Appendix I — City of Santa Clarita, California v. Los Angeles County, California (No. 05-1462)

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EXCERPTS FROM

[Pages i-iii and 49-50]

CARL K. NEWTON (SBN 33576) FILING FEE EXEMPT

CITY ATTORNEY GOV’T CODE § 6103

CITY OF SANTA CLARITA

Deborah C. Prosser, Esq. (SBN 109856)

Geralyn L. Skapik, Esq. (SBN 145055)

Timothy H. Irons, Esq. (SBN 191758)

BURKE, WILLIAMS & SORENSEN, LLP

611 West Sixth Street, Suite 2500

Los Angeles, CA 90017

(213) 236-0600; Fax (213) 236-2700

Attorneys for City of Santa Clarita,

Defendant-in-Intervention

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FILED

CLERK, U.S. DISTRICT COURT

APR - 5 2004

CENTRAL DISTRICT OF CALIFORNIA

BY DEPUTY

CEMEX, INC., a Louisiana Corporation,

Plaintiff,

Vv.

COUNTY OF LOS ANGELES, and

DOES 1 THROUGH 10, INCLUSIVE

Defendants.

UNITED STATES OF AMERICA,

Plaintiff-in-Intervention.

City of Santa Clarita,

Defendant-in-Intervention.

[-2

Case No. 0200747 DT (FMOx)

Judge Dickran Tevrizian

Courtroom 880

CITY OF SANTA CLARITA’S OPPOSITION TO

MEMORANDA IN SUPPORT OF MOTION TO

ENTER CONSENT DECREE

[DECLARATIONS OMITTED]

Date: May 3, 2004

Time: 10:00 a.m.

Courtroom: 880

Complaint Filed: 01/25/02

First Amended

Complaint Filed: 04/11/02

Second Amended

Complaint Filed: 05/09/02

Trial Date: None set

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TABLE OF CONTENTS

Page No

TABLE OF CASES AND AUTHORITIES .......... iV

Li Tope 8 3 8 Gey tee ee crn re l

II. FACTUAL AND PROCEDURAL

HISTORY OF FEDERAL AND STATE

GOVERNMENTAL APPROVAL

En Sek LAG ON RW eR 3

A. Federal Governmental Process ............. 3

B. State Governmental Process ............... 8

C. Events Subsequent to County’s Denial

EN ack Wie aee ee ae eed en Peake ¥

Il. ERM SOiy PURINE Eos ras gs ok ck Bako m 14

A. The Court Does Not Have The Authority

To Enter The Proposed Decree Absent A

Finding That CEQA Is Preempted .......... 14

B. The Proposed Decree Should Not Be

Approved Because It Fails To Satisfy the

PI BUNS 63 So Us ee Fra eee 17

C. The Proposed Consent Decree Fails To

Meet The First Factor Because It Violates

State and Federal Environmental Laws ...... 17

1-4

NEPA, the ROD and the Federal

Contracts Mandate CEQA’s Appli-

Galion (0106 PIGRC yes es

The County Review Process Up

Through February 2002, Was A

Reasonable Environmental Regu-

lation Of The Project And Further

Review Is Both Reasonable And

5, SOR RENE eer ere aoe e wee

The Proposed Decree Violates

CROA And NEPA 3.

a. The Project sought to be ap-

proved in the Proposed Decree

is a significantly different

DIONNE. ccc Ge ea uicans es

(1) The discovery of the Arroyo

Toad and the additional five

new production wells and

three new monitoring wells

should have triggered

CINE as ks wa

(2) The Project acceleration

condition should have trig-

gered recirculation of the

i RPO Ee Se

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(3) Project acceleration, com-

bined with undisclosed cancer

risks raised by AQMD, con-

stitute new information

requiring recirculation ........ 31

b. The Duress Conditions in the

Proposed Decree directed

against the County render it unfit

to “Police” the Project Mitiga-

tion Measures in violation of

GGA and NEPA fn. ee 34

c. New Findings that repudiate

2002 Findings without any new

environmental review violate

SRNR a ons eee wae ees 37

D. The Proposed Decree Fails To Satisfy

The First Factor Because It Violates

The Administrative Procedure Act ...... 40

E. The Proposed Decree Fails to Satisfy

The First Factor Because It Violates

the Federal Clean Air Act, Federal

Land Policy and Management Act,

and Federal Clean Water Act ..... Nir ees 41

F. The Proposed Decree Fails to Satisfy

The Second Requirement Because It-

Is Not Freely Entered Into ............ 45

IV.

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G. The Proposed Decree Fails To Meet

The Third Requirement Regarding

Impact To Third Parties Because

Substantial Public Interests Will Be

Impaired By Entry Of The Proposed

Decree That Significantly Outweigh

Any Public Interest In Settlement .......

1. The Proposed Decree Is Un-

reasonable and Against Public

Policy Because It Violates The

City’s First Amendment Rights

To Petition Government ..........

2. The Proposed Decree Is Un-

reasonable And Against Public

Policy Because It Acts As A

Prior Restraint On First Amend-

ment Rights Of Free Speech .......

3. The Proposed Consent Decree

Infringes Upon The Public's

Right of Review Under NEPA

OUTROS 8 ions os BERN S wc

The Proposed Consent Decree Is Unfair,

Unjust and Infringes Upon The Rights of

Third Party Non-Consenting Intervenor

OUR SIEU ie hk ee ak ee 4 wk Ow ee

49

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* ee

EXCERPTS FROM

[Pages 49-50]

H. The Proposed Decree Is Unfair, Unjust

and Infringes Upon The Rights of Third

Party Non-Consenting Intervenor Santa

Clarita

Although federal courts recognize a strong policy favoring

settlement, “our preferences for settlement and accord are

insufficient to justify the imposition of a decree that infringes

upon the rights of third parties.” Latin American Citizens,

999 F.2d at 846. In “multiparty litigation, two parties may

resolve all of the issues that do not affect a third party, ask the

court to include only this settlement in a consent decree, and

submit to the court for adjudication of the remaining issues,

disputed between them and the third party.” City of Miami,

664 F.2d at 440.

Here, the Proposed Decree infringes upon the rights of the

City because it vitiates the City’s absolute right to consultation

pursuant to CEQA and violates the procedures established to

ensure adequate environmental review before a project is

approved for implementation (See Declarations of Susan

O’Carroll and Bill Piazza filed in support of Opposition to

Motion to Enter Consent Decree filed concurrently herewith.)

It is the law of the case that the City has a “right of consul-

tation” that is “granted and guaranteed by statute” and

“outlined by CEQA.” CEMEX, Inc. v. County of Los

Angeles, 2004 WL 363354 at * 2.

The City’s claims are valid. The fact that CEQA was

intentionally circumvented to obtain a settlement favorable to

the Parties, and the rational used to achieve this unfair result,

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is not only illegal and improper, it also unfairly and unjustly

infringes on the rights of the general public who have a legal

right to participate in the process. What is most alarming in

this matter is that the voice of the residents and property

owners of the City - the individuals who will be experiencing

the harmful impacts of this massive Project - have been stifled,

as these individuals have been prohibited from participating in

the CEQA process, which process is designed to protect the

very environment in which they reside.

IV. CONCLUSION

For the reasons stated above, Defendant-in-Intervention

City of Santa Clarita respectfully requests that the Motion to

Enter the Consent Decree be denied.

DATED: April 2, 2004

RESPECTFULLY SUBMITTED,

BURKE, WILLIAMS & SORENSEN, LLP

By: _/s/_ Deborah C. Prosser

Carl K. Newton, City Attorney

City of Santa Clarita

Deborah C. Prosser

Geralyn L. Skapik

Timothy H. Irons

Attorneys for

CITY OF SANTA CLARITA

APPENDIX J

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EXCERPTS FROM PAGES 2-3

EXHIBIT A [Pages 4, 8, 9 and 13-15] and

EXHIBIT B [Pages 24, 37, 38, and 40-49]

Appeals Case No. 04-56050-

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

CEMEX INC., a Louisiana Corporation,

Plaintiff-Appellee

and

UNITED STATES OF AMERICA,

Plaintiff-in-Intervention

V.

LOS ANGELES COUNTY,

Defendant,

and

CITY OF SANTA CLARITA,

Defendant-in-Intervention/Appellant

On Appeal From the United States District Court

for the Central District of California, Los Angeles

District Court Case No. CV-02-00747-DT

APPELLANT’S REQUEST FOR JUDICIAL NOTICE

{Federal Rules of Evidence, Rule 201]

Carl K. Newton, Esq. (SBN 33576)

City Attorney, City of Santa Clarita

Deborah C. Prosser, Esq. (SBN 109856)

Amy E. Morgan, Esq. (SBN 149789)

Timothy H. Irons, Esq. (SBN 191758)

BURKE, WILLIAMS & SORENSEN, LLP

611 West Sixth Street, Suite 2500

Los Angeles, CA 90017

Tele: (213) 236-0600

Fax: (213) 236-2700

Attorneys for City of Santa Clarita,

Defendant-in-Intervention/Appellant

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Pursuant to Federal Rules of Evidence, Rule 201, the

Court of Appeals shall take judicial notice of adjudicative facts

if requested by a party and supplied with necessary informa-

tion. Federal Rules of Evidence, Rule 20(a), (b) and (d).

Judicial notice may be taken at any stage of the proceeding,

including on appeal. Federal Rules of Evidence, Rule 201 (f);

Government of Canal Zone v. Burjan, 596 F.2d 690 (Sth Cir.

1979). The Court may also take judicial notice of court files

and records. Schweitzer v. Scott, 469 F. Supp. 1017 (C.D.

Cal. 1979). Based on these authorities, Appellant City of

Santa Clarita (“City”) asks this Court to take judicial notice of

the following:

1. The district court’s files and records in City of Santa

Clarita v. Los Angeles County Board of Supervisors, (CV

04-7355). Attached as Exhibit A to this Request for Judicial

Notice is CEMEX’s “Memorandum of Points and Authorities

in Support of Motion for Stay of Action Pending Appeal,” and

attached as Exhibit B is the district court’s “Order Denying

Plaintiff City of Santa Clarita’s Motion to Remand Removed

Action to the Superior Court of the State of California for the

County of Los Angeles; and Granting Real Party-In-Interest

CEMEX, Inc.’s (as joined by defendants Los Angeles County

Board of Supervisors and County of Los Angeles and

Real-Party-In-Interest the United States Department of

Interior) Motion for Stay of Action Pending Appeal.”

(emphasis original) Both Exhibit A and Exhibit B are part of

the district court’s file in City of Santa Clarita v. Los Angeles

County Board of Supervisors. These documents are relevant

because they demonstrate that Appellees are attempting to use

the Consent Decree at issue in this appeal to bind non-parties

to the Decree and prevent substantive judicial review of the

Final Environmental Impact Report’s CEQA compliance and

legal adequacy. The Motion for Stay and the Order granting

that motion were not included in the Excerpts of Record filed

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with Appellant’s Opening Brief because both those documents

were generated after the City filed its Opening Brief.

* * * * *

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EXCERPTS FROM EXHIBIT A

[Pages 4, 8, 9 and 13-15]

Kerry § iro (Bar No. ae

go Bar No. 191499)

eer N eas utler & — LLP

Two Embarcadero, 5th

San Francisco, CA 941

Telephone: $2) 398- 8080

Telephone: (415) 398-5584

Andrew R. xmas (Ber * No. contd

Jeffer, Mangels, Butler & Marmaro

1900 Avenue of the Stars, 7th Floor

Los Angeles, CA 90067-5010

Telephone: (310) 203-8080

Telephone: (310) 203-0567

Attorne 38 for for Lie Party in Interest

CEME

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

CITY OF SANTA CLARITA,

Petitioner/Plaintiff,

VS.

LOS ANGELES COUNTY BOARD

OF SUPERVISORS; COUNTY OF

LOS ANGELES, and DOES |

through 10, inclusive,

Respondents/Defendants.

CEMEX, INC., a Louisiana Corporation;

UNITED STATES DEPARTMENT OF

INTERIOR; and ROES | through 10,

inclusive,

Real Parties in Interest.

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CASE NOS. CV 04-7355 DT (FMOx)

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF MOTION

FOR STAY OF ACTION PENDING APPEAL

DATE: November 15, 2004

TIME: 10:00°a.m.

CTRM: 880

Real party in interest CEMEX, Inc. (““CEMEX”’) hereby

files this Memorandum of Points and Authorities in Support

of the Notice of Motion and Motion for Stay of Proceedings

Pending Appeal, filed concurrently herewith.

* * KK

EXCERPTS FROM EXHIBIT A

[Pages 8 and 9]

I. INTRODUCTION

On July 30, 2004, petitioner/plaintiff City of Santa Clarita

(the “City”) filed this action in the Superior Court of the State

of California, County of Los Angeles, Central District, entitled

City of Santa Clarity v. Los Angeles County Board of

Supervisors: County of Los Angeles, Case No. BS 091566

(the “CEQA action”).' The CEQA action, however, is little

more than an attempt by the City to re-litigate in state court

challenges it made to a Consen* Decree approved and entered

' A true and correct copy of the City’s Verified Petition for Writ of

Mandate and Complaint for Declaratory and Injunctive Relief

(“Petition”) is filed concurrently with the Appendices of Exhibits as

Exhibit 1.

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by the District Court on May 5, 2004 (the “Order”?) in

CEMEX v. County of Los Angeles, Case No. CV-02-747 DT

(FMOx) (the “CEMEX action”).

On June 3, 2004, the City appealed the Order to the Ninth

Circuit Court of Appeals. Thus, this Court’s determinations

in the CEMEX action, as embodied in the Order and the

Consent Decree, are now before the Ninth Circuit. In essence,

the CEQA action involves many of the same claims, litigated

between the same parties, that are presently on appeal from

the CEMEX action to the Ninth Circuit.

On September 3, 2004, respondents/defendants Los

Angeles County Board of Supervisors and County of Los

Angeles (collectively the “County”) and real party in interest

United States Department of Interior (“United States”)

removed the CEQA action to this Court. Because many of the

current claims in the CEQA action repeat or mirror claims

addressed in the CEMEX action by the Order, these claims

should be stayed pending resolution of the appeal of the

CEMEX action to the Ninth Circuit to avoid, among other

things, duplicative and wasteful litigation. |

This Court has the authority under its inherent discretion,

as well as the All Writs Act, 28 U.S.C. § 1641 (“AWA”), to

issue those orders necessary to protect and give effect to its

judgments. In this context, a stay order is appropriate in order

to not only give effect to the Order, but also to avoid

potentially conflicting adjudications arising from the CEQA

action while the City’s appeal of the same claims to the Ninth

Circuit in the CEMEX action is ongoing. Otherwise, not only

2

A true and correct copy of the Order, and the Consent Decree, are

filed concurrently with the Appendices of Exhibits as Exhibits 3 and 4,

respectively.

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would the parties suffer significant additional expenses

litigating the same claims in two forums, and the Court would

be burdened with another, possibly unnecessary, action, but

any determinations in the CEQA action could ultimately be

void or otherwise rendered meaningless based on the outcome

of the Ninth Circuit appeal. Accordingly, the County

respectfully requests that the Court stay the CEQA action

pending the outcome of the Ninth Circuit appeal in the

CEMEX action.

* * * * *

EXCERPTS FROM EXHIBIT A

[Pages 13, 14 and 15]

B. The Relief Requested By The City In

The CEQA Action Would Directly

Interfere With The Injunctive Relief

Ordered By This Court In The Consent

Decree

Stated simply, the CEQA action is little more than a

disguised attempt to relitigate the City’s opposition to the

Consent Decree in the CEMEX action.’ This fact is best

evidenced by comparing the injunctive relief set forth in the

Order and Consent Decree with the relief requested in the

City’s Petition in the CEQA action.

The Order and Consent Decree command the following:

(1) the County is enjoined from taking any actions conflicting

with the provisions, terms, requirements, and obligations set

3

A true and correct copy of the City’s Opposition to Memoranda in

Support of Motion to Enter Consent Decree filed on April 2, 2004

(“Opposition”) is filed concurrently with the Appendices of Exhibits as

Exhibit 2. :

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forth in this Consent Decree; (2) the County is enjoined from

further delaying, frustrating or otherwise interfering with the

implementation of the Project as approved by the Bureau of

Land Management (“BLM”), including through delays in

approving the Project; (3) the County is ordered to complete

the environmental review process pursuant to CEQA and as

mandated in this Consent Decree within sixty (60) days from

the date of entry of this Consent Decree; (4) the County is

enjoined fromconducting further environmental review for the

County-Approved Project prior to issuance of its approval; (5)

the County is ordered to issue Project Findings, a Surface

Mining Permit, and Reclamation Plan in accordance with the

forms of these documents attached to the Consent Decree

with in sixty (60) days from the date of entry of the Consent

Decree; (6) the County is enjoined from taking any actions

that interfere with, conflict with, or otherwise frustrate or

impair the terms of this Consent Decree, and will take no

action to contradict the findings or determinations therein; (7)

the County is further enjoined from taking any actions which

seek to impair the implementation of this Consent Decree, or

that interfere with CEMEX’s or the United States’ interests

relating to the Project or the Project Site; and (8) the County

is enjoined from taking any actions which affect the rights or

interests of CEMEX or the United States relating to the

Project or Project Site, before any other body, agency or

official. (See Consent Decree, pp. 60:8-61:9)

The City’s prayer for relief in the CEQA action seeks the

following relief, all in direct conflict with the Consent Decree:

(1) issuance of a preemptory writ of mandate ordering the

‘County to set aside certification of the EIR and ancillary

documents; (2) issuance of a TRO or preliminary injunction

restraining the County from taking further action to implement

or proceed with the Project; (3) a determination that the

County violated CEQA and that the County’s approvals

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relating to the Project are void; (4) a determination that the

FEIR is inadequate and that a new EIR must be prepared; (5)

issuance of a preliminary injunction enjoining the County, the

United States and CEMEX from taking further action to

proceed with the Project. (See Petition, p. 51:1-18)

The relief requested by the City in the Petition thus

challenges the County’s actions that were undertaken based

on: (1) the County’s independent review and analysis of the

FEIR and administrative record, which includes the County’s

analysis of the claims for and against the Project and FEIR

made by all commenting parties, including CEMEX’s and the

United States’ claims that federal law preempted the County

from further environmental review; and (2) the stipulations in

the Consent Decree and the determination by the District

Court in the CEMEX Action. The Consent Decree sets forth

the parameters of permissible County action based on the

parties’ and the Court’s conclusion regarding the effect of

federal laws and decisions on County authority, and thus the

applicability of preemption principles was adjudicated in the

CEMEX Action. The City’s purported state law claims are

little more than disguised challenges to the preemption issue

that was resolved in the Consent Decree and pursuant to

which the County conducted its actions now at issue, namely,

the extent to which the County had further authority or

discretion to conduct environmental re’ ‘ew for the Project.

* KKK *

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EXCERPTS FROM EXHIBIT B

[Pages 24, 37, 38, and 40-49]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ENTERED

CLERK, U.S. DISTRICT COURT

NOV 18 2004

CENTRAL DISTRICT OF CALIFORNIA

BY DEPUTY

FILED

CLERK, U.S. DISTRICT COURT

NOV 15 2004

CENTRAL DISTRICT OF CALIFORNIA

BY 7 DEPUTY

Priority v

Send

Enter

Closed

JS-5{S-6) —V_

JS-2/JS-

Scan Only

CITY OF SANTA CLARITA,

Petitioner/Plaintiff,

VS.

LOS ANGELES COUNTY BOARD

OF SUPERVISORS; COUNTY OF

LOS ANGELES, and DOES 1

through 10, inclusive,

Respondents/Defendants.

CEMEX, INC., a Louisiana Corporation;

UNITED STATES DEPARTMENT OF

INTERIOR; and ROES | through 10,

inclusive,

Real Parties in Interest.

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CASE NOS. CV 04-7355 DT (FMOx)

ORDER DENYING PLAINTIFF CITY OF SANTA

CLARITA’S MOTION TO REMAND REMOVED

ACTION TO THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA FOR THE COUNTY OF

LOS ANGELES; AND GRANTING REAL PARTY-

IN-INTEREST CEMEX, INC.’S (AS JOINED BY

DEFENDANTS LOS ANGELES COUNTY BOARD

OF SUPERVISORS AND COUNTY OF LOS

ANGELES AND REAL PARTY-IN-INTEREST

THE UNITED STATES DEPARTMENT OF

INTERIOR) MOTION FOR STAY OF ACTION

PENDING APPEAL

**e KK

: [Exhibit B; Pages 37, 38]

B. Analysis

Cemex seeks a stay of this action pending the outcome of

the Ninth Circuit appeal in Cemex v. County of Los Angeles,

Case No. CV 02-747 DT (FMOx) (“Cemex Action”).° It

argues that this current action (“CEQA Action”) involves

many of the same claims litigated between the same parties

that are presently on appeal in the Cemex Action. Specifically,

Cemex claims that (1) the relief requested by the City in the

CEQA Action would directly interfere with the injunctive

relief ordered by this Court in the Consent Decree and (2) the

CEQA Action predominantly raises issues already addressed

by the Judgment entering the Consent Decree.

® City appealed this Court’s Order Granting Motion for Entry of

Consent Decree on June 3, 2004.

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In Opposition, City argues that the Consent Decree is no

bar to proceeding with this action. It claims that in the

Appeal, its right of consultation under CEQA is at stake, and

that here, it challenges the adequacy of the County’s

environmental review from its inception to date. It states that

in this action, the substantive merits of the County’s FEIR

certification and Project approval are squarely at issue, and

that the challenged County actions occurred approximately 60

days after the entry of the Consent Decree.

Applying the Standard, supra, this Court finds that a stay

of this CEQA Action is warranted. —

eA EK

[Exhibit B: Pages 40-49]

2. The orderly course of justice

measured in terms of whether the

stay would simplify or complicate

issues, proof and questions of law

weighs in favor of a stay.

Another factor is “the orderly course of justice measured

in terms of whether the stay would simplify or complicate

issues, proof, and questions of law.” CMAX, Inc., 300 F.2d

at 268. This Court finds that a stay would simplify issues,

proof and questions of law. As Cemex asserts, the relief

requested by the City in the CEQA Action would directly

interfere with the injunctive relief ordered by this Court in the

Consent Decree, and the CEQA Action predominantly raises

issues already addressed by the Judgment entering the Consent

Decree.

a. Conflict regarding Injunctive relief

Comparing the injunctive relief set forth in the Order and

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Consent Decree with the relief requested by City in this CEQA

Action, it is evident that City is attempting substantially to

relitigate its Opposition to the Consent Decree in the Cemex

Action.

The Order and Consent Decree mandate the following:

1.

The County is enjoined from taking any actions

conflicting with the provisions set forth in this

Consent Decree, and is enjoined to comply with all

provisions, terms, requirements and obligations set

forth in this Consent Decree;

The County is enjoined from further delaying,

frustrating or otherwise interfering with the

implementation of the Project as approved by the

Bureau of Land Management (“BLM”), including

through delays in approving the Project;

The County is ordered to complete the environ-

mental review process pursuant to CEQA and as

mandated in this Consent Decree within sixty (60)

days from the date of entry of this Consent Decree;

The County is enjoined from conducting further

environmental review for the County-Approved

Project prior to issuance of its approval;

The County is ordered to issue Project Findings, a

Surface Mining Permit, and Reclamation Plan in

accordance with the forms of these documents

attached to the Consent Decree within sixty (60)

days from the date of entry of the Consent Decree;

The County is enjoined from taking any actions that

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interfere with, conflict with, or otherwise frustrate or

impair the terms of this Consent Decree, and will

take no action to contradict the findings or

determinations therein;

The County is further enjoined from taking any

actions which seek to impair the implementation of

this Consent Decree, or that interfere with Cemex’s

or the United States’ interests relating to the Project

or the Project Site; and

The-County is enjoined from taking any actions

which affect the rights or interests of Cemex or the

United States relating to the Project or Project Site,

before any other body, agency or official.

(Consent Decree, pp. 60-61.)

In this action, City seeks the following relief, all of which

conflicts with the Consent Decree:

hy

issuance of a peremptory writ of mandate ordering

the County to set aside certification of the EIR and

ancillary documents;

issuance of a TRO or preliminary injunction

restraining the County from taking further action to

implement or proceed with the Project;

a determination that the County violated CEQA and

that the County’s approvals relating to the Project

are void;

a determination that the FEIR is inadequate and that

a new EIR must be prepared;

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5. issuance of a preliminary injunction enjoining the

County, the USDOI and Cemex from taking further

action to proceed with the Project.

(Petition, p. 51.)

The Consent Decree sets forth the parameters of

permissible County action based on determinations regarding

the effect of federal laws and decisions on County authority.

As such, the applicability of preemption principles was

adjudicated in the Cemex Action, and here, City is attempting

to challenge the preemption issue by asserting state law

claims. City is also attempting to challenge the very actions of

the County — conducting environmental review for the Project

— which were authorized by the Consent Decree.

In its Opposition, City does not dispute that its requested

relief directly contradicts the Consent Decree’s injunctive

provisions. Instead, it argues that “if this court directs the

County to de-certify the FEIR and revoke the Permit, then the

County is obligated to do so and would not be violating the

injunctive provisions.” In other words, if the County is

subsequently ordered to take other action, it must do it. By

making this argument, City misses the point. It cannot be

disputed that once a purported conflict is resolved and action

is ordered, the parties are bound to comply. However, at

issue here is when the appropriate time for such resolution

should occur. This Court opines that the appropriate time is

after similar issues are resolved on appeal and not

simultaneously. Indeed, a main purpose of this stay is to avoid

conflicting or inconsistent determinations or orders. Again,

City does not deny that this risk exists. Furthermore, even if

this risk was not present, then at a minimum, the appeal may

narrow and/or moot the issues, as explained below.

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b. Similar issues in the CEQA

and Cemex actions

This Court finds that similar issues exist between the

Cemex action and the CEQA action which counsel in favor of

stay. More specifically, in this action, City asserts claims

which were addressed in the Cemex Action when City made

challenges to the Consent Decree.

(1) further CEQA review

City presently claims that the County has failed to exercise

independent judgment due to the Consent Decree. It states

that the County has “provided no CEQA-based rationale for

repudiating the prior Findings” for the Project and that the

County has “deferr{ed] all independent judgment to a third

party in clear violation of CEQA.” (Petition, p. 30.) It further

claims that “despite no favorable changes to the actual

environmental conditions at the project, [the County has]

capitulated to the concept of preemption... .” (Jd. at 31)

Similarly, in its Opposition to the Consent Decree in the

Cemex Action, City argued that the Consent Decree

impermissibly asked the Court to determine that further

County environmental review would be _ preempted.

(Opposition, pp. 18-19.) However, this Court addressed these

issues in its Order: “[t]he City’s main concern is that the

Consent Decree does not allow for full compliance. Thus,

perhaps in an effort to obscure the fact that the County review

process does in fact comply with state law, the City contends

that this Court does not have the authority to approve the

Proposed Consent Decree absent an express finding that any

application of CEQA to the Project is preempted.” (Order, p.

20.) It then determined that based on “the Administrative

Record before the Court and the long history of environmental

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analysis conducted on this Project, it is this Court’s finding

that the Consent Decree sets forth a Project that complies with

all substantive requirements of CEQA, fully identifies

significant environmental effects and feasible mitigations, and

which, in fact, provides additional environmental and other

benefits to the County as a whole and the City in particular.”

(Id.) Finally, this Court found that further environmental

review was preempted: “this Court independently finds on the

basis of the record before it, that only further County review

is preempted, because the Consent Decree and its related

documents satisfy the requirements of state law, including

both CEQA and... [SMARAJ.” (/d. at 21.) Thus, City’s

current claims that the Project fails to satisfy CEQA’s

requirements is an issue encompassed by the Court’s Order.

(2) “retroactive conduct” provisions

City claims that “retroactive conduct” provisions in the

Consent Decree “intimidate” the County and prevent the

County from carrying out its purported obligatious under state

law due to “threats” and coercion from Cemex. Again, this

Court finds that these are claims that this Court addressed in

its prior Order, concluding that “contrary to the unsubstan-

tiated allegations of the City, the Consent Decree did not arise

as a result of ‘duress’ and ‘coercion.’” (Order, p. 14.) After

a lengthy discussion, this Court concluded that the purported

“retroactive conduct” provision in the Consent Decree in no

way interfered with the County’s ability to carry out its

functions in relation to the Project. (/d. at 14-18.)

(3) claims regarding the supplemental

biological opinion

City’s Petition challenges that the Supplemental Biological

Opinion (“SBO”) prepared by the U.S. Fish and Wildlife

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Service for the Project in 2001 to address potential impacts on

the arroyo toad, a federally-listed endangered species, “does

nothing to preserve the Arroyo Toad species.” (Petition, p.

32.) It claims that various provisions in the SBO, identified to

minimize impacts to the arroyo toad, actually create greater

impacts to the arroyo toad and thus “eviscerates” the County’s

ability to enforce mitigation measures for the Project in

violation of CEQA. (id. at [ 67, 69, 77-73, 77, 78.) In its

Opposition in the Cemex Action, City raised nearly identical

claims, arguing that recirculation under Section 15088.5 of the

CEQA Guidelines was triggered due to the mitigation

measures identified in the SBO.’ (Opposition, pp. 26-29.) In

the Order, this Court addressed these claims, concluding that

they were “without merit and lacking of evidence.” (Order, p.

26.) Specifically, this Court concluded that “this Court finds

that the Project remains as previously analyzed and has not

significantly changed in a way relevant to environmental

concerns. Since the City’s challenge to the Consent Decree is

based on alleged project changes in without merit, no. . .

recirculation of the EIR is required.” (/d. at 27.)

(4) claims regarding an alleged “project

acceleration” condition

As it did in opposing the Consent Decree, City claims that

an alleged “project acceleration” condition “allows for a

stepped increase in mining production” and a “drastic

acceleration in the sale of marketable material” purportedly

shortening “the twenty year term of the Project by nine years.”

(Petition, pp. 37-38.) This language is identical to the

language used by City in its Opposition to the Consent

Decree. This Court dismissed the City’s “project

” As noted by the County, paragraph 67 of the Petition contains

language identical to a portion of the City’s prior Opposition.

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acceleration” theory, concluding that, in fact, the condition

was nothing more than a cap on the amount of yearly

production that Cemex might carry out. (Order, pp. 27-28.)

(S) claims regarding purported undis-

closed cancer risks

City alleges that there are “undisclosed cancer risks” for

the Project. (Petition, { 86-94.) Again, City repeats this

claim from its Opposition, and again this Court already

addressed the claims. This Court concluded that “the County

has carefully and conscientiously examined any comment

letters which purport to raise significant new information, and

made specific and extensive findings that no new information

has been raised.” (Order, p. 30.) As such, this Court

concluded that City’s claims regarding “undisclosed cancer

risks” did not raise any significant new information affecting

the environmental conclusions for the Project. (/d. at 31.)

(6) claims regarding air and water

permits

City alleges that Cemex must obtain air and water permits

from various state agencies, and that the Record of Decision

for the Project purportedly requires that Cemex obtain various

permits. (Petition, 95-100.) It alleges that these permits

may not be obtained until “all of the information needed for an

accurate assessment of air and water quality impacts has been

gathered and analyzed.” (/d. at p. 43.) Not surprisingly, City

had argued in its Opposition that the “CEQA process . . . may

not be concluded until all of the information needed for an

accurate assessment of air quality impacts has been gathered

and analyzed.” (Opposition, p. 44.) As this Court stated

previously, “nothing in the Decree purports to affect any

CEQA processes that may be ancillary to Federal Clean Air

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Act or Federal Clean Water Act permits that Cemex needs to

operate the project. Thus, nothing in the Consent Decree

restrains the AQMD or the State Water Resources Control

Board from conducting such CEQA procedures as may be

required by law.” (Order, p. 33.)

(7) other claims

The County also points out that a number of other claims

raised by the City were also raised in its Opposition to the

Consent Decree and resolved by this Court:

1. City claimed that the current conclusions in the

Consent Decree regarding traffic methodologies are improper;

this is an issue raised here (see Opposition, p. 38; Petition,

{ 101);

2. Cityclaimed in its Opposition that it “has an absolute

right to be consulted [by the County] on this Project under

CEQA” (Opposition, p. 24) and now claims that “certification

of the EIR was done in disregard for the rights of the City

because it vitiates the City’s absolute right to consultation

pursuant to CEQA .. .” (Petition, ¥ 109);

3. City’s claims regarding alleged procedural

improprieties in the County’s Findings raised in its Opposition

(see, e.g., Opposition, pp. 37-40) are mirrored in City’s

Seventh Claim for Relief, alleging County failure to make

necessary Findings. (Petition, {{ 116-120.)

Thus, in view of the above conflict between the injunctive

relief of the Order and Consent Decree and the relief

requested here and the similar issues between the Cemex and

CEQA Actions, this Court finds that the orderly course of

justice weighs in favor of a stay.

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In Opposition, City argues that a decision on the Appeal

will not simplify the issues in this action because the issues

differ. It claims that its current issues regarding project

splitting, inadequacies of the project description, inadequate

cumulative effects analysis, failure to re-circulate, and

violations of the DMS were not before the Court in the Cemex

Action. In making its determination, this Court is by no means

finding that all issues in the Cemex and CEQA Actions are

identical. Instead, as demonstrated above, this Court finds

that a significant overlap of facts and questions of law exists.

This overlap is sufficient to satisfy the requisite factor of

“whether the stay would simplify . . . issues, proof, and

questions of law.” The standard is not whether the issues are

identical, as City advocates. As stated in the Standard, supra,

a stay of an action pending resolution of independent

proceedings which bear upon the case does not require that

the issues in such proceedings are necessarily controlling of

the action before the Court. Mediterranean Enterprises, Inc.,

708 F.2d at 1465 (quoting Leyva v. Certified Grocers of

California, Ltd., 593 F.2d 857, 864 (9th Cir. 1979)).

Furthermore, City cannot seriously dispute that an

affirmance of some issues in the Cemex action could subject

the present claims to res judicata and/or collateral estoppel, or

at the very least, would narrow the present claims. Moreover,

if the Ninth Circuit reverses or overturns the Consent Decree,

this CEQA Action essentially becomes moot. For those legal

and factual issues not affected by the Appeal, City will have its

opportunity to address and litigate them. As such, a stay will

not offend “fundamental fairness” which, as City states,

“requires that the City have a complete and full opportunity to

substantively litigate its state law claims regarding the

County’s FEIR certification and Project approval.” A stay is

just that and not a determination on the merits of City’s

claims. When the stay is lifted, City will have its opportunity

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to present all remaining claims of its case.

* * KOK *