In re Dep't of Water Res. Cases

69 Cal.App.5th 265

284 Cal.Rptr.3d 327

DEPARTMENT OF WATER RESOURCES CASES.

C092087

Court of Appeal, Third District, California.

Filed September 23, 2021

Certified for Partial Publication.^*

Lisa A. Travis, County Counsel, William C. Burke, Deputy County Counsel for Plaintiff and Appellant County of Sacramento.

Rob Bonta, Attorney General, Danielle F. O'Bannon, Senior Assistant Attorney General, Bruce D. McGagin, Supervising Deputy Attorney General, Christine E. Garske, Deputy Attorney General for Defendant and Respondent Department of Water Resources.

Duarte, J. Plaintiff and appellant County of Sacramento (County) appeals from the trial court's grant of summary judgment in favor of defendant and respondent Department of Water Resources (DWR).

In 2019, the County filed a complaint for injunctive relief alleging that DWR failed to obtain county permits before conducting geotechnical exploration activities related to a state water infrastructure project in the Delta region of Sacramento County. The County noted that its ordinance required all persons, including the state, to obtain county permits before conducting activities including drilling exploratory holes and borings. The County contended that it adopted its ordinance pursuant to division 7, chapter 10 of the Water Code,¹ and the Legislature had expressly waived the state's sovereign immunity with respect to the chapter's provisions. (§§ 13050, subd. (c); 13755.)

DWR moved for summary judgment. It asserted that, as a state agency acting within its governmental capacity, it is immune from local regulations except where the Legislature expressly waived that immunity. DWR further contended that its activities did not fall within the scope of chapter 10, which is a limited statute governing "wells," "water wells," "cathodic protection wells," and "geothermal heat exchange wells" as those terms are defined in the chapter. ( §§ 13710 - 13713.) The trial court granted the motion, concluding DWR's exploration activities did not fall within the scope of chapter 10, and the County was not authorized to expand its regulatory authority over the state beyond that which was expressly authorized by the Legislature.

The County challenges the trial court's ruling. It contends the scope of the Legislature's waiver of sovereign immunity extends beyond activities expressly defined in chapter 10 to include activities governed by an administrative bulletin establishing drilling and boring standards that the Legislature referenced in chapter 10. ( § 13801, subd. (c).) Alternatively, the County argues that various statements made by DWR created a triable issue of fact as to whether DWR's exploration activities fall within the scope of activities expressly defined by chapter 10. Finally, the County challenges multiple evidentiary rulings made by the trial court.

In the published portion of our opinion, we conclude the scope of the Legislature's waiver of the state's immunity extended only to the activities expressly defined in chapter 10. In the unpublished portion of our opinion, we agree with DWR that the County failed to establish a genuine dispute of material fact as to whether DWR's exploration activities fall within the scope of chapter 10 as we construe it, and also conclude that the County has failed to demonstrate prejudice from the trial court's evidentiary rulings, even if we were to assume error. Accordingly, we affirm the judgment.

FACTS AND PROCEEDINGS

The following facts are taken from the evidence set forth in the papers filed in connection with the summary judgment motion, except that to which objections were properly made and sustained. ( Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037, 32 Cal.Rptr.3d 436, 116 P.3d 1123.) We summarize the evidence in the light most favorable to the County, the party opposing summary judgment, resolving any doubts concerning the evidence in its favor. ( Ibid. ) We also provide some relevant background facts from our Supreme Court's decision in Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 204 Cal.Rptr.3d 770, 375 P.3d 887 ( Property Reserve ).

"In an effort to improve the reliability of the water supply system in California as well as to address environmental and ecological concerns, [DWR] undertook to investigate the feasibility of constructing a new tunnel or canal in the Sacramento-San Joaquin Delta as a means of delivering fresh water from Northern California to Central and Southern California. As part of the preliminary steps in going forward with the project, [DWR] sought to conduct environmental and geological studies and testing on more than 150 privately owned parcels of land that the state, in the future, might seek to acquire for the project through negotiation or eminent domain." ( Property Reserve, supra , 1 Cal.5th at pp. 165-166, 204 Cal.Rptr.3d 770, 375 P.3d 887.) "The proposed new [water conveyance] facilities would become part of the Bay Delta Conservation Plan and are intended to improve the reliability of the water supply statewide as well as to restore the Delta ecosystem and native fish populations." ( Id. at p. 168, 204 Cal.Rptr.3d 770, 375 P.3d 887.)

"Because the alternative potential locations for the new facilities cross or lie beneath privately owned lands, [DWR] sought to enter the private properties in question to ascertain preliminary environmental and geological information about the properties." ( Property Reserve, supra , 1 Cal.5th at p. 168, 204 Cal.Rptr.3d 770, 375 P.3d 887.) "Between 2008 and 2009, [DWR] filed more than 150 separate petitions in superior court ... seeking entry onto properties located in five separate counties—San Joaquin, Contra Costa, Solano, Yolo, and Sacramento. In June 2009, [DWR] filed a request to coordinate in a single proceeding the numerous entry petitions ..., and in March 2010, the superior court granted the request, coordinating the petitions in a single proceeding before the San Joaquin County Superior Court." ( Id. at pp. 168-169, 204 Cal.Rptr.3d 770, 375 P.3d 887.) DWR filed a petition seeking to conduct " ‘environmental activities’ " and " ‘geological activities’ " with respect to 35 properties, including "drilling deep holes or borings to determine subsoil conditions." ( Id. at p. 169, 204 Cal.Rptr.3d 770, 375 P.3d 887.)

In 2010, DWR published a Mitigated Negative Declaration and Initial Study (IS/MND), describing DWR's plans to conduct further geotechnical information gathering.² The IS/MND stated that DWR's work "includes overwater and land geotechnical borings, cone penetration tests (CPTs) and small test pits in order to investigate soils in the Sacramento-San Joaquin Delta between 2010 and 2012." It asserted the activities "would provide soils data and groundwater conditions," that the project "requires Delta soils and groundwater information," and that the project requires drilling boreholes and performing CPTs to measure "location of the groundwater table" and allow estimation of "groundwater conditions." The IS/MND also provided, "[t]emporary test wells may be installed at some sites to investigate soil permeability and to allow sampling of dissolved gases in the groundwater," "[s]ite investigation activities may consist of ... temporary well installation," and "[s]elect geotechnical drill holes may be completed as groundwater monitoring wells."

Property Reserve and Entry Order

In 2011, the trial court held a hearing during which DWR employees explained the need for and scope of the geological activities. ( Property Reserve, supra , 1 Cal.5th at p. 171, 204 Cal.Rptr.3d 770, 375 P.3d 887.) After determining optimal drilling sites, DWR would conduct " ‘cone penetrometer testing’ " on each property, which "involves pushing into the ground a long rod that emits signals to determine the subsurface composition of the tested land." ( Ibid. ) On 28 of the 35 properties, DWR geologists indicated that they would also need to "drill additional, larger ‘soil borings’ or ‘drill holes.’ " ( Id. at p. 172, 204 Cal.Rptr.3d 770, 375 P.3d 887.)

The trial court denied DWR's petition as it related to its proposed geological activities, which denial was affirmed by a divided panel of this court but reversed by our Supreme Court in July 2016. ( Property Reserve, supra , 1 Cal.5th at pp. 173, 213, 204 Cal.Rptr.3d 770, 375 P.3d 887.)

In June 2017, the trial court authorized DWR to enter certain properties in Sacramento County for the purpose of conducting "Geological and Drilling Activities" (entry order). The entry order stated that the court "has determined the nature and scope of the activities reasonably necessary to accomplish the purposes identified, taking due consideration of constitutional and statutory requirements. The court has provided suitable limitations to strike the best possible balance between the needs of [DWR] and the interests of the property owners." The court concluded DWR "may conduct the studies" as follows: "Geological activities ... will include one or more of the following: borings with auger and/or mud rotary drill, soils sampling using a Standard Penetrometer test (SPT) barrel and Shelby tubes, Cone Penetrometer test[ ] (CPT), and geophysical borings and surveys to obtain, study and examine soil and groundwater samples and to determine groundwater depth." In June 2019, the County became aware that DWR intended to begin conducting geotechnical explorations on certain private properties located in the Delta portion of Sacramento County and issued a stop work order.

Addendum

In 2019, DWR published an addendum to the IS/MND, which noted that DWR had acquired access to additional properties and anticipated undertaking 19 land explorations, including boreholes and CPTs, of locations analyzed in the IS/MND. The addendum recognized the activities described in the IS/MND "included overwater and land geotechnical borings, cone penetration tests (CPT[s]), temporary test wells (i.e. piezometers), and small test pits to investigate soils...