|
|
 |
Reproduced by California Resources Agency with the
permission of LexisNexis. Copyright 2007
LexisNexis, a division of Reed Elsevier Inc.
All rights reserved. No copyright
is claimed as to any portion of the original work prepared by a government
officer or employee as part of that person’s official duties. COUNTY
OF IMPERIAL, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY,
Respondent; STATE WATER RESOURCES CONTROL BOARD et al., Real Parties in
Interest. C048984 COURT
OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT 152
Cal. App. 4th 13;
61 Cal. Rptr. 3d 145; 2007 Cal. App. LEXIS 992 June
14, 2007, Filed SUBSEQUENT HISTORY: Modified and rehearing denied by County
of Imperial v. Superior Court, 2007 Cal. App. LEXIS 1163 (Cal. App. 3d Dist.,
July 13, 2007) PRIOR-HISTORY:
ORIGINAL PROCEEDING following a judgment of the Superior Court of
Sacramento County, Nos. JCCP 4353, 03CS00082, 04CS00876, Roland L. Candee,
Judge. COUNSEL: Ralph Cordova, Jr., County Counsel,
Joanne L. Yeager, Deputy County Counsel; Rossmann and Moore, Antonio Rossmann,
Roger B. Moore and David R. Owen for Petitioner. Ralph Cordova, Jr., County Counsel,
Joanne L. Yeager, Deputy County Counsel; Jackson DeMarco & Peckenpaugh,
Michael L. Tidus, Alene M. Taber and Kathryn M. Casey for Imperial County Air Pollution
Control District as Amicus Curiae on behalf of Petitioner. Kurt R. Wiese; Shute, Mihaly &
Weinberger, Ellen J. Garber and David Nawi for South Coast Air Quality
Management District as Amicus Curiae on behalf of Petitioner. Law Office of J. William Yeates, J.
William Yeates, Mary U. Akens and Keith G. Wagner for Planning and Conservation
League, National Audubon Society and Defenders of Wildlife as Amici Curiae on
behalf of Petitioner. No appearance for Respondent. Bill Lockyer and Edmund G. Brown, Jr.,
Attorneys General, Mary E. Hackenbracht, Assistant Attorney General, Matthew
Goldman, Peter von Haam and Clifford T. Lee, Deputy Attorneys General, for Real
Party in Interest State Water Resources Control Board. Allen Matkins Leck Gamble & Mallory,
David L. Osias, Robert R. Barnes, Jeffrey R. Patterson, Mark J. Hattam; Horton,
Knox, Carter & Foote and John Penn Carter for Real Party in Interest
Imperial Irrigation District. Hatch & Parent, Lisabeth D. Rothman,
Susannah M. Mitchell; and Daniel S. Hentschke for Real Party in Interest San
Diego County Water Authority. Jeffrey Kightlinger, Adam C. Kear; and
Linus Masouredis for Real Party in Interest The Metropolitan Water District of
Southern California. Redwine and Sherrill, Gerald D. Shoaf,
Steven B. Abbott; Best, Best & Krieger, Michelle Ouellette and Megan K.
Starr for Real Party in Interest Coachella Valley Water District. JUDGES: Raye, J., with Nicholson, Acting P. J.,
and Robie, J., concurring. OPINION BY: Raye OPINION RAYE, J.--As Mark Twain is said to have
observed: "Whiskey is for drinking; water is for fighting over."
California and water are inextricably linked in a battle royal waged over
distribution of this precious resource among competing interests. No other
resource is as vital to California's cities, agriculture, industry, and
environment as this liquid gold. Predictably, no other resource generates such
heated controversy as this commodity sometimes referred to as the "oil of
the 21st century." Here, real parties in interest Imperial
Irrigation District (Imperial) and San Diego County Water Authority (San Diego)
sought to enter into an agreement to transfer 300,000 acre-feet of water per
year (afy) from Imperial to San Diego. Ultimately, the parties agreed to transfer
200,000 afy and conserve 100,000 afy for possible future acquisition by the
Metropolitan Water District of Southern California (Metropolitan) and Coachella
Valley Water District (Coachella). Real
party in interest State Water Resources Control Board (Board) approved the
transfer. Petitioner County of Imperial (County) filed two separate mandamus
petitions challenging various aspects of the Board's decision under the
California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et
seq.). The first petition named the Board as respondent and Imperial and
San Diego as real parties in interest. The second petition named Imperial as respondent
and San Diego as real party in interest. Neither petition named Metropolitan or
Coachella. Imperial
demurred, arguing the County failed to name Metropolitan or Coachella, who were
indispensable parties in both proceedings. The trial court sustained the
demurrers with leave to amend. Subsequently, the County amended the petitions,
naming Metropolitan and Coachella as interested parties. Metropolitan,
Coachella, and San Diego filed joint demurrers, arguing Metropolitan and
Coachella could not be added after the statute of limitations ran. The trial
court sustained the demurrers without leave to amend, finding Metropolitan and
Coachella Valley indispensable parties and finding the statute of limitations
had run. The
County filed a petition for writ of mandate. We issued an alternative writ. 1 The County argues the trial court abused
its discretion in dismissing the action after finding Metropolitan and
Coachella indispensable parties. We find no abuse of trial court discretion and
shall affirm the trial court's judgment sustaining the demurrers without leave
to amend. 1 Petitioner's request for calendar preference
is dismissed as moot. FACTUAL AND PROCEDURAL BACKGROUND The
County petitions for relief from orders in two separate, but connected, cases.
In County of Imperial v. State Water Resources Control Board (Super. Ct.
Sac. County, 2003, No. 03CS00082) (case No. 82), the County challenges the
Board's approved permit application for a transfer of water from Imperial to
San Diego. In County of Imperial v. Imperial Irrigation District (Super.
Ct. Sac. County, 2004, No. 04CS00876) (case No. 876), the County posited
various CEQA challenges to the underlying agreement between the transferring
parties. Although
this litigation concerns numerous entities and has spawned a voluminous record,
at its essence the petition rests upon the trial court's determination that
Metropolitan and Coachella represented indispensable parties in case No. 82 and
case No. 876. With this limited procedural question in mind, we review the
factual and procedural background. Imperial and Colorado River Water Imperial
is the largest single holder of water rights on the Colorado River in
California. In 1914 California initiated the water rights permitting system
currently administered by the Board. Imperial was formed in 1911 to bring
Colorado River water to California's Imperial Valley. Each year, Imperial
provides enough water to irrigate 500,000 acres in the Imperial Valley. Imperial also delivers water to
cities, schools, and businesses. (Imperial Irr. Dist. v. U.S. E.P.A. (9th
Cir. 1993) 4 F.3d 774, 774-775.) Metropolitan
and Coachella also possess water rights on the Colorado River under an
agreement among all California water rights holders known as the Seven Party
Agreement of 1931 (Seven Party Agreement). The Seven Party Agreement placed
water rights holders in a priority system. Most of Imperial's water rights
under this system take priority over most of Coachella's and over all of
Metropolitan's. Based on its place in the priority system, Imperial is entitled
to divert its full right to water before Metropolitan can divert any water at
all. San Diego possesses no Colorado River water rights. This
priority system led to a conflict among Imperial, San Diego, Metropolitan, and
Coachella. Imperial and San Diego contend Imperial may reduce its water use and
designate another recipient to receive its unused water. In essence, Imperial
may transfer excess water. Coachella and
Metropolitan disagree and argue that under federal law, any water unused
by Imperial is available to them under the priority system. In the
1980's, the Board found some of Imperial's water use practices unreasonable and
wasteful. The Board directed Imperial to increase water conservation. One
suggested measure by which Imperial could increase conservation was to transfer
conserved water to a willing purchaser in exchange for funding to support
Imperial's conservation efforts. Imperial and San Diego's Petition to the
Board In
1998 Imperial and San Diego executed an agreement under which San Diego would
fund water conservation measures within Imperial's service area in exchange for
Imperial's transfer of up to 300,000 afy to San Diego (transfer agreement).
Imperial and San Diego jointly petitioned the Board to approve changes in the
point of diversion and place of use in Imperial's water rights permit to allow
an annual transfer on a long-term basis of up to 300,000 afy of Colorado River
water from Imperial to San Diego for up to 75 years. The petition noted the
agreement was ineffective until completion of environmental review, when the
agencies would determine whether to go forward with the project. The
Legislature provides for Board approval of long-term transfers of water between
water districts. (Wat. Code, §§ 1735-1737.) Water Code section 1735
states: "The board may consider a petition for a long-term transfer of
water or water rights involving a change of point of diversion, place of use,
or purpose of use. A long-term transfer shall be for any period in excess of
one year." A
request for approval of a long-term water transfer must be filed by the holder
of the water right, permit, or license. (Cal. Code Regs., tit. 23, § 811.)
A request for a change in point of diversion, place of use, or purpose of use
must be filed by the rights holder. (Wat. Code, § 1701.) Water
Code section 1736
provides that the Board may approve a petition for transfer: "The board,
after providing notice and opportunity for a hearing, including, but not
limited to, written notice to, and an opportunity for review and recommendation
by, the Department of Fish and Game, may approve such a petition for a
long-term transfer where the change would not result in a substantial injury to
any legal user of water and would not unreasonably affect fish, wildlife, or
other instream beneficial uses." The County protested the petition for approval
of the transfer. The County argued the transfer would lead to detrimental third
party effects on the County's economy
and environment. The County emphasized the impacts caused by the transfer's
effects on the Salton Sea and the potentially severe air quality impacts
associated with fallowing land and drying out the Salton Sea. Metropolitan and Coachella Protest the
Transfer Metropolitan
and Coachella protested the transfer petition, contending the transfer violated
their priority rights under the Seven Party Agreement and the Board lacked
jurisdiction because federal law preempted state regulation of Colorado River
transfers. Metropolitan and Coachella indicated their objections could be
resolved as part of a broader resolution of Colorado River issues. Quantification Settlement Agreement While
the transfer petition was pending, negotiations began to reduce and
redistribute California's use of Colorado River water in accordance with
guidelines adopted by the Secretary of the Interior. These guidelines were
designed to reduce California's Colorado River water usage from 5.2 million afy
to 4.4 million afy, in accordance with rules established by the Supreme Court
in Arizona v. California (1963) 373 U.S. 546 [10 L. Ed. 2d 542, 83 S. Ct.
1468]. The
quantification settlement agreement (QSA) negotiations involved high-level
discussions among Colorado River water agencies, federal and state officials,
and stakeholders to resolve long-standing disputes about quantification of
Colorado River water rights. The disputes included reasonable and beneficial
use of river water, transfers and exchanges between water users, federal
delivery of surplus water to California, and various environmental and socioeconomic
impacts to the County from implementation of the proposed QSA?s. The
transfer of water from agricultural to urban uses formed a key element of the
plan. The transfer between Imperial and San Diego was the largest such
transfer. These negotiations over the reduction of California's use of Colorado
River water led to the negotiation of the QSA and the individual QSA's. The Protest Dismissal Agreement To
resolve Coachella and Metropolitan's objections to the transfer agreement,
Imperial, San Diego, Coachella, and Metropolitan entered into the protest dismissal
agreement (PDA). The
PDA amended the transfer petition to reduce the water transfer to San Diego
from 300,000 afy to 200,000 afy, and to make the 100,000 afy difference
available for acquisition by Metropolitan and Coachella. Drafts of the agreements
for these transfers, along with a draft of the QSA, were submitted as exhibits
in the Board proceeding. The
Board sent out a public notice that it would now consider approving not only
the proposed water transfer from Imperial to San Diego, but also the proposed
transfers from Imperial to Coachella and Metropolitan. The Board notice stated
that despite the parties' not using the word "transfer" for the water
going to Coachella and Metropolitan, the Board considered approval of an acquisition
to be approval of a transfer. The Board served a copy of the notice on the
County. 2 2 The Board's revised notice states, in part:
"Petitioners stressed that they do not consider the proposed acquisition
of water by [Coachella] and [Metropolitan] to be a transfer. Petitioners have
requested, however, a change in [Imperial's] Permit 7643 that would authorize
the transfer of water to [Coachella] and [Metropolitan] under [Imperial's]
permit. Accordingly, this notice uses the word 'transfer' to describe the
amendment to the petition." Metropolitan
and Coachella agreed to withdraw their protests and allow the Board to hear and approve the transfer
project, including the acquisition of water by Coachella and/or Metropolitan. 3 The parties agreed that any decision by the
Board on the transfer project would be nonprecedential, and San Diego would not
use the Board's decision to argue in another proceeding that Board approval was
required to make water available to Coachella or Metropolitan. Mindful of
federal preemption issues, all parties also agreed to urge the Board to include
a statement that its decision "shall not establish the applicability or
nonapplicability of California law or federal law to any of the matters raised
by the Petition or any other Colorado River transfer or acquisition." 3 The PDA states: "The parties will urge
the [Board] to schedule a hearing on the Petition as soon as all pertinent
environmental review documents have been released for public comment. The scope
of the hearing ... should encompass the conservation of up to 300,000 afy of
Colorado River water, the transfer of up to 200,000 afy of conserved water to
[San Diego] and the acquisition of an additional 100,000 afy of conserved water
by [Coachella] and [Metropolitan], and the corresponding changes in point of
diversion, place of use, and purpose of use to be made to [Imperial] Permit
7643. ... Notwithstanding the continuing disagreement among the Parties about
the jurisdiction of the [Board] over these issues ... pursuant to the settlement
agreement among the Parties, [Coachella] and [Metropolitan] agree that a
[Board] hearing should take place to consider the conserved water transfer to
[San Diego] and the conserved water acquisition by [Coachella], and the
conserved water acquisition by [Metropolitan] ... ." In
comments before the Board at the time of the protest dismissal, Metropolitan
argued the Board would not be considering approval of any action by
Metropolitan or Coachella: "... Metropolitan reminds the State Board that
no party is seeking approval of a 'transfer' with respect to the possible conservation and acquisition by
Metropolitan of up to 100,000 acre feet of water from [Imperial]." Subsequent Proceedings After
withdrawing their protests before the Board, Metropolitan and Coachella ceased
participating in the Board proceeding. Neither party submitted any briefing or
exhibits, nor did either party participate in the Board's public hearing. While
the Board proceeding was pending, Imperial, as lead agency, prepared the draft
and final environmental impact reports (DEIR and FEIR, respectively) for the
water transfer from Imperial to San Diego. Imperial certified and submitted the
DEIR and FEIR. Part of the DEIR project description includes the transfer of
water by Imperial to San Diego, Coachella, and Metropolitan. In an
order adopted in October 2002 and amended in December 2002, the Board approved
Imperial and San Diego's transfer petition. As requested by Imperial, the
orders expressly clarified that the water districts were still to make the
final decisions regarding all water transfers or acquisitions. The Board filed
its notice of determination for approval of Imperial and San Diego's transfer
petition. The Board relied on Imperial's transfer project FEIR. However,
on December 9, 2002, Imperial's board of directors declined to approve the
proposed QSA or adopt the transfer
project. Subsequently, the Board
approved the QSA, but with conditions unacceptable to Metropolitan and
Coachella. The agencies failed to meet the Department of Interior's deadline
for QSA approval. In January 2003 none of the proposed QSA-related agreements,
including the proposed agreements by which Metropolitan and Coachella would
acquire water from Imperial, were finalized. On
January 21, 2003, the County filed its mandamus petition in case No. 82, naming
the Board as respondent and Imperial and San Diego as real parties in interest.
The petition challenged the Board's order approving the transfer. The County
did not name Metropolitan or Coachella. Because of the absence of any final
approval of the underlying transfer project, and by agreement of the parties,
case No. 82 was stayed. On
October 2, 2003, Imperial approved the transfer project. On October 10, 2003,
Imperial, Metropolitan, and Coachella signed the QSA and finalized the
QSA-related agreements. On
November 6, 2003, the County filed case No. 876, challenging the transfer
between Imperial and San Diego. Between January and April 2004, case No. 82 and
case No. 876 were coordinated. The County filed first amended petitions in both
cases. Imperial filed demurrers in both cases, arguing the County failed to
name indispensable parties Metropolitan and Coachella. The
trial court sustained Imperial's demurrers in both cases on indispensable party
grounds and granted leave to amend. Accordingly, the County amended its
petitions, naming Metropolitan and Coachella as interested parties consistent
with the court's order but stating it did not consider either entity a real
party in interest. Metropolitan,
Coachella, and San Diego filed joint demurrers to the County's second amended
petitions, arguing Metropolitan and Coachella could not be added after the
statute of limitations had run. The County opposed the demurrers, arguing
neither Metropolitan nor Coachella was indispensable in either case. In reply,
Metropolitan and Coachella argued they were indispensable parties. At
oral argument, the County argued Metropolitan and Coachella were not
indispensable parties; Metropolitan and Coachella responded that they had
received an approval from the Board and were therefore indispensable. Imperial
also urged that the two water districts were indispensable parties as
recipients of a water transfer approved by the Board. The
trial court found Metropolitan and Coachella indispensable parties in case No.
82 and case No. 876. The court based its ruling on Public Resources Code
section 21167.6.5 and Code of Civil Procedure section 389. 4 The court sustained the demurrers
without leave to amend in both cases. 4 All further statutory references are to the
Public Resources Code unless otherwise indicated. According
to the trial court, the County failed to timely name Metropolitan and Coachella
in its petitions. The unnamed parties were recipients of an approval under section
21167.6.5, requiring them to be named in the County's petition. In
determining whether Metropolitan and Coachella qualified as indispensable
parties, the court found Metropolitan and Coachella had interests divergent
from those of the named parties that might be impaired by the underlying litigation.
In addition, the court reasoned the County could protect its interests in the
coordinated proceedings. The court concluded the County failed to name
indispensable parties Metropolitan and Coachella within the limitations period and sustained
the demurrers without leave to amend. The County filed a timely petition for
writ of mandate in this court. 5
5 The requests for judicial notice filed by
Imperial, Coachella, and the Board are granted. DISCUSSION Standard of Review The
County challenges the trial court's order sustaining Metropolitan's,
Coachella's, and San Diego's demurrers without leave to amend. We review the
indispensable party question under Code of Civil Procedure section 389
for an abuse of discretion. (Deltakeeper v. Oakdale Irrigation Dist. (2001)
94 Cal.App.4th 1092, 1106 [115 Cal. Rptr. 2d 244] (Deltakeeper).) We
review de novo the interpretation of a statute. (Hill v. City of Clovis
(2000) 80 Cal.App.4th 438, 446 [94 Cal. Rptr. 2d 901].) Necessary and Indispensable Parties Code
of Civil Procedure section 389
governs the joinder of parties and provides, in pertinent part: "(a) A
person who is subject to service of process and whose joinder will not deprive
the court of jurisdiction over the subject matter of the action shall be joined
as a party in the action if (1) in his absence complete relief cannot be
accorded among those already parties or (2) he claims an interest relating to
the subject of the action and is so situated that the disposition of the action
in his absence may (i) as a practical matter impair or impede his ability to
protect that interest or (ii) leave any of the persons already parties subject
to a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest. If he has not been so joined,
the court shall order that he be made a party. "(b)
If a person as described in paragraph (1) or (2) of subdivision (a) cannot be
made a party, the court shall determine whether in equity and good conscience
the action should proceed among the parties before it, or should be dismissed
without prejudice, the absent person being thus regarded as indispensable. The
factors to be considered by the court include: (1) to what extent a judgment
rendered in the person's absence might be prejudicial to him or those already
parties; (2) the extent to which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the prejudice can be lessened or
avoided; (3) whether a judgment rendered in the person's absence will be adequate;
(4) whether the plaintiff or cross-complainant will have an adequate remedy if
the action is dismissed for nonjoinder." Subdivision
(a) of Code of Civil Procedure section 389 defines the persons who ought to be joined if possible,
often referred to as "necessary parties." A determination that a party
is a necessary party is the predicate for the determination of whether the
party is indispensable. Thus, subdivision (b) of section 389 sets forth
the factors the court should consider in determining "whether in equity
and good conscience the action should proceed among the parties before it, or
should be dismissed without prejudice, the absent person being thus regarded as
indispensable." A
court must consider fairness and equity in deciding whether a party is
indispensable. A court has the power to proceed with a case even if
indispensable parties are not joined. Courts must be careful to avoid
converting a discretionary power or rule of fairness into an arbitrary and burdensome requirement that may thwart
rather than further justice. (People ex rel. Lungren v. Community
Redevelopment Agency (1997) 56 Cal.App.4th 868, 876 [65 Cal. Rptr. 2d 786].)
In the CEQA context, "[t]he public has a right to insist on the adequacy
of the environmental document upon which the agency makes its decision,"
and courts should avoid thwarting this purpose through the harsh application of
indispensable party rules. (Deltakeeper, supra, 94 Cal.App.4th at p. 1109.)
Deltakeeper The
County asserts the facts before us harken back to our previous decision in Deltakeeper.
Real parties in interest distinguish Deltakeeper. The trial court found Deltakeeper
had been legislatively disapproved and was no longer controlling. Given the
cacophony over our previous decision, we examine Deltakeeper in some detail. In Deltakeeper,
named defendants, three irrigation districts (Oakdale, South San Joaquin, and
Stockton East) entered into a joint district water purchase agreement
(Agreement) together with the City of Stockton (City) and three water districts
(Lincoln Village, Colonial Heights, and Central San Joaquin) for the sale of
water by Oakdale and South San Joaquin to the other parties to the Agreement.
As the lead agencies, Oakdale and South San Joaquin prepared an environmental impact
report (EIR) for the project. (Deltakeeper, supra, 94 Cal.App.4th at p. 1095.) The
plaintiffs, a group of environmental and recreational groups, challenged the
EIR by a petition for writ of mandate against Oakdale, South San Joaquin, and
Stockton East. The trial court dismissed the petition for failure to join City,
Lincoln Village, and Colonial Heights as indispensable parties. We reversed. (Deltakeeper,
supra, 94 Cal.App.4th at pp. 1095-1096.) The
Agreement states that the water districts seek to transfer water to City and
three irrigation districts. The purchasers are required to pay for the water
whether or not they use it. The obligation of the water districts to deliver
water, and the concomitant obligation of the purchasers to pay for water, is
conditioned upon the adoption of an EIR. (Deltakeeper, supra, 94 Cal.App.4th
at pp. 1096-1097.) Under
the Agreement, City and two irrigation districts designate Stockton East to
carry out their obligations, including paying for, receiving, treating,
transporting, and distributing the water. However, each party is obligated to defend
its own interests in litigation or regulatory action, including CEQA
compliance, involving the Agreement. (Deltakeeper, supra, 94 Cal.App.4th at
p. 1097.) In
addition to this litigation clause, City, Lincoln Village, Colonial Heights,
and Stockton East entered into a separate agreement (the Stockton Agreement)
that provides for the joint control of litigation. Under the Stockton Agreement,
Stockton East will make litigation decisions after conferring with the other
parties. The Stockton Agreement binds Stockton East to a collective litigation
decision arrived at by a vote by all parties. (Deltakeeper, supra, 94
Cal.App.4th at pp. 1097-1098.) The
plaintiffs brought a writ of mandate action naming Oakdale and South San
Joaquin as respondents and Stockton East as real party in interest and
challenging the adequacy of the EIR. The trial court granted the defendants'
motion to dismiss for failure to join City, Lincoln Village, and Colonial
Heights as necessary and indispensable
parties within the limitations period. (Deltakeeper, supra, 94
Cal.App.4th at pp. 1098-1099.) On
appeal, we considered whether City, Lincoln Village, and Colonial Heights were
necessary parties under Code of Civil Procedure section 389, subdivision (a).
We found there was no risk of partial relief to the named parties in the
absence of the unnamed parties. Resolution of the adequacy of the EIR would
provide the named parties with complete relief. (Deltakeeper, supra, 94
Cal.App.4th at p. 1101.) We noted the central issue was the adequacy of the
EIR and found: "Plaintiffs timely named as defendants three parties to the
Agreement, all of whom have a strong interest in upholding the EIR so as to
obtain the benefits of the Agreement. A party's ability to protect its interest
is not impaired or impeded as a practical matter where a joined party has the
same interest in the litigation." (Id. at p. 1102.) We
also noted that under the separate Stockton Agreement, City, Lincoln Village,
and Colonial Heights had a vote in control of the litigation, bestowing on them
the right to participate in and control the CEQA litigation. In addition, the nonjoined parties did not
dispute that their interests in the CEQA litigation could be adequately
represented by the defendants. (Deltakeeper, supra, 94 Cal.App.4th at p.
1103.) The
unnamed parties claimed they were materially interested in the litigation
because of the practical effect the CEQA litigation would have on them as
parties to the water transfer agreement. We agreed, finding the unnamed parties
had a contractual interest that would be injuriously affected by a judgment
declaring the EIR to be inadequate. We proceeded on the assumption that the
unnamed parties were necessary parties. (Deltakeeper, supra, 94 Cal.App.4th
at p. 1105.) We
then considered whether the unnamed parties were indispensable parties under Code
of Civil Procedure section 389, subdivision (b). As to what extent a judgment
rendered in the parties' absence might be prejudicial, we found the nonjoined
parties had interests in the litigation, but those interests were adequately protected
by the named parties to the action. (Deltakeeper, supra, 94 Cal.App.4th at
p. 1107.) In
assessing whether there were measures by which prejudice could be lessened or
avoided, we considered what contribution the nonjoined parties could make to
the proceeding before the trial court. We found a proceeding to challenge an
EIR is unlike a trial of a typical contract action in which a party may present
evidence favorable to its position. At an EIR hearing, the parties are limited
to the issue of whether substantial evidence supports the lead agency's determination
that the EIR is adequate. No new evidence may be presented. This limited any
participation by the unnamed parties, since their arguments regarding the
sufficiency of the evidence necessarily would be based on the same evidence
addressed by the joined parties. (Deltakeeper, supra, 94 Cal.App.4th at pp.
1107-1108.) As to
whether the judgment rendered would be adequate, we determined that any
judgment rendered would adequately adjudicate the rights of the parties before
the court. The only question before the trial court was whether the EIR was
adequate. (Deltakeeper, supra, 94 Cal.App.4th at p. 1108.) Finally,
we found the plaintiffs would have no adequate remedy if the trial court
dismissed the action, since they would
have no recourse as the statute of limitations had run for joining more
parties. (Deltakeeper, supra, 94 Cal.App.4th at p. 1108.) We considered
the underlying policy of the CEQA legislation: to inform both decision makers
and the public of the environmental consequences of a proposed project. We
concluded that were we to find City, Lincoln Village, and Colonial Heights to
be indispensable parties, the adequacy of the EIR would escape judicial
scrutiny. Ultimately, "[s]uch a
harsh result is unnecessary where other parties have a unity of interest
in the CEQA litigation." (Deltakeeper, at p. 1109.) We determined
we could not, in equity and good conscience, find the action should be dismissed.
(Ibid.) Section 21167.6.5 Shortly
after we decided Deltakeeper, the Legislature enacted section
21167.6.5, which requires approval recipients to be named in CEQA
litigation and states, in its entirety: "(a)
The petitioner or plaintiff shall name, as a real party in interest, any
recipient of an approval that is the subject of an action or proceeding brought
pursuant to Section 21167, 21168, or 21168.5, and shall serve the petition
or complaint on that real party in interest, by personal service, mail
facsimile, or any other method permitted by law, not later than 20 business
days following service of the petition or complaint on the public agency. "(b)
The public agency shall provide the petitioner or plaintiff, not later than 10
business days following service of the petition or complaint on the public
agency, with a list of responsible agencies and any public agency having
jurisdiction over a natural resource affected by the project. "(c)
The petitioner or plaintiff shall provide the responsible agencies, and any
public agency having jurisdiction over a natural resource affected by the
project, with notice of the action or proceeding within 15 days of receipt of
the list described in subdivision (b). "(d)
Failure to name potential parties, other than those real parties in interest
described in subdivision (a), is not grounds for dismissal pursuant to Section
389 of the Code of Civil Procedure. "(e)
Nothing in this section is intended to affect an existing right of a party to
intervene in the action." (Italics added.) The Trial Court's Decision The
trial court considered Deltakeeper and determined that, although the
situation was similar, the case was no longer controlling after the adoption of
section 21167.6.5 in 2002. Rather, "[t]he legislative history and
intent indicates a reaction against Deltakeeper and a desire to
'strengthen the indispensability rule' by requiring that water transfer recipients
be involved in proceedings contesting the transfer." Noting
that water will flow to Metropolitan and Coachella only under Imperial's
contracts with the entities, the court found the Board's decision placed Metropolitan and Coachella within the
class of transferees that the Legislature sought to protect as "recipients
of approval" in section 21167.6.5, subdivision (a). Public
Resources Code section 21167.6.5
does not indicate the consequences of a failure to name "recipients of approval."
Nonetheless, the court concluded dismissal was possible if the unnamed parties
were found to be indispensable under Code of Civil Procedure section 389,
subdivision (b). Applying section 389, subdivision (b), the court
found a judgment against the Board would have detrimental consequences for the
absent entities because they would
potentially lose 100,000 afy intended for them. This 100,000 afy would serve at
least 200,000 households. In addition, Metropolitan and Coachella could face
the secondary impact of Colorado River diversions if annulment of the Board's
decision led to the unraveling of the QSA approach to bringing California
within its Colorado River compliance. According
to the court, the named parties did not have the same interests as the unnamed
parties. The court explained its position by simply laying out the differing
functions of the players: Imperial is an agricultural water supplier; San Diego
is an urban water retailer. In contrast, Metropolitan is an urban water wholesaler
and Coachella is an agricultural water user. Finally,
the court noted that the case management plan in the coordinated proceeding
permitted all parties to brief all issues. Thus, the county entities would have
the ability to assert their interests in the coordinated proceeding. After
weighing the Code of Civil Procedure section 389, subdivision (b)
criteria, the court concluded that dismissal of the County's petition was
appropriate. Deltakeeper and Section 21167.6.5 The
parties express passionate and disparate views about the trial court's
assessment of the continued viability of Deltakeeper in light of section
21167.6.5. Their arguments obscure the holding of Deltakeeper, which
simply requires recipients of approval to be named, thereby making them
necessary parties as a matter of law, but leaves to the trial court the task of
determining whether the recipient is an indispensable party. In Deltakeeper,
we first found the unnamed parties to be necessary and then performed the
analysis under Code of Civil Procedure section 389, subdivision (b) to
determine whether they were indispensable, requiring dismissal of the action.
In both cases the outcome rested on an application of the factors enumerated in
section 389, subdivision (b) to the facts in each case. Therefore,
we begin by considering whether, under Public Resources Code section
21167.6.5, Coachella and Metropolitan were recipients of approval. If we
find the unnamed parties received approvals, we then consider whether under Code
of Civil Procedure section 389, subdivision (b) Metropolitan and Coachella
qualify as indispensable parties, requiring dismissal of the action. This
approach differs from the position taken by Coachella, which argues that section
21167.6.5 mandates dismissal. Coachella insists that "[b]ecause the
legislative history refers to the persons in section 21167.6.5(a) as
'indispensable parties,' the Legislature already has done the equitable
balancing that otherwise might be done by a court under Code of Civil
Procedure section 389, and has made a blanket determination that the failure
to name 'recipients of an approval' requires dismissal." In
addition, Coachella argues that the structure and purpose of Public
Resources Code section 21167.6.5 supports mandatory dismissal. Section
21167.6.5, subdivision (d) provides that failure to name potential parties,
other than those described in section 21167.6.5, subdivision (a), is not
grounds for dismissal pursuant to section 389 of the Code of Civil Procedure. Therefore, Coachella reasons,
failure to name parties described in section 389, subdivision (a),
recipients of approval, is grounds for dismissal. Finally,
Coachella contends one of the purposes of the statute was to streamline the
adjudication of CEQA cases. As Coachella reasons: " 'Streamlining'
suggests replacing equitable balancing on a case-by-case basis with a simple
bright-line and general joinder rule, i.e., 'recipients of an approval' must be
named under subdivision (a) or the case will be dismissed under subdivision
(d)." We are
not persuaded. Coachella fails to provide a citation to the legislative history
on which it purports to rely. In any event, the purported legislative history
does not lead us to conclude that the Legislature has already performed the
equitable balancing required under Code of Civil Procedure section 389
and determined that dismissal is always mandated when a recipient of an approval
is not named. Nor
does the language of Public Resources Code section 21167.6.5, subdivision
(d) forestall the application of Code of Civil Procedure section 389.
Section 21167.6.5, subdivision (d) states that failure to name potential parties,
except recipients of approval, is not grounds for dismissal pursuant to section
389. It does not state, or imply, that failure to name recipients of
approval mandates dismissal. Instead, section 21167.6.5, subdivision (d)
applies only to parties that do not qualify as recipients of approval under section
21167.6.5, subdivision (a). Subdivision (d) of section 21167.6.5
excludes these nonrecipients from dismissal under section 389. Subdivision
(d) of section 21167.6.5 is silent as to the applicability of section
389 to recipients of approval. Therefore,
Code of Civil Procedure section 389, subdivision (b) is invoked when a
recipient of approval is not named; the factors enumerated in the subdivision
must then be weighed to determine whether dismissal is warranted. Finally, the
mere mention of streamlining as a goal does not lead to the conclusion that Public
Resources Code section 21167.6.5, subdivision (d) creates a
"bright-line" joinder rule, automatically dispensing with section
389, subdivision (b). Recipients of Approval In
finding that Metropolitan and Coachella were "within the class of
transferees that the legislature was seeking to protect as 'recipients of
approval' in section 21167.6.5(a)," the trial court understood that
the two districts had not sought the Board's approval for the water transfer.
Indeed, Metropolitan and Coachella had opposed Imperial's petition to transfer
water to San Diego. They retracted their opposition following execution of the
PDA under which 100,000 afy was made available for their acquisition. However,
the districts insisted that Board approval was unnecessary for Imperial to
reserve 100,000 afy for a later transfer to them and thereafter withdrew from
the proceeding. Nonetheless, the court noted that under the Board's action,
Imperial's permit was modified to expand the place of use to include the
Metropolitan and Coachella service areas, and "this water will flow to
these areas only under the [Imperial] contracts with these entities." 6 6 The Board's order states: "It is hereby
ordered: [¶] Imperial Irrigation District's (permittee) and San Diego County
Water Authority's (SDCWA) petition to transfer conserved water from permittee
to SDCWA and to change the point of diversion, place of use, and purpose of use
under Permit No. 7643 is approved." This order is expressly conditioned on
compliance by Imperial, as the permittee, with the listed conditions of approval.
Much of the County's disagreement with the
trial court's interpretation stems from Coachella and Metropolitan's prior
assertion that no Board approval was required. According to the County,
"[o]nly by egregiously reversing position during respondent Court's
proceedings, and abrogating their contractual duty to deny that [Metropolitan]
and [Coachella] were approval recipients,
did the water district's [sic] induce respondent Court's conclusion that
[Coachella] and [Metropolitan] had received approvals." However,
any analysis of whether a party is a "recipient of an approval" under
the statute rests not with the party's self-labeling or litigation arguments,
but with the words of the statute itself. Regardless of Coachella and
Metropolitan's federal preemption arguments that led them to dispute the
necessity of Board approval for the transfer, we look to their status in the
underlying transaction, focusing on the Board's order and the statute's
language regarding approval recipients as applied within the larger statutory
scheme regulating water transfers. The
County takes the position that neither Metropolitan nor Coachella qualify as
"recipients of approval" under the statute's language. According to
the County, an approval necessarily authorizes its recipient to do something.
The Board's order only authorizes the Imperial and San Diego transfer; it stops
short of approving any similar transfer to Metropolitan and Coachella. Instead,
it gives Imperial permission to engage in water conservation from which the
water districts could potentially benefit. The County concludes: "While
[the order] clearly does approve the proposed [Imperial-San Diego] transfer,
and also approves [Imperial's] ability to conserve and make available water,
the order stops short of approving any similar transfer to [Metropolitan] and
[Coachella]. Instead, it gives [Imperial], and [Imperial] alone, a permissive
approval to make changes under [Imperial's] permit. [Citation.] The purpose of
that change obviously was to allow [Imperial], if it chose, to enter into water
acquisition deals [citation], but nowhere does the [Board] order purport to
actually approve those deals, to give [Metropolitan] and [Coachella] any approval
for steps they might take to prepare for entering those deals, or to compel
[Imperial] to provide [Metropolitan] or [Coachella] with any water. The content
of the order thus was directed at [Imperial] and [San Diego] alone." (Fn.
omitted.) The
County's argument misconstrues the law surrounding water transfers. Water
Code sections 1735 through 1737 govern Board approvals of long-term water
transfers. Water Code section 1736 authorizes the Board, after notice
and an opportunity to be heard, to approve a petition for a long-term transfer
of water after certain conditions are met. Here, the Imperial-San Diego
petition for a long-term transfer was specifically amended to transfer 100,000
afy to Coachella and/or Metropolitan instead of San Diego. This was the
petition approved by the Board. As
Imperial points out, this was the entirety of approval the Board could give.
There was no further Board approval needed under state law to effectuate the
transfers to Metropolitan and Coachella. Only through Board approval can any of the transferees receive
water under Imperial's state water right permit and priority. Under the
long-term transfer statutes, Water Code sections 1735 through 1737,
Imperial could and did petition for a change as to the point of diversion,
place of use, and purpose of use to effectuate the transfer to San Diego, Metropolitan,
and Coachella. Without this Board approval, the other water districts would not
be authorized users of water under
Imperial's water right permit. The
Board's order authorizes a new point of diversion, for San Diego and
Metropolitan, and expands authorized places and purposes of use to include the
areas and uses of San Diego, Coachella, and Metropolitan. The Board's order
states it is being asked to approve changes that would authorize a transfer of
water to Coachella and Metropolitan under Imperial's permit. The Board also
determined that delivery of Imperial's conserved water to Coachella and
Metropolitan was a transfer. The
Board's order unambiguously approves the future transfer of 100,000 afy of
water to Metropolitan and Coachella. Therefore, we agree with the trial court's
assessment that Metropolitan and Coachella are recipients of approval under section
21167.6.5. The
County also labels Metropolitan and Coachella's change in position regarding
the Board's authority to approve the transaction "a stunning
reversal" meriting estoppel. According to the County, Metropolitan and
Coachella stated they would not request Board approval or argue that approval
was necessary for the transfer. They induced the County to rely on this representation
and then promptly reversed course, arguing they had indeed received approvals.
This, the County argues, is a case for judicial estoppel. Courts
apply judicial estoppel when: (1) the same party has taken two positions; (2)
the positions were taken in judicial or quasi-judicial administrative proceedings;
(3) the party was successful in asserting the first position; (4) the two
positions are completely inconsistent; and (5) the first position was not taken
as a result of ignorance, fraud, or mistake. (Hanna v. Los Angeles County
Sheriff's Dept. (2002) 102 Cal.App.4th 887, 896 [125 Cal. Rptr. 2d 686].) Although
Metropolitan and Coachella disputed the need for Board approval of the
transfer, neither party made any representations concerning the applicability
of section 21167.6.5. Neither did either party state that the Board's
order did not constitute an approval of the transfers under Imperial's permit.
We find no prior inconsistent statement inducing reliance giving rise to a
judicial estoppel. Indispensable Parties Since
we find Metropolitan and Coachella recipients of approval, we must next
determine whether the trial court correctly concluded they were also
indispensable parties under Code of Civil Procedure section 389, subdivision
(b). 7 In determining whether a party is
indispensable, we consider the four factors listed in the statute. The standard
of review of a trial court's determination pursuant to section 389,
subdivision (b) is abuse of discretion. The subdivision (b) factors
are not arranged in a hierarchical order, and no factor is determinative or necessarily
more important than another. (County of San Joaquin v. State Water Resources
Control Bd. (1997) 54 Cal.App.4th 1144, 1149, 1153 [63 Cal. Rptr. 2d 277] (County
of San Joaquin).) 7 The County presents fundamentally identical
arguments under both case No. 82 and case No. 876. Accordingly,
we review for an abuse of discretion the trial court's determination that
Coachella and Metropolitan are indispensable parties. The County, at least
implicitly, acknowledges that the trial court evaluated the Code of Civil
Procedure section 389, subdivision (b)
factors. However, the County, in its petition, asks us to reweigh these
discretionary factors to reach a contrary result. The
County analyzes each factor to present a scenario in which the discretionary
factors could be balanced to permit its petition to proceed, but the County has
failed to demonstrate why these factors must be balanced in this manner.
In other words, our review of the County's petition reveals it fails to show
the trial court abused its discretion in interpreting the factors under Code
of Civil Procedure section 389, subdivision (b) to find the petition could
not proceed absent Coachella and Metropolitan. We address the relevant factors.
Prejudicial Judgment We
first consider "to what extent a judgment rendered in the person's absence
might be prejudicial to him or those already parties." (Code Civ.
Proc., § 389, subd. (b)(1).) The trial court found a judgment against
Imperial would prejudice Metropolitan and Coachella because "they would
potentially loose [sic] 100,000 acre-feet per year of water intended for
them--water sufficient to serve at least 200,000 households. They could also
face the secondary impacts of more immediate reduced Colorado River diversions
if the nullification of the [Board's] decision led to an unraveling of the QSA
approach to achieving a 'soft-landing' in bringing California within its Colorado
River compliance." The
County responds that Metropolitan and Coachella "disavowed any interest,
other than that shared by virtually all southern California water users, in the
challenged order when this case was filed, and any interests present were adequately
represented by the existing parties." The County's response overlooks the
language of Code of Civil Procedure section 389, subdivision (b)(1),
which considers the prejudicial impact of a judgment on an unnamed
party. Here, the trial court correctly articulated the possible prejudice: the
loss of 100,000 afy under the transfer agreement and the potential unraveling
of the QSA and the PDA. The
County also argues the court improperly based its indispensable party
determination on circumstances that did not exist until months after the
statute of limitations ran. According to the County, when it filed suit the
agreements referenced in the Board's order had not been finalized. Instead, the
Imperial directors declined to approve the QSA, casting the future of the
individual agreements into doubt. According to the County: "Thus, no party
had a legal commitment to perform, or a legal right to require others to
perform, under any of the agreements, and it was highly uncertain whether
anyone would ever have such a right, or what form the ultimate agreements would
take." Therefore, the trial court inappropriately punished the County by
basing its indispensable party determination on circumstances not in existence
when it filed its suit. Metropolitan
and Coachella point out that Code of Civil Procedure section 389
references the "interests" of the unnamed party, not vested contract
or property rights. We agree. "Where
the plaintiff seeks some type of affirmative relief which, if granted, would
injure or affect the interest of a third person not joined, that third person
is an indispensable party." (Sierra Club, Inc. v. California Coastal
Com. (1979) 95 Cal. App. 3d 495, 501 [157 Cal. Rptr. 190].) California
courts do not require that a party have a vested contractual or property right
at stake in order to be found an
indispensable party. (Save Our Bay, Inc. v. San Diego Unified Port Dist.
(1996) 42 Cal.App.4th 686, 696 [49 Cal. Rptr. 2d 847] (Save Our Bay);
Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal. App. 3d
1180, 1189 [255 Cal. Rptr. 434].) The County's argument that the trial
court based its finding of indispensability on circumstances not yet in
existence, since the agreements were not yet final, is only another way of
arguing that Metropolitan and Coachella did not have vested contract rights at
stake when the County filed suit. In
addition, the trial court is not limited to considering only the circumstances
in existence at the time the suit is filed. Indispensability is determined by
considering the status of the parties at the time relief is to be entered, or
at the time the issue of
indispensability is raised, rather than to their status at the time the suit is
filed. (Kraus v. Willow Park Public Golf Course (1977) 73 Cal. App. 3d 354,
368 [140 Cal. Rptr. 744]; Union Carbide Corp. v. Superior Court (1984)
36 Cal.3d 15, 22 [201 Cal. Rptr. 580, 679 P.2d 14].) Here,
even before the County filed its suit, it had notice that under the proposed
QSA and PDA both Coachella and Metropolitan were potential recipients of
100,000 afy of Imperial's Colorado River water. The Board's public notice also
referenced the transfer. While the QSA and PDA were not yet in their final
forms, the proposed terms clearly and unequivocally contemplated diversion of
Imperial water to Metropolitan and Coachella. The trial court appropriately considered
Metropolitan's and Coachella's interests under the agreements in determining
the issue of indispensability. 8
8 We also reject the County's argument that
Metropolitan and Coachella possessed "just a consequential interest,"
not the requisite legally protected interest necessary for indispensable
status. Lessening of Prejudice Under Code
of Civil Procedure section 389, subdivision (b)(2) the court considers
whether protective provisions in the judgment can ameliorate or eradicate prejudice
to the unnamed parties. The trial court's decision does not address this
factor. Nor
does the County offer any guidance. The County labels the effort of lessening
prejudice "difficult" and argues that since no prejudice will result
to Metropolitan or Coachella, no measures to avoid prejudice are necessary.
However, since the trial court found potential prejudice, the County's silence
as to any fashioning of relief to avoid prejudice supports the trial court's
finding of indispensability. Adequacy of Judgment Under Code
of Civil Procedure section 389, subdivision (b)(3) the court considers
whether a judgment entered in the absence of Metropolitan and Coachella will be
adequate. The trial court noted the variety of interests represented by the
parties and found them divergent, preventing an adequate judgment for the
absent parties. The court noted Imperial is an agricultural water supplier; San
Diego is an urban water retailer. In contrast, Metropolitan is an urban water
wholesaler; Coachella is predominately an agricultural water user. The
County discounts any inadequacy: "Their absence will not deprive
respondent Court of the ability to hear any of the matters raised by the County, will not foreclose any of the
County's requested remedies, and will not create any risk of inconsistent
obligations for [Imperial] and [San Diego]." The test for determining the ability to
protect an absent party's interest is whether existing and absent parties' interests
are sufficiently aligned that the absent party's rights necessarily will not be
affected or impaired by the judgment or proceeding. (Save Our Bay, supra, 42
Cal.App.4th at pp. 697-698.) The County argues that the parties'
oppositions to its petition reflect a unity of purpose in obtaining the same
goal and provide "clear indication of their loyalty to each other and to
the lack of any current divergence of interests." However,
as Coachella points out, a common litigation objective is not enough to establish
adequacy of representation by the named parties. Since predicting how named
parties would conduct litigation requires clairvoyance beyond the trial court's
expertise, courts instead consider the interests of both the named and unnamed
parties. In Deltakeeper we found the named parties could adequately
protect the interests of the unnamed parties. However, in Deltakeeper we
based this finding in part on the existence of the joint litigation agreement.
Under the agreement, the nonjoined parties had the right to participate in and
control the CEQA litigation through collective decisions binding on the named
party. (Deltakeeper, supra, 94 Cal.App.4th at p. 1103.) In addition, in Deltakeeper
the unnamed parties did not dispute that the named parties could adequately
represent their interests. (Ibid.) Metropolitan
and Coachella do not have the benefit of a joint litigation agreement. In
addition, they vociferously argue that the disparate interests of Imperial, San
Diego, and the Board prevent the named parties from representing their
interests. San
Diego argues that neither it nor Imperial can adequately represent the
interests of Coachella or Metropolitan because they are not in agreement on
important issues. San Diego points out that water agencies have no
responsibility to address other agencies' water supply issues or needs. In
addition, if the County is successful in its quest for additional mitigation,
San Diego and Imperial would have an interest in seeing any such mitigation
assigned to the 100,000 afy destined for Metropolitan and Coachella instead of
San Diego's 200,000 afy. The
differing and possibly conflicting interests of the named and unnamed parties
support the trial court's determination that Metropolitan and Coachella were indispensable
parties. Availability of Alternative Remedy Finally,
the court considers whether the plaintiff or cross-complainant will have an
adequate remedy if the action is dismissed for nonjoinder. (Code of Civil
Procedure, § 389, subd. (b)(4).) Here, the trial court found the County
would have the ability to assert its interests in the coordinated proceedings.
The court stated: "Case No. 03CS00083 remains pending before the Court,
and the Court has announced in its case management plan that all parties to all
coordinated cases will be allowed to brief all issues, if they desire." The
County argues the opportunity to submit briefs in another party's case provides
no substitute. According to the County: "That case could settle, and of
course the County would have no opportunity to appeal an adverse judgment. As
the County's CEQA claims were more expansive than those asserted in other
mandamus actions, it cannot assume respondent Court would allow it to brief
issues not otherwise raised. The County should not be relegated to the status
of cheerleader in someone else's game,
when the County has the most at stake." We
rejected a similar argument in County of San Joaquin, supra, 54 Cal.App.4th
1144. There the plaintiff water users failed to name the United States
Bureau of Reclamation in an action challenging restrictions imposed under new
federal standards for water quality. The trial court found a pending federal action,
which involved some of the same issues, provided an adequate remedy. (Id. at
p. 1150.) On
appeal, the plaintiffs argued they lacked an alternative forum because they
could not bring precisely the same claims in federal court. (County of San
Joaquin, supra, 54 Cal.App.4th at pp. 1154-1155, fn. 7.) We noted:
"This is not the standard. As the trial court's ruling acknowledges,
appellants cannot bring all of the same claims in the federal case. However,
the standard is whether appellants have an 'adequate remedy,' not whether all
issues are identical." (Ibid.) We found the federal case sought the
same general type of relief sought in the instant case. (Ibid.) We
affirmed the trial court's dismissal of the action based on failure to name an
indispensable party. (Id. at p. 1157.) In
addition to participating in other CEQA challenges to the EIR, the County has
also answered Imperial's validation action, providing the County an alternative
means for asserting its CEQA claims against the project. The County has
asserted Imperial's failure to comply with CEQA as a defense to Imperial's
pending validation action. The County claims the validation action provides a
poor alternative, since validation cases "often become extraordinarily
complex and time-consuming affairs." The
County's complaints regarding delay in the validation action may be valid, but
they do not provide a basis for finding that the trial court abused its
discretion in finding an adequate remedy if the County is dismissed. This case
differs markedly from the situation we encountered in Deltakeeper, where
dismissal of the action would have deprived the plaintiffs of any remedy. In Deltakeeper,
the adequacy of the EIR would have escaped any judicial scrutiny, and we
reasoned such a harsh result was unnecessary when the unnamed parties shared a
unity of interest in the CEQA litigation. (Deltakeeper, supra, 94
Cal.App.4th at p. 1109.) Here, in contrast, no such unity of interest
exists among the parties, and the County can mount a CEQA challenge in the
coordinated case and in its opposition to Imperial's validation action. Under
these circumstances, and based on the record before us, we cannot find the
trial court abused its discretion in applying the Code of Civil Procedure,
section 389, subdivision (b) factors and dismissing the action. Equity The
County argues that dismissal of case No. 876 and case No. 82 is fundamentally
inequitable, since it will deprive the County of "the opportunity to
prosecute its case against environmental review of and mitigation for the agreement
to implement the largest water transfer in American history, simply because it
reasonably named only the contracting parties." We acknowledge that section
389 of the Code of Civil Procedure should not be converted from a rule of
fairness into an arbitrary and burdensome requirement that may thwart rather
than accomplish justice. (Deltakeeper, supra, 94 Cal.App.4th at p. 1109.) However, here the unnamed parties cannot be adequately
represented by the named parties, and the County has other forums in which to
challenge the adequacy of the EIR. Code of Civil Procedure section 389,
subdivision (b) requires a balancing of equities to determine whether the
action should proceed in the absence of necessary parties. The trial court
carefully balanced the various factors and determined, on balance, that equity
was best served by dismissing the action for failure to name Coachella and
Metropolitan. Such a determination is never easy, but we find the trial court's
application of the factors both fair and well within its discretion. DISPOSITION The
petition for a writ of mandate is denied. The parties shall bear their own
costs in this original proceeding. Nicholson,
Acting P. J., and Robie, J., concurred. 
This file last modified on: Friday, February 8, 2008.Document URL: http://ceres.ca.gov/ceqa/cases/2007/County_of_Imperial_v._Superior_Court.htm Copyright © 1998-2003 California Resources Agency. All rights reserved. |