the court applied the substantial evidence standard to the

Regional Board’s findings, as we do, it would have acknowledged ample

evidence of the levee work’s harm beneficial uses. In the Board’s response to

Respondents’ opposition to the ACL Complaint, the Board’s expert presented

evidence and opinions similar to those presented in support of the CAO. His

reports provided evidence the Site was tidal marsh before Respondents’ levee

construction. He also identified the harm that resulted from converting the

41

Site, which included the loss of food production into the surrounding channels

where fish feed and the loss of shallow water habitat in the island’s tidal

channels where fish would spawn. The expert also presented evidence that

mass vegetation die-off occurred and endangered fish were harmed because

the levee cut off tidal connectivity to the island. There was ample evidence

that Respondents’ activities unreasonably affected or threatened to affect

beneficial uses.

c. Whether Findings Support the Decision

In an apparent reference solely to the Basin Plan violation, the court

concluded “[t]here is no finding about which requirements are at issue, and

no reference to the administrative record that makes the reference clear.”

The grounds for the Basin Plan violation are in the ACL Complaint, which

states Respondents “discharged and the Club permitted continued placement

of approximately 8,586 cubic yards of fill into waters of the State and United

States, violating Basin Plan Prohibition No. 9 and Clean Water Act section

301. The fill remains in waters of the State and United States, and is

contributing to the ongoing degradation of approximately 27.1 acres of

surface water and wetlands at the Site.” The analysis accompanying the

ACL Complaint further explains the reasons for the Basin Plan violation

with reference to the administrative record. Over the course of the

enforcement proceeding, the Board submitted evidence supporting the factual

bases for these violations. The ACL Order was sufficiently supported by the

Board’s finding that Respondents’ activities violated Prohibition 9.

d. Number of Discharges

The trial court also concluded that the evidence did not support the

Regional Board’s conclusion that the violation was continuous and had

exceeded 1,000 days by the time of the ACL hearing. In the court’s view,

42

“[b]ecause the violation requires a discharge, and the discharge requires an

addition, the violation ended when the addition stopped.” The Regional

Board argues the trial court erred when it rejected the number of days

Respondents were in violation of the law as the basis for calculating the

penalty.

From the time levee construction began in early 2014 through the date

of the ACL hearing in December 2016, the Regional Board determined

Respondents’ violation had occurred for 1,013 days and was continuing. The

number of days the condition existed was used as a multiplier to determine

Respondents’ maximum liability prior to any adjustments.

We see no reason to address the legal issue that would require us to

define the temporal nature of discharges. Generally, courts decide actual

controversies rather than academic propositions. (Bell v. Board of

Supervisors (1976) 55 Cal.App.3d 629, 636–637.) At the ACL hearing, a

member of the Regional Board prosecution team who worked on the penalty

determination explained the basis for the penalty imposed, saying: “The $4.6

million penalty corresponds to the base liability related to volume of fill

discharge, and does not include liability for days of violation.” Thus, while

the continuous nature of the violation factored into initial liability

calculations, the daily tally was not used to calculate the $4.6 million penalty

that was ultimately proposed. Accordingly, it was not relevant or material to

the $2.8 million ACL Order the Board ultimately assessed. We later address

the propriety of the ACL Order’s penalty amount. (See post, Sec. III.C.3.)

2. Issue Preclusion

In supplemental briefing, the Regional Board contends that legal

conclusions and factual findings recently made by the district court in a

separate enforcement action against Respondents control issues in this case

43

related to the Clean Water Act under issue preclusion principles of res

judicata. Res judicata “ ‘preclud[es] parties from contesting matters that they

have had a full and fair opportunity to litigate,’ ” and “protect[s] against ‘the

expense and vexation attending multiple lawsuits, conserve judicial

resources, and foster reliance on judicial action by minimizing the possibility

of inconsistent decisions.’ ” (Taylor v. Sturgell (2008) 553 U.S. 880, 892.)

In the Sweeney District Court Opinion, supra, 2020 WL 5203474, the

district court entered judgment in favor of the plaintiff United States against

Respondents. (Id. at p.*44.) The district court determined “Sweeney violated

and remains in violation of the Clean Water Act . . . as a result of

unpermitted, non-exempt construction of a levee and other additions of

pollutants (dredged or fill material) . . . to waters of the United States . . . on

Point Buckler Island. . .” (Ibid.) The court also found the Club in violation of

the Clean Water Act for Sweeney’s actions. (Id. at p. *45.) In reaching its

decision, the district court made several factual findings. It found that

Respondents’ levee blocked tidal flow into the island resulting in the

destruction of wetlands vegetation and harm to water quality and aquatic

habitat that adversely affected fish. (Id. at pp. *16–18.) In determining that

Respondents violated the Clean Water Act, the court concluded as a legal

matter that Respondents’ discharges occurred in “waters of the United

States” because “at the time [Respondents] initiated their activities, Point

Buckler Island consisted almost entirely of tidal-water channels and marsh

wetlands abutting tidal waters . . . and [Respondents] discharged pollutants

into those aquatic waters.” (Id. at pp.*26–32.)

The Regional Board contends the doctrine of issue preclusion applies to

the district court’s determination that Respondents violated Clean Water Act

section 301.

44

There is no need for us to analyze the application of issue preclusion in

this case. Our conclusions that the ACL Order is supported by substantial

evidence and that none of the other grounds asserted in the court’s decision

for setting aside the ACL Order were correct obviates any need to apply the

federal findings.10

C. Eighth Amendment

The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” (U.S. Const., 8th Amend.)

The Eighth Amendment prohibition on excessive fines “ ‘limits the

government’s power to extract payments, whether in cash or in kind, “as

punishment for some offense.” ’ ” (United States v. Bajakajian (1998) 524

U.S. 321, 328 (Bajakajian).) The California Constitution contains a similar

protection. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37

Cal.4th 707, 728 (R.J. Reynolds).) The touchstone of constitutional inquiry

under the excessive fines clause is proportionality. (Bajakajian, at p. 334.)

The amount of the fine must bear some relationship to the gravity of the

offense that it is designed to punish, and a fine that is grossly disproportional

to the gravity of the defendant’s offense violates the excessive fines clause.

(Ibid.) In deciding the matter, we consider “(1) the defendant’s culpability;

(2) the relationship between the harm and the penalty; (3) the penalties

imposed in similar statutes; and (4) the defendant’s ability to pay.” (R.J.

Reynolds, at pp. 728, 730.)

10

Respondents make several requests for judicial notice in association

with their opposition to the Regional Board’s res judicata arguments. Since

we need not address the res judicata argument, we deny the Respondents’

requests as unnecessary to resolve the issues before us. (See Mangini, supra,

7 Cal.4th at p. 1063.)

45

“We review de novo whether a fine is constitutionally excessive and

therefore violates the Eighth Amendment’s Excessive Fines Clause.” (United

States v. Lewis (9th Cir. 2003) 62 Fed.Appx. 757, 762; see also Cooper

Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 435–36

(Cooper).). Factual findings made by the trial court in conducting the

excessiveness inquiry, of course, must be accepted unless clearly erroneous.”

(Bakakajian, supra, 524 U.S. at pp. 434436, fn.10.)

The trial court found the penalty was “grossly disproportional to the

gravity of Plaintiffs’ offense.” This was because it considered Respondents’

culpability to be low; the penalty was grossly disproportional to the harm

caused; there was a gross disparity between penalties imposed by the

Regional Board for similar behavior; and Respondents could not afford to pay

the penalty imposed. The Board contends the penalty was not

constitutionally excessive.

We agree with the Board. The trial court’s findings were based on the

improper exercise of its independent judgment, so we will disregard them.

There was substantial evidence in the administrative record to support the

Board’s findings that bear on each prong of the constitutional analysis. We

also reach different legal conclusions than the trial court.

1. Respondents’ culpability

The trial court found Respondents’ culpability was low. It based this

conclusion largely on Sweeney’s testimony. Sweeney said that he contacted

certain state agencies before beginning work and “came away with the

understanding that no permits were needed.” The court also credited

Sweeney’s testimony regarding his belief that permits were needed only for

islands submerged by the tides whereas the Site was “high and dry” as well

as his ignorance about the need for “[Clean Water Act section] 401

46

certifications” from the Regional Board. The court also found no evidence

that marsh landowners commonly understood levee work requires permits or

that Clean Water Act certifications were common knowledge. Because the

court’s findings were based improperly on its exercise of independent

judgment and weighing of the evidence, we do not accept them.

Had the court correctly applied the substantial evidence standard to

the Regional Board’s findings, as we do, it would have acknowledged ample

evidence of Respondents’ high culpability. Years before his purchase of the

Site, Sweeney had experience with various government agencies with

jurisdiction over Suisun Marsh at another property he owned. His levee work

there resulted in illegal discharges of fill contrary to permit conditions and

direction from the relevant agencies, and he was found in violation for his

work. Sweeney had also been involved with other duck hunting clubs in

Suisun Marsh and had prior experience securing permits for maintenance

activities that would discharge fill into the marsh. He had previously

communicated by email with state agencies for permits to repair a levee

breach at one of those clubs. In addition, there was ample evidence that

Sweeney continuously performed work at the Site after regulators directed

him to stop. These experiences sufficiently demonstrated Sweeney’s willful

indifference toward the regulatory process and a knowing rejection of the

need to apply for permits in order to work at the Site. These facts

demonstrated Sweeney’s high culpability.

2. Relationship between the harm and the penalty

The trial court also concluded the penalty was “grossly disproportional

to the harm.” It based this conclusion on a finding that the Regional Board

had not established that fish used the channels at the Site or that there was

harm to any specific endangered species of fish. The court, on the other hand,

47

viewed the benefits to the environment of duck ponds over tidal marsh were

“clear and definite.” It found that had Respondents’ been allowed to complete

their levee work, they would have “created a net benefit for the environment

rather than a harm.” Again, the court’s improper exercise of its independent

judgment led it to err, and we cannot validate its finding.

Had the court applied the substantial evidence standard to the

Regional Board’s finding, as we do, it would have acknowledged that the

substantial penalty correlated with the major harm caused by Respondents’

activities. The Board’s expert presented ample evidence that Respondents’

levee construction converted the Site from tidal marshland and adversely

impacted beneficial uses at the Site including estuarine habitat, fish

migration, preservation of endangered species, fish spawning, and wildlife

habitat. (See ante, Section III.B.1.b.) In consideration of these impacts, the

Board categorized the harm caused by Respondents as “major” when

determining the penalty. Since there was substantial evidence to support

this assessment in the record, we conclude Respondents caused significant

harm and it was reasonably related to the significant penalty imposed.

3. Penalties imposed in similar statutes

This factor has been explained “as the sanctions imposed in other cases

for comparable conduct.” (Cooper, supra, 532 U.S. at p. 435.) The trial court

found “a great disparity between the non-existent or modest penalties the

Regional Board has imposed for similar behavior, and the severe penalty

imposed here.” It observed that the “top-ten Regional Board penalties have

generally been reserved for discharges of millions of gallons of untreated

sewage and discharges resulting in hundreds of observably dead fish,” and

this case posed “no threat to public health or observably dead fish.” It also

48

observed that “there is no evidence that the Regional Board has ever imposed

any penalties on duck clubs in [the] Marsh for levee work.”

We are not persuaded that the $2.8 million penalty was not comparable

to other cases or unreasonable. The ACL Complaint originally proposed a

$4.6 million penalty for Respondents’ alleged unauthorized discharges. It

included a 14-page exhibit explaining its method for arriving at the proposed

penalty in accordance with the State Board’s Water Quality Enforcement

Policy methodology for assessing civil liabilities. The prosecution team

considered, and explained, how it considered numerous statutory criteria to

determine the liability including the nature and extent of Respondents’

violations; the degree of toxicity of the discharge; the economic benefits to

Respondents from the discharges; and other factors similar to the ones

considered in our constitutional analysis here. The $4.6 million penalty

originally proposed fell between the maximum liability amount of

$39,211,860 and the minimum amount of $1,550,859 and reflected the

continuing and harmful nature of Respondents’ violations. (See Ojavan

Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 398

[$9.5 million civil penalty against a developer for 73 violations of Coastal Act

not excessive].) While significant, the $4.6 proposed penalty already reflected

reductions recommended by the prosecution on the basis of factors as justice

required. A member of the Board’s prosecution team testified that one

adjustment was made to be consistent with earlier Regional Board orders

involving a single entity’s dredging and fill. Even at the proposed $4.6

million, the prosecution team found it to be “in line with other actions taken

by this Regional Water Board and the resulting harm caused by Dischargers’

conduct.” At the ACL hearing, a prosecution team member compared the

proposed $4.6 million penalty to a $5 million settlement the Regional Board

49

had recently entered with a municipal entity “for a similar discharge and fill,

Clean Water Act violations.” This is enough to satisfy us that the $2.8

penalty that was ultimately imposed was not disproportionately high.

4. Ability to pay

The trial court concluded that Respondents could not afford to pay the

$2.8 million penalty. Based on “evidence from Sweeney and a financial

expert,” the court found the Regional Board overestimated Respondents’ net

worth by not accounting for “obvious liabilities,” including the costs of

compliance imposed by the CAO (which it had concurrently set aside). The

court’s conclusion again resulted from its improper exercise of independent

judgment, and we cannot accept the court’s findings.

Had the court applied the substantial evidence standard to the

Regional Board’s findings, as we do, it would have acknowledged substantial

evidence of Respondents’ ability to pay. The Regional Board prosecution staff

completed just such an analysis in support of the proposed $4.6 million

penalty. It considered Respondents’ net cash flow and net worth. The

analysis acknowledged that the most complete and accurate accounting of

such information comes from an entity’s own disclosures, which Respondents

did not provide. Absent such direct disclosures from Respondents, the

prosecution team reviewed public records for assets belonging to Respondents

which included other property Sweeney purchased. It also considered other

assets, such as Point Buckler, duck club membership sales, and funds from a

Tiburon property Sweeney recently sold. Based on the available information

and the lack of any objective financial information from Respondents refuting

its analysis, the prosecution team concluded Respondents could pay the

original proposed penalty. (Cf. State of California v. City and County of San

Francisco (1979) 94 Cal.App.3d 522, 530–531 [once evidence established a

50

statutory violation under Water Code provision, defendant had burden to

establish the court should impose penalty less than statutory maximum].)

The Board itself recognized it “did not have sufficient evidence to do any

adjustments based on the ability to pay. . . . [b]ecause we, at the end of all of

this, [did] not have documented evidence of Mr. Sweeney’s net worth or cash

flow, or anything close.” On this record, there was sufficient evidence

supporting Respondents’ ability to pay the penalty.

Moreover, the trial court’s findings were clearly erroneous and could

not survive any standard of review. The evidence from Sweeney consisted of

a declaration attesting to the lack of net taxable income, but he failed to

provide any objective information about Respondents’ financial condition that

could support his conclusion (e.g., financial statements, tax returns) even

though he had the opportunity to do so. The evidence from the financial

expert was also weak. The expert, a Certified Public Accountant, opined that

Sweeney had a negative net worth, after reviewing the prosecution team’s

analysis and information told to him by Sweeney. But he made clear “there

[had] been no verification of any of the information provided by Mr.

Sweeney.” This evidence provides no support for the court’s inability to pay

finding.

In light of our analysis, we cannot conclude the $2.8 million assessed in

civil penalties was “grossly disproportional” to the gravity of the offense so as

to violate the Eighth Amendment’s proscription against excessive fines.

D. Suisun Marsh Preservation Act

Just as it did with the CAO, the trial court concluded when the

Regional Board issued the ACL Order, it failed to “act[] in conformity with

the Preservation Act and the policies of the Protection Plan” in violation of

Section 29302(a). The court employed the same Preservation Act analysis it

51

had used to set aside the CAO to set aside the ACL Order for violating

Section 29302(a). We incorporate our earlier analysis here (see ante, Section

II.C.) and for the same reasons conclude that the trial court’s determination

that issuance of the ACL Order violated Section 29302(a) was error.

E. Vindictive Prosecution

“The constitutional protection against prosecutorial vindictiveness is

based on the fundamental notion that it ‘would be patently unconstitutional’

to ‘chill the assertion of constitutional rights by penalizing those who choose

to exercise them.’ ” (In re Bower (1985) 38 Cal.3d 865, 873.) When a

“defendant shows that the prosecution has increased the charges in apparent

response to the defendant’s exercise of a procedural right, the defendant has

made an initial showing of an appearance of vindictiveness.” (People v.

Puentes (2010) 190 Cal.App.4th 1480, 1486.) “Once this prima facie case is

made, the prosecution bears a ‘heavy burden’ of dispelling the appearance of

vindictiveness as well as actual vindictiveness.” (Ibid.) We review the trial

court’s factual findings for substantial evidence and its legal determinations

de novo. (People v. Sanchez (2020) 49 Cal.App.5th 961, 983.)

In its statement of decision invalidating the ACL Order, the trial court

observed that the parties had not identified any civil case in which the

vindictive prosecution doctrine was applied, but nonetheless concluded, “It

may be the rare civil case in which a party can make the prima facie showing

needed, but in this case the showing has been made.” The court found the

penalties were “imposed in retribution for [Respondents’] lawsuit challenging

the Regional Board’s September 2015 order.” It further chided the Board for

making no attempt to show the penalties were not imposed for vindictive

reasons and said the Board “ha[d] not met its burden of dispelling the

appearance of vindictiveness as well as actual vindictiveness.” The Regional

52

Board contends there was no basis for the vindictive prosecution finding. We

agree.

As an initial matter, Respondents cite no authority, and we have found

none, that applies the vindictive prosecution doctrine outside of criminal

proceedings. We conclude the court erred in its novel application of the

doctrine and in setting aside the ACL Order for this reason. The vindictive

prosecution doctrine has also not yet been held to apply to proceedings before

administrative bodies.

Even if we assume, without deciding, that the doctrine can apply and

that Respondents made a prima facie case, there was substantial evidence

disregarded by the trial court that rebutted the presumption. The Regional

Board had contemplated imposing civil liability on Respondents months

before Respondents filed the petition for writ of mandate that led to the stay

of the 2015 CAO and the Board’s eventual decision to rescind it. In July

2015, Respondents’ conduct was internally referred to the Board’s

enforcement unit for preparation of an administrative civil liability

complaint. That same month, the initial notice of violation was served on

Respondents and informed them that “[a]ny person who violates is . . . subject

to administrative civil liability.” The 2015 CAO also informed Respondents

that their “failure to comply [with the CAO] may result in the imposition of

civil liabilities.” Thus, civil liabilities against Respondents were considered

by the Board well before Respondents filed suit over the 2015 CAO. This

evidence was sufficient to dispel the appearance of vindictiveness.

There was also substantial evidence to dispel actual vindictiveness. As

discussed in our Eighth Amendment analysis (see ante, Section III.C.), the

record included the Board’s detailed analysis showing how it arrived at the

proposed penalty in accordance with the State Board’s Water Quality

53

Enforcement Policy methodology for assessing civil liabilities. The

prosecution team considered and explained how its application of numerous

statutory criteria to determine Respondents’ liability including the nature

and extent of the violations; the degree of toxicity of the discharge; the

economic benefits to Respondents from the discharges; and other factors. The

eventual $4.6 million proposed penalty corresponded to the base liability

calculation related to volume of fill discharged by Respondents. Thus, the

record included clear analysis regarding the grounds for and amount of the

ACL Order, which was plainly connected to the continuing and harmful

nature of Respondents’ violations, and not vindictiveness or retaliatory

intent.

IV. FAIR HEARING (APPLICABLE TO CAO AND ACL ORDER)

Code of Civil Procedure section 1094.5, subdivision (b)’s “requirement of

‘a fair trial’ means that there must have been ‘a fair administrative hearing.’

” (Lateef v. City of Madera (2020) 45 Cal.App.5th 245, 252; Code Civ. Proc., §

1094.5, subd. (b) [inquiry in administrative mandamus cases extends to the

question “whether there was a fair trial”].) Because the ultimate

determination of procedural fairness presents a question of law, we “review

the fairness of the administrative proceeding de novo.” (Doe v. University of

Southern California (2016) 246 Cal.App.4th 221, 239; TWC Storage, LLC v.

State Water Resources Control Bd. (2010) 185 Cal.App.4th 291, 296.)

The trial court concluded that Respondents did not receive a fair trial

in either the CAO or ACL hearing. The Regional Board contends the

proceedings were fair. We agree with the Board. As we will explain, the trial

court again erred. Moreover, Respondents’ additional arguments on appeal

do not persuade us otherwise.

A. Separate Functions

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“One of the basic tenets of the California [Administrative Procedure

Act] . . . is that, to promote both the appearance of fairness and the absence of

even a probability of outside influence on administrative hearings, the

prosecutorial and, to a lesser extent, investigatory, aspects of administrative

matters must be adequately separated from the adjudicatory function.”

(Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 91,

italics omitted; Govt. Code § 11425.10, subd. (a)(4) [“The governing procedure

by which an agency conducts an adjudicative proceeding is subject to [the

requirement that] [t]he adjudicative function . . . be separated from the

investigative, prosecutorial, and advocacy functions within the agency . . .”].)

“[B]y itself, the combination of investigative, prosecutorial, and

adjudicatory functions within a single administrative agency does not create

an unacceptable risk of bias and thus does not violate the due process rights

of individuals who are subjected to agency prosecutions.” (Morongo Band of

Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731,

737 (Morongo).) “The due process right to an impartial administrative

decisionmaker is protected when staff counsel performing a prosecutorial role

are distinct from counsel playing an advisory role in the same matter and the

counsel are screened from each other.” (Drakes Bay Oyster Co. v. California

Coastal Com. (2016) 4 Cal.5th 1165, 1175.)

“To prove a due process violation based on overlapping functions thus

requires something more than proof that an administrative agency has

investigated and accused, and will now adjudicate. ‘[T]he burden of

establishing a disqualifying interest rests on the party making the assertion.’

. . . That party must lay a ‘specific foundation’ for suspecting prejudice that

would render an agency unable to consider fairly the evidence presented at

the adjudicative hearing … it must come forward with ‘specific evidence

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demonstrating actual bias or a particular combination of circumstances

creating an unacceptable risk of bias’…. Otherwise, the presumption that

agency adjudicators are people of ‘conscience and intellectual discipline,

capable of judging a particular controversy fairly on the basis of its own

circumstances’ will stand unrebutted.” (Today’s Fresh Start, Inc. v. Los

Angeles County Office of Education (2013) 57 Cal.4th 197, 221–222.)

The trial court ruled that Respondents did not receive a fair hearing, in

part, because the Regional Board failed to separate functions. Observing the

Board had identified a prosecution team and an advisory team, the court

suggested impropriety because the CAO and ACL Order were written by the

prosecution team rather than the advisory team.11 The court added that the

“advisory team did not take an active role in the judicial decision-making

function on the substantive legal and factual issues in dispute,” and thus

“relied on the prosecution team, which was biased in favor of its own

positions.” For these reasons, the court found the Regional Board “appeared

to be biased in favor of the prosecution team, and against [Respondents].” In

their appellate brief, Respondents describe the Board as simply “rubber-

stamping” the prosecution team’s proposed orders as a form of improper

separation. They also assert functions were not separated because “Bruce

Wolfe, the Board’s Executive Officer, commingled prosecutor and decision-

making functions.”

11

It is customary for the prevailing party in litigation to provide the

decision-maker with a proposed decision. (See Cal. Rules of Court, Rule

3.1312.) That appears to be just what happened in each of these companion

cases in the trial court, and we are not aware of any authority that concludes

it is a violation of due process for the decision maker to adopt a proposed

decision in an administrative or judicial proceeding as its final ruling.

Respondents cite no authority that suggests simply the adoption of a

proposed decision is improper.

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We have no reason to conclude Respondents received unfair hearings

because the agency purportedly shirked an obligation based on insufficiently

separated functions. The evidence shows the Board’s duties were separated.

The hearing procedures for both the CAO and ACL explained: “To help

ensure the fairness and impartiality of this proceeding, the functions of those

who will act in a prosecutorial role by presenting evidence for consideration

by the Regional Water Board (Prosecution Team) have been separated from

those who will provide advice to the Regional Water Board (Advisory Team).”

After identifying the specific individuals in each team, the Board further

explained: “Any members of the Advisory Team who normally supervise any

members of the Prosecution Team are not acting as their supervisors in this

proceeding, and vice versa. Members of the Prosecution Team may have

acted as advisors to the Regional Water Board in other, unrelated matters,

but they are not advising the Regional Water Board in this proceeding.

Members of the Prosecution Team have not had any ex parte communications

with the members of the Regional Water Board or the Advisory Team

regarding this proceeding.” At the outset of both hearings, the Board Chair

repeated this separation of functions. The separation of prosecution and

advisory roles was followed in both proceedings.

Further, the trial court concluded there was no separation of powers

but identified no threat to fairness that occurred as a result. The trial court’s

findings were based on the appearance of bias but lacked “ ‘specific evidence

demonstrating actual bias or a particular combination of circumstances

creating an unacceptable risk of bias.’ ” (Morongo, supra, 45 Cal.4th at p.

741; see also Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d

781, 792 [“ ‘Bias and prejudice are never implied and must be established by

clear averments.’ ”].) Respondents’ contention that the Board merely “rubber-

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stamped” the tentative cleanup and abatement order is also unsupported by

any evidence. The record shows, and Respondents do not dispute, that the

Board adhered to its procedures governing adjudicatory hearings before the

Board. (See Cal. Code. Regs., tit. 23, § 648 et seq.) Absent such evidence of

actual bias or evidence that the Board failed to maintain internal separation

and created a risk of bias, we presume the Board evaluated the factual and

legal arguments on their merits.

Respondents’ reference to the Board’s Executive Officer Bruce Wolfe

does not provide evidence of improper separation. Initially, they claim that

the Board’s failure to separate functions when Wolfe issued the 2015 CAO

constitutes a due process violation. The Regional Board does not dispute that

prosecutorial and advisory functions were not separated when Wolfe issued

the 2015 CAO. But the 2015 CAO was rescinded, and was no longer at issue.

The Board’s functions were separated for the enforcement actions at issue in

this appeal. Although Respondents point to Wolfe’s addition to the advisory

team in these enforcement actions, they objected to his participation, and by

early June 2016—within a month of the objection—the Board Chair agreed to

remove him from the advisory team. There is no indication he participated in

either a prosecutorial or advisory capacity at either hearing. Indeed, at the

CAO hearing, the Board chair expressly acknowledged someone had “stepped

into the role that Bruce Wolfe would normally serve.” As an indicator of

Wolfe’s ongoing involvement, Respondents refer to the CAO which required

Respondents to submit various corrective action plans “acceptable to the

Executive Officer.” We are not persuaded. By that time, the CAO had been

adjudicated without Wolfe’s participation.

B. Board Rulings

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The trial court also found Respondents received unfair CAO and ACL

hearings because the Board purportedly failed to decide all the issues needed

to resolve the dispute and failed to consider factual and legal issues raised by

Respondents. In their appellate brief, Respondents say they contested the

CAO with “29 pages of legal arguments [to which] the Board said absolutely

nothing.” They allude to the same perceived deficiency in the ACL hearing

process.

We have no reason to conclude Respondents received unfair hearings

because the agency shirked a purported obligation to decide every legal and

factual issue raised by Respondents. As the trial court recognized, the

California Administrative Procedure Act only requires that an administrative

decision following an adjudicative proceeding “shall be in writing and shall

include a statement of the factual and legal basis for the decision.” (Gov.

Code, § 11425.50, subd. (a).) There is no requirement that the agency provide

a written response to every issue raised by the parties. Here, the CAO

included over 75 findings, and the ACL Order included over a dozen findings

and an extensive analysis explaining its methodology for determining the

civil liabilities imposed. Both asserted facts and made findings in support of

the violations found and attendant penalties. This satisfied Respondents’

entitlement to due process.

C. Insufficient Trial Time

The trial court found Respondents received unfair hearings because the

Board did not allow sufficient time for trial. For the CAO hearing,

Respondents had been given one hour to present their case, which the court

found was “not enough to try a case as complex as this one” and insufficient

to give Respondents “a fair opportunity to present their opening statement,

examine their percipient witnesses, cross-examine the prosecution team’s

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witnesses, and make their closing argument.” The court further found “the

short time gave the appearance that the Regional Board was not interested in

determining the truth, but rather . . . it intended and expected to rely on

staff, as it usually did, to provide the facts and law.” The court observed that

Respondents were allowed “two hours” for the ACL hearing but deemed it

inadequate for “[a] case of this complexity,” which “calls for sufficient time so

that the Regional Board can do more than decide how much of a penalty to

impose.” Respondents assert the insufficient trial time in both proceedings

rendered the Board incapable of resolving the factual issues they raised.

We have no reason to conclude Respondents received unfair hearings

because of inadequate time. There is no requirement that hearings last for

any particular amount of time (see Cal. Code Regs., tit. 23, § 648 et seq.), and

reasonable time limitations are necessary and inevitable. (Cf. Reed v.

California Coastal Zone Conservation Com. (1975) 55 Cal.App.3d 889, 895

[petitioners who were restricted to 10 minutes’ oral argument at hearing and

never objected not denied due process].) Here, the Board doubled the amount

of time originally allotted to each party in advance of the CAO hearing so

that each party had one hour. The CAO hearing lasted for almost 4 hours

and included extensive questioning of both sides by Board members.

Similarly, the Board doubled the amount originally allotted to each party in

advance of the ACL hearing so that each party had two hours. In both

hearings, the time allotment was reasonable and did not offend due process.

Further, in adopting the CAO and issuing the ACL Order, the Board made

dozens of findings of fact addressing the disputes between the parties.

D. Submission of Evidence and Arguments

In their appellate brief, Respondents contend the Board’s procedures

“condoned staff sandbagging.” In their view, they were “sandbagged” because

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the Board submitted their evidence and arguments in reply to the

Respondents’ oppositions to the proposed enforcement orders. This was not

evidence of unfairness. Again, the record shows, and Respondents do not

dispute, that the Board adhered to procedures governing adjudicatory

hearings before the Board. (See Cal. Code. Regs., tit. 23, § 648 et seq.) The

authority Respondents rely on pertaining to summary judgment procedures

in litigation does not apply.

E. Availability of Hearing

In their appellate brief, Respondents assert the Board “showed

disrespect for due process and the rule of law” because the Board did not

provide “either a pre-deprivation or post-deprivation hearing on the [2015

CAO].” This argument is borderline frivolous. The Board rescinded its 2015

CAO, and it is no longer at issue. Respondents received full hearings prior to

the issuance of both the CAO and ACL Order.

F. The Regional Board’s Expert

In their appellate brief, Respondents assert “the Board’s principal

expert was biased against John Sweeney,” and offer this as another reason

the hearings were unfair. The expert at issue was Stuart Siegel. Both

Sweeney and the Board considered retaining Siegel as an expert, and the

Board eventually retained him. He was the principal author of the Board’s

Technical Assessment. Respondents describe personal animosity between

Sweeney and Siegel, and at one point after being retained by the Board,

Siegel emailed several people the following: “BE CAREFUL in dealing with

Sweeney. I’ve been doing a little recently. . . . HIGH RISK situation.”

Respondents contend Siegel’s personal animosity towards Sweeney and

“financial interest in discrediting Mr. Sweeney’s accusations of fraud, which

could have threatened his consulting practice” evidenced bias. They also

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argue the “great deference” the Board accorded Siegel for both his

assessments and legal analysis demonstrated bias.

These contentions do not present evidence of bias, nor do they describe

circumstances that create an unacceptable risk of bias. As Respondents

recognize, Siegel was the expert for the prosecution team, not a part of the

advisory team or the Board. As such, he was a witness not a decisionmaker

and any animosity he had towards Sweeney was irrelevant to whether

Respondents received a fair hearing from the Board. Also, since Siegel was

not an adjudicator, his purported “financial interest” is not the type of

“pecuniary interest” that establishes the improper bias that affects

adjudication. (See Haas v. County of San Bernardino (2002) 27 Cal.4th 1017,

1025 [financial interest of adjudicator raises due process concerns].)

Respondents’ deference argument is not supported by evidence or authorities,

so we will not entertain it. (See, e.g., Nickell v. Matlock (2012) 206

Cal.App.4th 934, 947 (Nickell) [conclusory assertions in brief unsupported by

citations to evidence or legal authority are forfeited].)

G. Totality of the Circumstances

The trial court also concluded Respondents received did not receive fair

hearings under the totality of the circumstances. Although adjudicators are

presumed to be impartial, “the presumption of impartiality can be overcome”

by “a particular combination of circumstances creating an unacceptable risk

of bias.” (Morongo, supra, 45 Cal.4th at p. 741.) This is sometimes referred

to as the “totality-of-the circumstances approach.” (Id. at p. 740.) Since we

have concluded none of the individual grounds Respondents asserted for an

unfair trial was proper, we conclude there was no particular combination of

those circumstances that created an unacceptable risk of bias. Under the

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totality of the circumstances, neither the CAO nor ACL Order should have

been set aside.

H. Additional Fairness Issues Related to ACL Hearing

In its ACL decision, the court noted “other evidence of unfairness”

Respondents argued to the trial court, including “(a) ex parte communications

by a Regional Board member who was eventually disqualified, (b)

testimonials by Regional Board members during trial endorsing the

prosecution team, (c) the Regional Board’s unwillingness to keep Sweeney’s

private financial information confidential, combined with his criticism of him

for not providing more financial information, (d) reliance by Regional Board

members on incorrect personal knowledge, (e) unawareness by Regional

Board members of Plaintiff’s arguments, (f) blindness of Regional Board

members to weaknesses in the prosecution’s team’s arguments, and (g)

evidence that the Regional Board does not fairly interpret and apply the law,

but rather interprets it to support the decisions.” Beyond identifying these

arguments, the trial court did not address, analyze, or otherwise rule on

these contentions. In their appellate brief, Respondents argue all points as

further evidence of unfair hearings. Except for the first issue regarding ex

parte communications, we shall not consider these additional arguments.

These arguments either present issues rejected elsewhere in the parties’

briefs and in our opinion, or they are unsupported by any authority

establishing such conduct as bias or evidence of an unfair hearing. (See

Nickell, supra, 206 Cal.App.4th at p. 947.)

Respondents proffer two incidents of ex parte communications

involving a Board member which they say reinforced the appearance of

unfairness and created an appearance of bias. First, they claim the Board

member “initiated a secret communication with the prosecution team about

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the merits of the case.” Second, they assert the same Board member, in

communicating with an environmental group which had appeared before the

Board against Sweeney, described a statement Sweeney made on social

media as “a lie.” The “secret communication” was a one-way communication

by the Board member to a prosecution team member expressing his view that

the ACL penalty was too high. The statement the Board member said was a

“lie” was a comment Sweeney made on social media that the Board member,

who was also a member of BCDC, had “succeeded in getting the act of

kiteboarding in public waters a fine of $30k.” Even if we assume these

communications were prohibited, they do not overcome the presumption of

impartiality afforded the adjudicators. At the outset of the ACL hearing, the

Board member at issue recused himself, left the hearing, and took no part in

deciding the ACL Order. In light of his recusal, Respondents have not

persuaded us that the hearing was unfair.

V. OTHER ISSUES

In both of its decisions, the trial court made rulings on additional issues

not otherwise addressed in our analysis. In its CAO decision, the trial court

(1) sustained Respondents’ objections to portions of the administrative record

submitted by the Regional Board; (2) denied the Regional Board’s motion to

strike Respondents’ opening brief; and (3) denied the Regional Board’s motion

to enforce the CAO. Likewise, in reviewing the ACL Order, the trial court (1)

denied the Regional Board motion to strike Respondents’ opening brief, and

(2) sustained Respondents’ objections to portions of the administrative record

submitted by the Regional Board. The trial court also expressly declined to

rule on “several requests for judicial notice, to augment the record, and to

correct the record” on the grounds that such requests “appear[ed]

unnecessary to resolve the principal issues in this case.” The Regional Board

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challenges several of these issues on appeal. Because we reverse the

judgments on substantive grounds and shall direct the trial court to deny

Respondents’ motions for writs of mandate with respect to both the CAO and

ACL Order, we need not resolve these issues, which are unnecessary to our

decision.

DISPOSITION

The judgment on the CAO in Solano County Superior Court Case No.

FCS048136 and the judgment on the ACL Order in Solano County Superior

Court Case No. FCS048861 are reversed, and the writs of mandate are

vacated. The matters are remanded to the trial court with directions to deny

Respondents’ petitions for writs of mandate and requests to set aside the

CAO and ACL Order, and for further proceedings consistent with this

opinion.

The Regional Board’s cross-complaint seeking to enforce the CAO and

ACL Order is reinstated.

Appellants are awarded costs on appeal.

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_________________________

Siggins, J.*

WE CONCUR:

_________________________

Fujisaki, Acting P.J.

_________________________

Jackson, J.

*

Assigned by the Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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Trial Court: Solano County

Superior Court

Trial Judge: Hon. Harry S. Kinnicutt

Counsel:

Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant

Attorney General, Annadel A. Almendras, Supervising Deputy Attorney

General, Matthew G. Bullock, Daniel S. Harris, Deputies Attorney General,

Joshua Patashnik for Appellants.

John Briscoe, Lawrence S. Bazel, Briscoe Ivester & Bazel, LLP, for

Respondents

Kerry Shapiro, Martin Patrick Stratte, Jeff Mangels Butler & Mitchell, LLP.

Amicus for Respondents.

67