Opinion

County of Mono v. City of L.A.

Court
California Court of Appeal
Filed
Jul 26, 2022
Status
Published
Cited by
0 cases
Authority
More cited than 24.0%

The opinion

Filed 6/30/22; certified for publication 7/26/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

COUNTY OF MONO et al.,

Plaintiffs and

Respondents, A162590

v.

(Alameda County

CITY OF LOS ANGELES et al., Super. Ct. No.

Defendants and RG18923377)

Appellants;

DEPARTMENT OF FISH AND

WILDLIFE,

Real Party in Interest.

The City of Los Angeles, Los Angeles Department of Water

and Power (LADWP), and Los Angeles Department of Water and

Power Board of Commissioners (collectively, Los Angeles) appeal

from the trial court’s judgment granting the petition of Mono

County and the Sierra Club (collectively, Mono County) for a writ

of mandate directing Los Angeles to comply with the California

Environmental Quality Act (Pub. Resources Code1, § 21000 et

Undesignated statutory citations are to the Public

1

Resources Code.

1

seq.) (CEQA) before curtailing or reducing deliveries of irrigation

water to certain lands Los Angeles leases to agricultural

operators in Mono County. The trial court ruled that Los Angeles

implemented a project in 2018 without complying with CEQA

when (1) it proposed new leases to the lessees that, unlike the

prior leases, would not provide or allow water to be used for

irrigation, and (2) while claiming it would study the

environmental effects of the new leases, it nonetheless

implemented that policy of reducing water for irrigation by

allocating less water than usual under the prior leases that were

still in effect.

Los Angeles does not dispute that it is required to engage

in CEQA analysis before implementing the new proposed leases,

and it notes that it has issued a notice that it is undertaking

environmental review of those new leases. But it argues that its

2018 water allocation was not part of that project and instead

part of an earlier project, and the limitations period for

challenging the earlier project has run. We agree with Los

Angeles, so we will reverse the judgment.

BACKGROUND

I. 2020 Leases

The history of how Los Angeles secured the rights to water

from Mono and Inyo Counties in the eastern Sierra Nevada

mountains and exported it via aqueduct is well documented in

prior decisions, and we need not repeat it here. (See County of

Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1, 3–4.) We

pick up the story in 2010, when Los Angeles approved a set of

2

substantively identical leases (2010 Leases) governing about

6,100 acres of land Los Angeles owns in Mono County. Los

Angeles deemed the approval of the leases to be categorically

exempt from CEQA review because they involved the use of

existing structures or facilities with no or negligible expansion of

use. (Los Angeles Guidelines for the Implementation of the

California Environmental Quality Act of 1970, art. III, Class 1,

¶14; Cal. Code of Regs., tit. 14, § 15301.)2

The 2010 Leases include various provisions concerning

water. In one section devoted to water supply, the leases state

that they are “given upon and subject to the paramount rights of

[Los Angeles] with respect to all water and water rights” and that

Los Angeles reserves “all water and water rights . . . together

with the right to develop, take, transport, control, regulate, and

use all such water and water rights.” The 2010 Leases further

provide, “The availability of water for use in connection with the

premises leased herein . . . is conditioned upon the quantity in

supply at any given time. . . . The amount and availability of

water, if any, shall at all times be determined solely by [Los

Angeles]. The availability of water is further dependent upon

2 Any citations to California Code of Regulations, title 14,

sections 15000 to 15387 will be referred to and cited as “CEQA

Guidelines.” “ ‘The CEQA Guidelines, promulgated by the state’s

Resources Agency, are authorized by Public Resources Code

section 21083. In interpreting CEQA, we accord the Guidelines

great weight except where they are clearly unauthorized or

erroneous.’ ” (Save Tara v. City of West Hollywood (2008)

45 Cal.4th 116, 128, fn. 7.)

3

[Los Angeles’] continued rights and ability to pump”

groundwater.

In a separate subsection in the water supply section, the

2010 Leases state, “Lessee further acknowledges and agrees that

pursuant to Section 220(3) of the City of Los Angeles City

Charter, any supply of water to the leased premises by [Los

Angeles] is subject to the paramount right of [Los Angeles] at any

time to discontinue the same in whole or in part and to take or

hold or distribute such water for the use of [Los Angeles] and its

inhabitants. Lessee further acknowledges and agrees that there

shall be no claim upon [Los Angeles] whatsoever because of any

exercise of the rights acknowledged under this subsection.”

The 2010 Leases divide the leased acreage into irrigated

and dry acre categories, with the lessees paying more for

irrigated acres. In the section devoted to irrigation water, the

2010 Leases state that “water supplies to all land classified for

irrigation (alfalfa and pasture) will be delivered in an amount not

to exceed five (5) acre-feet per acre per irrigation season, subject

to conditions stated in” the preceding water supplies section. The

irrigation water section goes on to state, “The water supply for a

specific lease is highly dependent upon water availability and

weather conditions; due to this, delivery of irrigation water may

be reduced in dry years.” The 2010 Leases allow for a

readjustment of rent if Los Angeles makes a “dry finding,”

meaning a determination that it is necessary to reclassify the

leased property by type or acreage.

4

The 2010 Leases make the lessees responsible for

implementing certain land management plans Los Angeles

developed pursuant to a memorandum of understanding between

Los Angeles and various counterparties. That memorandum

states, “While providing for the primary purpose for which Los

Angeles owns the lands, including the protection of water

resources utilized by the citizens of Los Angeles, the plans will

also provide for the continuation of sustainable uses (including

recreation, livestock grazing, agriculture, and other activities)

[that] will promote biodiversity and a healthy ecosystem, and will

consider the enhancement of Threatened and Endangered

Species habitats.”

The 2010 Leases’ initial term ran from January 2009 to the

end of 2013, but the leases allow the lessees to hold over as

tenants at will after the expiration of the initial term, and Los

Angeles and the lessees have proceeded under the 2010 Leases in

this holdover status since 2013.

Los Angeles’ provision of irrigation water in each of the

years governed by the 2010 Leases was as follows:

Runoff Year Runoff Percent Acre-feet

of Normal (AF)/acre

2009–2010 79 4.3

2010–2011 104 4.3

2011–2012 142 5.4

2012–2013 58 2.2

2013–2014 55 2.4

2014–2015 53 1.5

5

2015–2016 48 0

2016–2017 82 0.7

2017–2018 202 5.0

In 2015 and 2016, when anticipated runoff was 48 percent

and 82 percent of normal, respectively, Mono County sent letters

to Los Angeles objecting to Los Angeles’ stated intent to provide

the lessees less than 5 AF/acre of irrigation water. Mono County

asked Los Angeles to provide between 2 and 3 AF/acre of water,

to avoid economic losses to the lessees and damage to the

environment of Mono County, including a distinct bi-state

population of greater sage grouse that lived in the area.

II. Dry Leases Proposal and 2018 Water Allocation

At the beginning of March 2018, Los Angeles sent the

lessees copies of a proposed new form of leases (Proposed Dry

Leases). The Proposed Dry Leases were to be for a five-year

period running from January 2018 to the end of 2022, renewable

for up to three additional five-year periods. As to irrigation

water, which the Proposed Dry Leases defined as water applied

to increase forage production, the Proposed Dry Leases stated

that Los Angeles “shall not furnish irrigation water to Lessee or

the leased premises, and Lessee shall not use water supplied to

the leased premises as irrigation water.” The Proposed Dry

Leases then stated that from time to time, based on Los Angeles’

“operational needs,” it might spread or instruct the lessees to

spread excess water on the leased properties. The Proposed Dry

Leases, like the 2010 Leases, stated that any water spreading

6

would be “subject to the paramount right of [Los Angeles] at any

time to discontinue the same in whole or in part and to take or

hold or distribute such water for the use of [Los Angeles] and its

inhabitants. Lessee further acknowledges and agrees that there

shall be no claim upon [Los Angeles] whatsoever because of any

exercise of” such rights.

In the cover letter accompanying the Proposed Dry Leases,

Los Angeles stated that the lessees would be invited to attend a

meeting in the first half of March at which the lessees could

comment and ask questions about the changes embodied in the

Proposed Dry Leases. On April 12, 2018, Los Angeles sent letters

to the lessees informing them that it was “performing an

Environmental evaluation” of the Proposed Dry Leases and the

2010 Leases would be in holdover status until the evaluation was

complete and the Proposed Dry Leases took effect. Los Angeles

further stated that it would be spreading water on the leased

properties based on its operational needs and would determine

the amount of water available for spreading based on the latest

snow surveys and anticipated runoff in the eastern Sierras.

On April 19, 2018, Mono County wrote to the mayor of Los

Angeles asking for reassurance that the lessees would receive

sufficient irrigation water that season, which would start on May

1, 2018. Mono County acknowledged that Los Angeles had

relaxed its pressure on lessees to execute the Proposed Dry

Leases until the environmental impacts were analyzed, but it

raised economic and environmental concerns about the proposal,

including concerns about the sage grouse.

7

The mayor responded with a letter on May 1, 2018, in

which he stated, “Changing environmental circumstances,

including the most recent five-year drought, [require] us to

reevaluate our current water uses, including the water

historically provided to eastern Sierra ranches. Over the next six

months, LADWP will analyze the potential environmental

impacts of reducing water on leased ranch land in Mono County

and will discuss the findings with you and the ranchers before

any new lease language is proposed.” The letter continued, “In

the interim, I have directed staff to inform you this week of the

amount of water available for operational spreading to the

lessees this year based on snowpack and anticipated runoff. Staff

has indicated that the amount of water provided will likely be

similar to 2016, which was also based on snowpack conditions.

This determination will be made under the flexibility that the

existing expired leases afford.”

Also on May 1, 2018, LADWP sent the lessees an email

stating that it had evaluated the snowpack and anticipated

runoff, which was 78 percent of normal, and had determined that

it would provide the lessees 4,200 AF of water that runoff year.

4,200 AF of water amounted to 0.71 AF/acre of land governed by

the 2010 Leases. LADWP said this amount was consistent with

how much water it had provided two years earlier, when the

runoff was 82 percent of normal.

Mono County followed up two days later with a letter in

which it accused Los Angeles of planning to increase exports of

8

water by discontinuing water deliveries to Mono County ranches

and habitat or reducing such deliveries to an unsustainable level.

In the summer of 2018, Los Angeles spread approximately

900 AF of water on land within the leased properties to support

the population of the sage grouse, separate from the irrigation

flows delivered to the lessees.

In August 2018, Mono County sent a letter to the mayor of

Los Angeles reiterating that Los Angeles’ decision to divert and

export almost all of the irrigation water it had historically

provided the lessees was affecting the lessees and the

environment, including the sage grouse, without prior

environmental review. A week later, Mono County notified Los

Angeles that it intended to file a petition for writ of mandate

alleging Los Angeles’ decision to curtail or reduce water

deliveries to the lessees in order to export additional water to Los

Angeles failed to comply with CEQA. Mono County filed its

lawsuit the next day. Simultaneously, Los Angeles issued a

notice of preparation that it would prepare an environmental

impact report for the Proposed Dry Leases. Mono County later

filed a first amended petition in which the Sierra Club joined as a

petitioner.

III. Writ petition proceedings

During proceedings on Mono County’s petition, the parties

disagreed about whether there was a formal administrative

record of proceedings, because they disagreed about whether Los

Angeles’ reduction of water was the implementation of a

previously approved project or the approval of a new project. Los

9

Angeles ultimately stipulated that it would prepare and certify

an administrative record but reserved the right to argue that

Mono County was not challenging a project subject to CEQA.

After the trial court issued a tentative order granting Mono

County’s petition but before the hearing, Los Angeles filed a

declaration by Eric Tillemans, a manager at LADWP (Tillemans

Declaration). The Tillemans Declaration asserted that Los

Angeles diverted approximately 6.6 AF/acre of water to the

leased properties in 2019 and 3 AF/acre of water in 2020. At the

hearing on the tentative order, the parties argued about whether

the court should consider this declaration. The trial court

continued the hearing to allow Mono County to present a

response to the declaration. Mono County then filed a response,

to which Los Angeles replied.

The trial court ultimately granted Mono County’s writ

petition. It ruled that Los Angeles committed to a project

without CEQA review when it proposed a change in water use in

the Proposed Dry Leases and then implemented that change in

the 2018 water allocations. The trial court issued a writ of

mandate directing that until Los Angeles complied with CEQA, it

had to maintain the status quo and provide water to the lessees

consistent with annual fluctuation and availability of runoff

around a five-year historical baseline, which the writ calculated

as approximately 3.2 AF/acre from 2016 to 2021. The trial court

denied Los Angeles’ attempt to augment the administrative

record with the Tillemans Declaration, though it did consider

10

that declaration when it calculated the historical baseline for the

purposes of its writ of mandate.

DISCUSSION

I. Extra-record evidence

Before turning to the merits of Mono County’s CEQA

arguments, we will first establish the record for those arguments

by addressing Los Angeles’ contention that the trial court erred

in partially excluding the Tillemans Declaration. The trial court

excluded the declaration “regarding the resolution of the case on

the merits” because Los Angeles submitted it after briefing was

complete and the court had issued a tentative decision. The court

also ruled that the declaration’s information about water

allocations in 2019 and 2020 was irrelevant to the question of

whether the 2018 water allocation was a change in water use

policy that constituted a CEQA project. The trial court

nonetheless considered the declaration “regarding the remedy”

for the violation it found; the court used the figures in the

declaration when it calculated the five-year average water

allocation (subject to annual variation in anticipated runoff) that

Los Angeles needed to maintain pending completion of CEQA

review.

Los Angeles raises four arguments against the trial court’s

ruling. It argues (1) the additional evidence in the declaration

was admissible because there was no administrative record, (2)

the declaration was not untimely because the trial court’s

tentative order raised for the first time the notion that the 2018

allocation was a commitment to the water policy in the Proposed

11

Dry Leases, (3) evidence that Los Angeles provided substantial

amounts of water in 2019 and 2020 was relevant to proving it did

not commit to a policy of reducing water deliveries, and (4) the

trial court could not exclude the evidence for the purposes of the

merits while considering it for the remedy. Mono County

supports the trial court’s stated rationale and further argues that

Los Angeles did not comply with various California Rules of

Court and local rules when it filed the declaration. It also asserts

that the declaration is inaccurate because it merely presents its

conclusions about the amount of water per acre without

disclosing the basis for those conclusions and one of the

conclusions is mathematically flawed.

We agree with Los Angeles’ first argument that the

declaration is admissible as extra-record evidence. While extra-

record evidence is largely inadmissible in administrative

mandamus cases, such evidence is admissible “in traditional

mandamus actions challenging ministerial or informal

administrative actions if the facts are in dispute.” (Western

States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559,

576.) This rule applies here. The 2018 allocation that Mono

County challenges was not the product of a quasi-legislative

decision by LADWP’s board or a quasi-judicial adjudicatory

decision issued after a required hearing. It was instead the

product of a lower-level staff decision, so it qualifies as an

informal or ministerial administrative action. Mono County’s

writ petition challenging the 2018 allocation is therefore a

traditional mandamus action, governed by section 21168.5 and

12

Code of Civil Procedure section 1085. (Id. at pp. 566–567.) There

is accordingly no bar under administrative law to the trial court’s

consideration of the Tillemans Declaration. (Cont.Ed. Bar,

Practice under the California Environmental Quality Act (2022)

§ 23.56 [admission of evidence outside the record is usually

necessary in cases where an agency determines an activity is not

subject to CEQA or is exempt].)

Los Angeles is also correct that the declaration is relevant

to Mono County’s petition. Mono County’s position is that the

lower allocation of water in 2018 was the implementation of a

new policy of curtailed or eliminated water, either on its own or

as the beginning of the same policy embodied in the Proposed Dry

Leases proposal. Evidence that Los Angeles allocated higher

amounts of water after 2018, including an allocation greater than

the 5 AF/acre to which Mono County contends the lessees are

entitled, plainly has some “tendency in reason to prove or

disprove” Mono County’s allegation that Los Angeles

implemented a low- or no-water policy in 2018. (Evid. Code,

§ 210.)

We nonetheless agree with the trial court and Mono County

that the Tillemans Declaration was untimely. The first page of

Mono County’s brief in support of its writ petition asserted that

the issue before the trial court was whether Los Angeles’ 2018

decision to modify its land management practices by significantly

reducing water deliveries was a project under CEQA. Mono

County later stated explicitly that the 2018 allocation was an

implementation of the same project as the Proposed Dry Leases.

13

Los Angeles had enough notice about the scope of Mono County’s

petition that it should have submitted the Tillemans Declaration

with its opposition brief.

Had the trial court completely excluded the declaration,

this would be the end of the matter and we would affirm the

ruling. However, after excluding the declaration from its

consideration of the merits of Mono County’s petition, the trial

court went on to consider it for the purposes of crafting a remedy.

This was inconsistent and improper. The declaration could not

be untimely and irrelevant to the question of whether Los

Angeles departed from the status quo in 2018 but timely and

relevant to defining the status quo that needed to be maintained.

If the trial court believed Los Angeles had implemented a new

low-water policy in 2018, it does not make sense to include water

allocations under that policy when crafting an order designed to

preserve the status quo that predated the policy.

The remedy for the trial court’s error could be either to

exclude the Tillemans Declaration for all purposes or admit it for

all purposes. Because the trial court considered the declaration

for some purposes, its timeliness concern cannot have been that

significant. And by giving Mono County an opportunity to

respond to the declaration, the trial court avoided any prejudice

to Mono County from the untimely filing. Additionally, as noted

above, we have concluded the declaration is relevant to the issues

at hand. We will therefore consider the Tillemans Declaration

when examining the merits of Mono County’s arguments.

14

II. CEQA Compliance

A. Legal Principles and Standard of Review

“CEQA and its implementing administrative regulations

(CEQA Guidelines) establish a three-tier process to ensure that

public agencies inform their decisions with environmental

considerations. [Citation.] The first tier is jurisdictional,

requiring that an agency conduct a preliminary review to

determine whether an activity is subject to CEQA. [Citations.]

An activity that is not a ‘project’ as defined in the Public

Resources Code (see § 21065) and the CEQA Guidelines (see

§ 15378) is not subject to CEQA.” (Muzzy Ranch Co. v. Solano

County Airport Land Use Com. (2007) 41 Cal.4th 372, 379–380,

fn. omitted (Muzzy Ranch).)3 “Second, assuming CEQA is found

to apply, the agency must decide whether the activity qualifies

for one of the many exemptions that excuse otherwise covered

activities from CEQA’s environmental review. Finally, assuming

no applicable exemption, the agency must undertake

environmental review of the activity, the third tier.” (Union of

Marijuana Patients, supra, 7 Cal.5th at p. 1185.) Environmental

review can consist of a negative declaration, a mitigated negative

3“Courts have often labeled the project decision

‘jurisdictional’ because it determines whether CEQA applies at

all. [Citations.] The term is inapposite because an agency’s

jurisdiction over a proposed activity does not depend upon the

application of CEQA. Nonetheless, its use conveys the

preliminary nature of the project determination.” (Union of

Medical Marijuana Patients, Inc. v. City of San Diego (2019)

7 Cal.5th 1171, 1186, fn. 4 (Union of Marijuana Patients).

15

declaration, or an environmental impact report (EIR). (Id. at

pp. 1186–1187.)

Appellate review in a CEQA case is “de novo in the sense

that we review the agency’s actions as opposed to the trial court’s

decision.” (North Coast Rivers Alliance v. Westlands Water

Dist. (2014) 227 Cal.App.4th 832, 849.) “The standard of review

in a CEQA case, as provided in sections 21168.5 and 21005, is

abuse of discretion. Section 21168.5 states in part: ‘In any action

or proceeding . . . to attack, review, set aside, void or annul a

determination, finding, or decision of a public agency on the

grounds of noncompliance with this division, the inquiry shall

extend only to whether there was a prejudicial abuse of

discretion.’ [Citation.] [The Supreme Court’s] decisions have

thus articulated a procedural issues/factual issues dichotomy.

‘[A]n agency may abuse its discretion under CEQA either by

failing to proceed in the manner CEQA provides or by reaching

factual conclusions unsupported by substantial evidence.

(§ 21168.5.) Judicial review of these two types of error differs

significantly: While we determine de novo whether the agency

has employed the correct procedures, “scrupulously enforc[ing] all

legislatively mandated CEQA requirements” [citation], we accord

greater deference to the agency’s substantive factual

conclusions.’ ” (Sierra Club v. County of Fresno (2018) 6 Cal.5th

502, 512.)

B. 2018 Water Allocation

The parties frame their arguments on the merits in this

case in several different ways, but most of their arguments,

16

including the one we find dispositive, center on the core question

of whether the 2018 water allocation is part of the 2010 Leases

project or a new reduced water project, either on its own or as

part of the Proposed Dry Leases. We therefore begin with that

issue.

“Whether an activity is a project is an issue of law that can

be decided on undisputed data in the record on appeal.” (Muzzy

Ranch, supra, 41 Cal.4th at p. 382.) As relevant here, CEQA

defines a project as “an activity which may cause either a direct

physical change in the environment, or a reasonably foreseeable

indirect physical change in the environment, and which is any of

the following: [¶] (a) An activity directly undertaken by any

public agency. [¶] (b) An activity undertaken by a person which is

supported, in whole or in part, through contracts, grants,

subsidies, loans, or other forms of assistance from one or more

public agencies. [¶] (c) An activity that involves the issuance to a

person of a lease, permit, license, certificate, or other entitlement

for use by one or more public agencies.” (§ 21065.)

The CEQA Guidelines expand on this and define a project

as “the whole of an action, which has a potential for resulting in

either a direct physical change in the environment, or a

reasonably foreseeable indirect physical change in the

environment, and that is any of the following: [¶] (1) An activity

directly undertaken by any public agency . . . . [¶] (2) An activity

undertaken by a person which is supported in whole or in part

through public agency contracts, grants, subsidies, loans, or other

forms of assistance from one or more public agencies. [¶] (3) An

17

activity involving the issuance to a person of a lease, permit,

license, certificate, or other entitlement for use by one or more

public agencies.” (CEQA Guidelines, § 15378, subd. (a).) The

CEQA Guidelines further state, “The term ‘project’ refers to the

activity which is being approved and which may be subject to

several discretionary approvals by governmental agencies. The

term ‘project’ does not mean each separate governmental

approval.” (CEQA Guidelines, § 15378, subd. (c).)

There are thus three separate strands to these definitions:

agency involvement, physical change to the environment, and

whole of an action including multiple discretionary approvals.

There is no dispute about Los Angeles’ involvement in the 2018

water allocation or whether that allocation is the type of activity

that might cause a physical change in the environment. Even if

there were, we would easily find those conditions satisfied here.

LADWP either directly or indirectly controlled the application of

irrigation water to the leased properties, and a change in

irrigation policy would reasonably be expected to affect the

physical environment. The focus of our inquiry is therefore on

whether the 2018 water allocation is the whole of an action or

part of a larger action, either the 2010 Leases or the Proposed

Dry Leases.

We conclude the allocation is part of the 2010 Leases. The

2018 water allocation was not a one-off action by Los Angeles. It

came after years of such actions and, because the 2010 Leases

were in holdover status, an ongoing leasehold relationship

governed it. It would make sense to view the 2018 water

18

allocation as a project of its own or as part of the Proposed Dry

Leases only if it were a departure from the terms of the 2010

Leases or, perhaps, Los Angeles’ practice of delivering water

under those leases. A close examination of the 2010 Leases, the

history of water allocations under them, and Los Angeles’

deliveries after 2018 demonstrates that the 2018 allocation was

not a turning point towards a low-water policy or the Proposed

Dry Leases, but rather the latest in a string of discretionary

water allocations that the 2010 Leases allowed Los Angeles to

make.

Terms of 2010 Leases

The 2010 Leases state that water supplied to land

classified for irrigation “will be delivered in an amount not to

exceed five (5) acre-feet per irrigation season” and that this water

is “highly dependent upon water availability and weather

conditions” such that “delivery of irrigation water may be reduced

in dry years.” The leases also state that water availability “is

conditioned upon the quantity in supply at any given time,” but

that “[t]he amount and availability of water, if any, shall at all

times be determined solely by” Los Angeles. Another provision

allows Los Angeles to make a “dry finding” and reclassify a

lessee’s land as not subject to irrigation based on “the availability

of water,” in which case the rent owed by the lessee will be

reduced. The 2010 Leases obligate the lessees to carry out

certain land management plans that are intended to continue

sustainable uses such as livestock grazing and agriculture.

19

Mono County contends that these provisions demonstrate

that the lessees had reasonable expectations that the 2010

Leases obligated Los Angeles to continue to deliver water for

sustainable grazing uses and did not allow it to curtail water

deliveries for the purposes of increasing water deliveries to Los

Angeles’ residents. If these provisions were the only aspects of

the 2010 Leases that addressed water supplies, we might agree.

However, the 2010 Leases begin the discussion of water supplies

by stating, “It is understood and agreed to by Lessee that this

lease is given upon and subject to the paramount rights of [Los

Angeles] with respect to all water and water rights . . . .” Most

significantly, the 2010 Leases further state, “Lessee further

acknowledges and agrees that pursuant to Section 220(3) of the

City of Los Angeles City Charter, any supply of water to the

leased premises by [Los Angeles] is subject to the paramount

right of [Los Angeles] at any time to discontinue the same in

whole or in part and to take or hold or distribute such water for

the use of [Los Angeles] and its inhabitants. Lessee further

acknowledges and agrees that there shall be no claim upon [Los

Angeles] whatsoever because of any exercise of the rights

acknowledged under this subsection.”4

4 Neither Los Angeles nor Mono County quotes or explains

what section 220(3) of the Los Angeles City Charter says about

water. Our research suggests that the 2010 Leases’ citation to

section 220(3) referred to the charter in effect prior to 2000, when

the voters of Los Angeles adopted a new charter. (Woo v.

Superior Court (2000) 83 Cal.App.4th 967, 971.) Section 677 of

the current charter appears to contain the content of section

220(3) of the former charter, and it empowers the board of

20

The plain language of the last provision accords Los

Angeles the right to do precisely what Mono County contends it

did: curtail water deliveries for the purposes of increasing water

deliveries to Los Angeles’ residents. Mono County resists this

conclusion by characterizing this provision as a contingent

reservation of a future right and arguing that if the 2010 Leases

allowed Los Angeles to reduce irrigation water in favor of water

deliveries to the city, Los Angeles would have prepared an EIR

when it approved the leases instead of declaring the project

exempt as involving unchanged use of existing facilities. Mono

County is right that the provision is a reservation of a right for

Los Angeles to exercise in the future. But nothing prevents Los

Angeles from exercising the right when it wants to, so it must be

considered a part of the 2010 Leases project. Mono County’s

speculation that Los Angeles would have prepared an EIR if it

believed it was obtaining in the 2010 Leases a right to curtail

water deliveries is just that—speculation.5

LADWP to distribute surplus water not required by consumers

within the city limits, “subject to the paramount right of the City,

at any time, to discontinue the contract, in whole or in part, and

to take, hold and distribute, the surplus water for the use of the

City and its inhabitants.” (L.A. City Charter, § 677(a)(2)(A).)

5 The lessees are not parties to this proceeding, and our

interpretation of the terms of the 2010 Leases for the purposes of

identifying the relevant CEQA project is without prejudice to any

breach of contract claims they might raise against Los Angeles.

We reject Los Angeles’ argument, raised for the first time in its

reply brief, that the lessees are indispensable parties and that

Mono County’s failure to join them requires dismissal.

21

The reservation of rights provision might suggest that Los

Angeles could permanently end the delivery of irrigation water

under the 2010 Leases, thereby effectively implementing a zero-

water policy under those leases without needing to perform any

additional environmental review. Mono County argues that Los

Angeles’ choice to undertake environmental review for the

Proposed Dry Leases shows that the 2010 Leases do not give it

this power, because otherwise it would not have needed to start a

new project. We need not decide whether the reservation of

rights can be stretched so far as to allow Los Angeles to end all

water deliveries under the 2010 Leases. Los Angeles concedes

that a policy of not providing any irrigation water to the leased

properties is a markedly different project than the 2010 Leases.

We accept this concession and therefore conclude the 2010 Leases

project includes the provision of irrigation water subject to

changing water availability and Los Angeles’ right to reduce

water allocations to free up water for its own purposes, so long as

such reductions do not de facto convert the 2010 Leases into dry

leases. Such an interpretation reconciles the reservation of rights

with the numerous provisions tying the supply of irrigation water

to the availability of water.

Mono County also argues that Communities for a Better

Environment v. South Coast Air Quality Management Dist. (2010)

48 Cal.4th 310 (Communities) governs here and dictates that a

grant of discretion in the 2010 Leases cannot excuse Los Angeles

from complying with CEQA. In that case, an oil company had

permits to operate boilers at certain maximum levels, though it

22

normally did not run the boilers at the maximum levels. (Id. at

pp. 317, 322.) The Supreme Court held that the evaluation of the

environmental effects of a new project proposal to create diesel

fuel that included increased operation of the existing boilers had

to account for the increased emissions from the boilers. (Id. at

pp. 316–318, 322.) Although the company already could increase

the use of the boilers under its existing permits, the maximum

allowed by those permits did not establish the baseline for the

new project’s additional effects. (Id. at p. 322.) That baseline

was determined by the refinery’s actual operations, not

hypothetical maximums. (Ibid.)

The Supreme Court said its holding did not violate the

company’s vested rights to operate the boilers at the permitted

levels because it was considering a new project proposal and the

company’s “right to operate the boilers at any particular level

[was] not itself at issue.” (Communities, supra, 48 Cal.4th at

p. 323.) It explained that CEQA analysis of the proposed project

“could not result in an order that [the company] reduce or limit

its use of an individual boiler below the previously permitted

level.” (Ibid.) The Court rejected a statute of limitations

argument for the same reason, reiterating that “CEQA analysis

of the Diesel Project does not constitute review of the

[government agency’s] long-final decisions to issue the boiler

permits.” (Id. at p. 325.)

Applied here, Communities establishes that Los Angeles’

analysis of the environmental impacts of the zero-water policy in

the Proposed Dry Leases must be measured against the baseline

23

of the amounts of irrigation water Los Angeles has actually

provided the lessees, not its hypothetical right to eliminate water

deliveries in any given year. But this does not help Mono

County, because Communities also establishes that the need for

CEQA analysis of the Proposed Dry Leases project does not

prevent Los Angeles from exercising its rights under the 2010

Leases to curtail or reduce water deliveries in any given year.

Historical practice

The parties’ practice under the 2010 Leases is consistent

with our interpretation of the terms of the 2010 Leases. Mono

County contends that Los Angeles historically provided up to 5

AF/acre of water to the leased properties, reduced proportionally

in any given year based on deviations in snowpack and

anticipated runoff from the historical average. But the record of

Los Angeles’ water deliveries under the 2010 Leases is not

consistent with this account. In 2010, a year with runoff of 104

percent of average, Los Angeles provided 4.3 AF/acre of water,

which is 86 percent of the 5 AF/acre maximum set in the 2010

Leases. In 2011, when there was 142 percent of normal runoff,

Los Angeles provided 5.4 AF/acre, which is more than the 5

AF/acre maximum set in the leases. In 2012, a year in which

runoff was 58 percent of normal, under Mono County’s theory Los

Angeles would have provided 2.9 AF/acre. The lessees instead

received 2.2 AF/acre, which is 44 percent of a 5 AF/acre

allocation. In 2013, runoff was 55 percent of normal and the

lessees received 2.4 AF/acre, which is 48 percent of the 5 AF/acre,

close to what Mono County’s theory would predict. But in 2014,

24

runoff was similar at 53 percent of normal, and the lessees

received only 30 percent of the 5 AF/acre, or 1.5 AF/acre. In

2015, runoff was 48 percent of normal, and the lessees received

no water at all. In 2016, runoff was 82 percent of normal, and

the lessees received 0.7 AF/acre, which represents 14 percent of 5

AF/acre. In 2017, runoff was 202 percent of normal and the

lessees received 5 AF/acre, as Mono County’s theory would

predict.

The figures present an overall picture of water deliveries

that correlate only loosely with annual runoff and have a high

minimum threshold of runoff before Los Angeles will deliver

water. This is not consistent with Mono County’s argument that

water deliveries have a 5 AF/Acre maximum that is reduced

proportionally when runoff is below average. In particular, Los

Angeles’ provision of 30 percent of the 5 AF/acre in 2014, no

water in 2015, and 14 percent of the 5 AF/acre in 2016, despite

rainfall in those years being much higher, demonstrate that

water deliveries under the 2010 Leases do not have a linear

relationship with runoff. The 2016 figures are especially striking

because the runoff that year was comparable to the runoff in

2018 (82 percent of normal in 2016 and 78 percent in 2018), and

the amount of water provided was essentially identical, 0.7

AF/acre in 2016 and 0.71 AF/acre in 2018. These 2016 figures

show that Los Angeles’ 2018 water allocation was consistent with

historical practice, not an aberration indicative of a new water

policy.

25

Mono County discounts the significance of the 2015 and

2016 figures, asserting that 2015 was the peak of a drought, 2016

was the first year of recovery, and in both years the lessees

agreed to lower water allocations. The pages of the record that

Mono County cites to support its assertion that the lessees

acquiesced to reduced deliveries in those years do not support its

assertion. Moreover, the record shows that in both 2015 and

2016, Mono County wrote to Los Angeles to complain about the

reduced deliveries, suggesting that the lessees objected to the

water allocations in those years.

More broadly, Mono County’s attempt to explain away the

2015 and 2016 water allocations as the product of extenuating

circumstances serves only to show that water deliveries under

the 2010 Leases depend on more than just rainfall and

anticipated runoff in any given year. If Los Angeles had the right

to reduce deliveries in 2015 and 2016 to take into account prior

shortfalls or other criteria, as Mono County contends, its

allocation of 0.71 AF/acre in 2018, a year of below average

rainfall, does not seem remarkable. While runoff in 2017 was

well above average, after the five-year severe drought that lasted

from 2012 to 2017 Los Angeles could have reasonably decided to

reduce the allocation in 2018 in response to a below average

runoff year, perhaps to conserve water resources in case the

drought returned.

Subsequent allocations

Los Angeles’ practice under the 2010 Leases after 2018

confirms that the 2018 water allocation was not a radical

26

departure from previous practice. According to the Tillemans

Declaration, in 2019 Los Angeles diverted approximately 6.6

AF/acre of water to the leased properties, and in 2020 it diverted

3 AF/acre of water. Mono County contends the Tillemans

Declaration omits the amount of runoff in those years and

incorrectly calculates the amount of water Los Angeles provided

in 2019, with the correct number being 6.2 AF/acre. These are

valid criticisms, but they do not change the fact that Los Angeles

provided substantial quantities of water in 2019 and 2020. There

is no need to know the amount of runoff to see that the 2019 and

2020 allocations are significantly higher than the 2018 level.

This evidence refutes Mono County’s argument that the 2018

water allocation represented the beginning of a new low- or zero-

water delivery policy.

Mono County compares Los Angeles’ actions here with the

facts in County of Inyo v. Yorty (1973) 32 Cal.App.3d 795 (Yorty),

which dealt with an earlier dispute surrounding Los Angeles’

actions in exporting water from the Owens Valley to Los Angeles.

There, Inyo County contended that Los Angeles’ program of

increased groundwater pumping from the Owens Valley

constituted a project under CEQA and Los Angeles needed to

prepare an EIR before approving the project. (Id. at pp. 800–

802.) Los Angeles contended the increased pumping was part of

the same project as the aqueduct by which the pumped

groundwater was transported. (Id. at p. 805.) Because the

aqueduct was built and used before the advent of CEQA, Los

Angeles argued the pumping was exempt from CEQA. (Ibid.)

27

The Court of Appeal held that the aqueduct project was separate

from Los Angeles’ increased pumping of groundwater, in part

because the aqueduct had been used to transport surface water in

the past while pumped groundwater was becoming a larger

portion of the water in the aqueduct. (Id. at p. 806.) The court

also noted that Los Angeles had completed the aqueduct before

CEQA took effect but had only spent about half of the money for

the groundwater pumping at that point, indicating that the

groundwater pumping project, unlike the aqueduct, was being

completed after CEQA. (Id. at pp. 806–807.)

Mono County argues that Los Angeles’ cutbacks in

irrigation water and augmented exports of water are similar to

its increase in groundwater pumping and reduced water

deliveries in Yorty, so the 2018 allocation is a separate project

from the 2010 Leases. The comparison does not hold. First,

Yorty did not involve anything like the 2010 Leases. By granting

Los Angeles the authority to reduce water allocations to the

lessees in future years, the Leases—not Los Angeles’ historical

record of water deliveries—set the parameters of the project

under CEQA. Second, the historical record of water allocations

under the 2010 Leases, and in particular the low allocations in

2014, 2015, and 2016 and higher allocations in 2019 and 2020,

demonstrate that the 2018 water allocation was, for CEQA

purposes, an implementation of the 2010 Leases, not a new

project severable from the 2010 Leases. Finally, as Los Angeles

pointed out in the trial court and in its briefs here, there is no

evidence in the record that Los Angeles increased its exports of

28

Mono County water to Los Angeles residents in 2018 or

afterwards.

In a variation on its Yorty argument, Mono County

contends that the 2018 water allocation was a significant change

from the 2010 Leases that triggered the need for an initial

environmental review as a new project. This argument relies on

Mono County’s assertions that in 2018 Los Angeles provided less

water than it had historically, increased water exports, and

directly spread a portion of the 2018 water allocation itself,

purportedly to preserve habitat for the sage grouse. We have

already rejected the first two assertions as factually unsupported.

The third does not sway us. Even if Los Angeles’ choice in 2018

to directly spread a small amount of water on the leased

properties (rather than having the lessees spread it) could be

viewed as a deviation from prior practice under the 2010 Leases,

that change is minor and insignificant. This is especially true

given that the change was designed to mitigate environmental

harm and that there is no evidence it increased environmental

impacts in any way.

Proposed Dry Leases

Besides arguing that the 2018 water allocation was a

departure from the past practice under the 2010 Leases, Mono

County also argues the allocation constituted Los Angeles’

improper implementation of the project embodied in the Proposed

Dry Leases, before the requisite CEQA review. This argument

relies on the timing of Los Angeles issuing the Proposed Dry

Leases, Mono County and the lessees objecting to the Proposed

29

Dry Leases on CEQA and other grounds, Los Angeles issuing the

2018 water allocation in a smaller amount than the lessees

expected, and Los Angeles then filing a notice of preparation of

an EIR for the Proposed Dry Leases project. Mono County cites

several communications that discuss both the 2018 water

allocation and the Proposed Dry Leases, including the May 1,

2018, letter from the Los Angeles mayor, as evidence of the

connection between the 2018 allocation and the Proposed Dry

Leases. The trial court relied on this evidence to find the 2018

water allocation constituted part of the same project as the

Proposed Dry Leases.

Contrary to Mono County’s argument, the sequence of

events supports our conclusion that the 2018 water allocation

was within the scope of the 2010 Leases. The timing is consistent

with Los Angeles’ explanation that it issued the Proposed Dry

Leases, agreed to complete the requisite environmental review

for those Leases, and committed to maintaining its allocation

practice under the 2010 Leases while proceeding with the

environmental review. We have concluded that the 2018 water

allocation was within Los Angeles’ authority under the 2010

Leases and consistent with its water allocation practice both

before and after 2018; as a result, Mono County cannot sustain

its burden of establishing that Los Angeles prejudicially abused

its discretion in determining that the 2018 water allocation was

within the scope of the 2010 Leases project and not subject to

additional environmental review. (Ebbetts Pass Forest Watch v.

California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th

30

936, 944.) It is also not surprising that Los Angeles’

communications discussed both the 2010 Leases and the

Proposed Dry Leases, given that Los Angeles needed to explain

that it was continuing under the 2010 Leases when it announced

the environmental review of the Proposed Dry Leases project.

Admittedly, the timing of the 2018 water allocation, viewed

in isolation, could also support Mono County’s opposing inference

that Los Angeles intended to use a lower annual water allocation

under the 2010 Leases to implement the new water policy that it

had proposed in the form of the new dry leases. Given the

contentious history of Los Angeles’ acquisition of water rights in

Mono and Inyo Counties, Mono County’s suspicions in this regard

are understandable. (See Reisner, Cadillac Desert (1986) pp. 64–

73; Dufurrena, Give Me a Stone (Winter 2018–2019) Range

Magazine, at p. 23.) However, we find this inference implausible.

The Tillemans Declaration directly contradicts this view of the

timing of Los Angeles’ actions, since the water allocations in 2019

and 2020 show that Los Angeles has not implemented a low- or

zero-water policy.

The notice of preparation that Los Angeles issued in which

it stated it was undertaking environmental review for the

Proposed Dry Leases may constitute an admission that the dry

leases are a new project, as Mono County argues. But the notice

of preparation does not mean Los Angeles’ claimed reliance on

the 2010 Leases for the 2018 allocation was a pretext for

implementing that new project. Mono County’s theory also

makes little sense. If 2018 marked the beginning of a practice of

31

sharply reduced water deliveries to the lessees (disregarding for

the moment the Tillemans Declaration’s evidence of increased

allocations in 2019 and 2020), the correlation between the shift

and the Dry Leases Proposal would be obvious and Los Angeles’

claim to be relying on the 2010 Leases would be unmistakably

pretextual. Without some evidence beyond the timing sequence

to support the notion that the 2018 allocation was a subterfuge of

some sort, we do not subscribe to Mono County’s view that Los

Angeles deceived the public and the courts by falsely claiming the

2018 water allocation was separate from the Proposed Dry

Leases. (Evid. Code, § 664 [“It is presumed that official duty has

been regularly performed”]; Bus Riders Union v. Los Angeles

County Metropolitan Transportation Agency (2009)

179 Cal.App.4th 101, 108 [“It is well established that . . . ‘[a]ll

presumptions of law are in favor of the good faith of public

officials’ ”].)

C. Statute of limitations

Our determination that the 2018 water allocation was part

of the 2010 Leases project and not a project in its own right or an

implementation of the Proposed Dry Leases makes the

disposition of Mono County’s petition straightforward. Our

analysis at this point could take several different paths. (See

Save Tara v. City of West Hollywood, supra, 45 Cal.4th at

pp. 129, fn. 8, 131 [recognizing that a CEQA dispute over an

activity could be viewed as a question of whether the activity was

a project or a timing question of when the agency approved it].)

32

The simplest route out of the thicket of the parties’ arguments

involves the statute of limitations.

“To ensure finality and predictability in public land use

planning decisions, statutes of limitations governing challenges

to such decisions are typically short. [Citations.] The limitations

periods set forth in CEQA adhere to this pattern; indeed, as the

CEQA Guidelines themselves assert, ‘CEQA provides unusually

short statutes of limitations on filing court challenges to the

approval of projects under the act.’ (CEQA Guidelines, § 15112,

subd. (a), italics added.)” (Stockton Citizens for Sensible Planning

v. City of Stockton (2010) 48 Cal.4th 481, 499.) The longest

limitations period applicable to a CEQA claim is 180 days from

project approval or, if there was no formal approval, 180 days

from the commencement of construction. (Id. at pp. 500–501.) If

a party does not file a court action challenging a project within

this period, such a challenge is barred. (Id. at p. 499, citing

CEQA Guidelines § 15112, subd. (b).)

Los Angeles approved the 2010 Leases in early 2010. Mono

County’s writ petition challenging the 2018 implementation of

that project, which Mono County filed in August 2018, is

therefore time-barred. The fact that the 2018 water allocation

was a subsequent discretionary decision or approval of an activity

under the 2010 Leases does not remove it from the ambit of the

2010 Leases project, so the 2018 allocation did not restart the

limitations period. (Van de Kamps Coalition v. Board of Trustees

of Los Angeles Community College Dist. (2012) 206 Cal.App.4th

1036, 1047–1048.) “The limitations period starts running on the

33

date the project is approved by the public agency and is not

retriggered on each subsequent date that the public agency takes

some action toward implementing the project.” (Id. at p. 1045.)

This rule is based on the definition of a CEQA project as being

the “whole of an action,” not “each separate governmental

approval” taken to implement the project. (CEQA Guidelines

§ 15378, subds. (a), (c); Van de Kamps, at p. 1045.) It makes no

difference that Los Angeles approved the 2010 Leases under an

exemption. (City of Chula Vista v. County of San Diego (1994)

23 Cal.App.4th 1713, 1717, 1720–1721 [authorization of award of

renewed service contract to operate hazardous waste facility and

simultaneous notice of exemption started the statute of

limitations, not later execution of materially identical contract].)

If Mono County believed that a decision to reduce the

lessees’ water allocation in a specific year would be a substantial

change in practice and have significant effects on the

environment, it should have raised that argument when Los

Angeles approved the 2010 Leases that gave it the authority to

make such reductions. Los Angeles could then have considered

the argument that it was departing from its prior policy and

evaluated any environmental impacts and feasible mitigation

measures. At a minimum, even if Los Angeles’ approval of the

2010 Leases and its reservation of water rights did not give Mono

County notice that Los Angeles claimed the authority under the

leases to eliminate water deliveries in any given year, Los

Angeles’ exercise of that authority in 2014, 2015, and 2016 surely

did provide such notice. Mono County should have filed a CEQA

34

petition at that time, when it complained of the environmental

effects of such a decision in letters to Los Angeles.

DISPOSITION

The trial court’s judgment is reversed.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

DESAUTELS, J.

County of Mono et al. v. City of Los Angeles et al. (A162590)

Judge of the Superior Court of California, County of

Alameda, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

35

Filed 7/26/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

COUNTY OF MONO et al.,

Plaintiffs and

Respondents, A162590

v.

(Alameda County

CITY OF LOS ANGELES et al., Super. Ct. No.

Defendants and RG18923377)

Appellants;

DEPARTMENT OF FISH AND

WILDLIFE,

Real Party in Interest.

THE COURT:

The opinion in the above-entitled matter filed on June 30,

2022, was not certified for publication in the Official Reports. For

good cause it now appears that the opinion should be published in

the Official Reports and it is so ordered.

Date: July 26, 2022 POLLAK, P. J.

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Evelio M. Grillo

Counsel: Myers Nave, Amrit S. Kulkarni, Julia L. Bond,

Edward Grutzmacher; Michael N. Feuer, City

Attorney, Julie C. Riley, Assistant City

Attorney, David Edwards, Deputy City

Attorney; Joseph A. Brajevich for Defendants

and Appellants.

Law Office of Donald B. Mooney, Donald B.

Mooney; Stacey Simon, County Counsel;

Laurens Silver for Plaintiffs and Respondents.

Nhu Nguyen, Adam L. Levitan, Deputy

Attorneys General, for Real Party in Interest.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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