In re Dam

96 Cal.App.5th 173

314 Cal.Rptr.3d 247

OROVILLE DAM CASES

C093600

Court of Appeal, Third District, California.

Filed October 5, 2023

Porter Scott, Chad S. Tapp, Thomas L. Riordan, Sacramento, and Michael L. Ramsey, Oroville, for Plaintiff and Appellant.

Rob Bonta, Attorney General, Jeff Vincent, Senior Assistant Attorney General, Bruce D. McGagin and Scott H. Cavanaugh, Deputy Attorneys General, for Defendant and Respondent.

RENNER, J.

This case arises out of the Department of Water Resources's (DWR) release of water from Lake Oroville down the Oroville Dam's gated flood control spillway and emergency spillway in February 2017. The Butte County District Attorney brought this action under Fish and Game Code section 5650.1¹ on behalf of the People seeking civil penalties and injunctive relief against DWR.² The statute authorizes civil penalties against any "person" who has deposited harmful materials into the waters of this state. The statute also authorizes injunctive relief. The trial court granted summary judgment for DWR on the basis that it had demonstrated the complaint failed to state a cause of action. In particular, the trial court held DWR is not a "person" under section 5650.1.

On appeal, the People contend the trial court erred in granting DWR's motion because DWR is a "person" under section 5650.1. Alternatively, the People argue that, even if DWR is not a "person" under this provision, DWR did not negate the People's cause of action with respect to injunctive relief. We disagree and affirm the judgment.

I. BACKGROUND

In February 2018, the Butte County District Attorney filed a "Complaint for Civil Penalties" against DWR.³

The complaint alleges DWR is responsible for the operation, maintenance, and regulation of the Oroville Dam, including the gated flood control spillway and the emergency spillway. Further, DWR has used, operated, and maintained the Oroville Dam since its construction began in 1961.

The complaint alleges a single cause of action for a violation of section 5650. This statute states, in relevant part, that "it is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this state any of the following: [¶] ... [¶] (6) Any substance or material deleterious to fish, plant life, mammals, or bird life." The complaint alleges that between February 7 and February 27, 2017, DWR "released water from Lake Oroville down the Oroville Dam's gated flood control spillway causing a large area of the concrete spillway and nearby hillside to erode thereby depositing in and placing where it could pass into the waters of the State of California, to wit: the Feather River, concrete, lime, slag and substances and material deleterious to fish, plant life, mammals and bird life." The complaint makes similar allegations with respect to the emergency spillway: "From February 11, 2017 to February 12, 2017, [DWR] permitted water to pass over the Oroville Dam's emergency spillway causing the hillside beneath the emergency spillway to erode thereby depositing in and placing where it could pass into ... the Feather River, concrete, lime, slag and substances and material deleterious to fish, plant life, mammals and bird life."

The complaint alleges DWR's release of water down the gated flood control spillway and emergency spillway caused an estimated 1,700,000 cubic yards of material deleterious to fish, plant life, mammals, and bird life to pass into the Feather River. The complaint alleges this debris included concrete and soil, and weighed between 3,400,000,000 and 5,100,000,000 pounds. The complaint seeks civil penalties under section 5650.1. Additionally, the prayer for relief asks for a permanent injunction requiring DWR to comply with section 5650 et seq.

In September 2020, DWR moved for summary judgment on four grounds: (1) DWR is not a "person" under section 5650.1 such that it could be liable for civil penalties; (2) sovereign immunity bars application of sections 5650 and 5650.1 against DWR; (3) injunctive relief is inappropriate and unwarranted as a matter of law; and (4) the People's claims for compensatory damages and restitution are inadequately pled and cannot be amended because the People failed to satisfy the claim presentation requirements of the Government Claims Act ( Gov. Code, § 810 et seq. ).

In response, the People argued: (1) DWR is a "person" under section 5650.1 ; (2) public policy supports the assessment of civil penalties against DWR; (3) civil penalties do not implicate constitutional separation of powers principles; and (4) sovereign immunity has no application. The People offered no response to DWR's assertion that injunctive relief was inappropriate and unwarranted. The People also did not dispute any of DWR's asserted facts. Those facts were as follows:

The "Oroville facilities," also known as Federal Energy Regulatory Commission (FERC) Project No. 2100, are located on the Feather River in Butte County. The principal features of the Oroville facilities include the Oroville Dam, the gated main and ungated emergency spillways, the reservoir, the Thermalito facilities, the Feather River fish hatchery, and associated recreational, fish, and wildlife preservation and enhancement facilities. In 1957, FERC issued DWR a 50-year license to construct and operate the Oroville facilities. In 1964, FERC issued an amended license that includes the following term:

"Article 46. The Licensee shall prevent damage to fish and wildlife resulting from construction or operation of the project. Special precautions shall be taken to: (a) prevent discharge of silt, petroleum products, and other harmful substances or debris into the Feather River, (b) prevent loss, removal, disturbance, and compaction or shifting of gravel of the Feather River channel downstream from Thermalito diversion dam except as may be appropriate for protection or the improvement of fish habitat, and (c) prevent the project borrow areas from becoming sources of silt or other fines during floods or serving to dissipate stream maintenance flows or serving to trap anadromous fish."

The original license expired on January 31, 2007. FERC authorized continued operations on February 1, 2007. The Oroville facilities currently operate under the February 1, 2007 annual license that automatically renews each year until a new license is issued. None of the extensions modified Article 46.

After the February 2017 emergency event, FERC issued a "Draft Environmental Assessment: Amendment of Project License to Reconstruct the Lake Oroville Main Spillway, Modify the Emergency Spillway, and to Relocate a Project Transmission Line." In this draft environmental assessment, FERC recommends DWR "prepare and file a Sedimentation and Erosion Assessment and Mitigation Plan," which should include "a broad assessment of effects to soil resources, riparian habitat, and the streambed in the lower Feather River." "If the analysis identifies any significantly degraded areas of mass soil wasting from flow reductions or identifies any areas of significant sediment deposition from the spillway failure," FERC advises DWR to "include details in its plan for directly or indirectly mitigating those effects" in consultation with state and federal fish and wildlife agencies. When DWR filed its motion for summary judgment, it was proactively addressing issues raised in the draft environmental assessment. DWR's staff had begun to comply with the draft environmental assessment by developing and submitting to FERC plans for rehabilitation including soil rehabilitation and additional site stabilization and planting. DWR was coordinating the restoration plan with the Department of Fish and Wildlife. DWR was also working on a biological opinion to address anadromous fish with the National Marine Fisheries Service.

The trial court asked for supplemental briefing regarding whether flood waters carrying debris or causing erosion could form the basis for a violation of section 5650. Ultimately, the trial court granted summary judgment without addressing its supplemental questions.⁴ It explained that DWR's motion, in effect, asserts that the complaint does not state a cognizable claim.

The trial court held DWR is not a "person" within the scope of section 5650.1. Therefore, the complaint failed to state a claim.

The trial court entered judgment in favor of DWR in January 2021, and the People filed a timely appeal.⁵

II. DISCUSSION

A. Standard of Review

A motion for summary judgment must be granted where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. ( Code Civ. Proc., § 437c, subd. (c).)

The primary issue raised by the People in this appeal is whether DWR is a "person" within the scope of section 5650.1. We review the trial court's ruling on summary judgment and the underlying statutory construction issue de novo. ( Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531, 85 Cal.Rptr.2d 257, 976 P.2d 808.) As the trial court explained, "[a] motion for summary judgment necessarily tests the pleadings, and where there is a failure to state a cause of action, or ... the action is barred on the face of the complaint, the motion is tantamount to a motion for judgment on the pleadings." ( Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1276, fn. 25, 45 Cal.Rptr.3d 222.)⁶ In granting DWR's motion, the trial court stated, "in form, the motion for summary judgment here is treated as a motion for judgment on the pleadings." However, we are not limited by the trial court's reasoning. "We determine whether the court's ruling was correct, not its reasons or rationale." ( Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 913, 291 Cal.Rptr.3d 822.) Furthermore, because, for the first time on appeal, the People contest the entry of judgment based on their request for injunctive relief, and DWR submitted evidence related to this request, we will not treat...