St. Water Bd. Cases

316 Cal.Rptr.3d 170

97 Cal.App.5th 1035

STATE WATER BOARD CASES

C096511

Court of Appeal, Third District.

Filed November 17, 2023

APPEAL from a judgment of the Superior Court of Sacramento County, Stacy E. Boulware Eurie, Judge. Affirmed. (JCCP No. 5013)

Paris Kincaid Wasiewski, William C. Paris III, Chico, Valerie C. Kincaid, Timothy J. Wasiewski and Jonathan R. Marz, Sacramento, for Movant and Appellant.

Rob Bonta, Attorney General, Annadel A. Almendras, Michael P. Cayaban, Lindsay N. Walter, Mark W. Poole, Tamara T. Zakim and Dylan K. Johnson, Deputy Attorneys General, for Defendant and Respondent.

EARL, P. J.

In December 2018, respondent State Water Resources Control Board (the Board) adopted amendments to the water quality control plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (the Bay-Delta Plan) and certified a substitute environmental document (SED) supporting the amendments. No fewer than 13 separate lawsuits were filed against the Board challenging its adoption of the amendments and the SED on various grounds. Appellant — the San Joaquin Tributaries Authority, or SJTA — filed one of those 13 lawsuits. The lawsuits were filed in six different counties. At the request of the Board, the lawsuits were coordinated in Sacramento County as State Water Board Cases, Judicial Council Coordination Proceeding No. 5013 (hereafter the coordination proceeding), and this court was designated as the court having appellate jurisdiction.

SJTA thereafter filed a motion to intervene in all of the cases that were part of the coordination proceeding. The trial court denied the motion, SJTA appeals, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2018, the Board adopted amendments to the Bay-Delta Plan (which are hereafter referred to as the Plan Amendments) and certified the SED. Among other things, the Plan Amendments include new "flow objectives" for the lower San Joaquin River to protect fish and wildlife beneficial uses.¹ The new flow objectives are to "[m]aintain inflow conditions from the San Joaquin River water-shed to the Delta at Vernalis sufficient to support and maintain the natural production of viable native San Joaquin River watershed fish populations migrating through the Delta." Numerically, the objectives are to "[m]aintain 40% of unimpaired flow, with an allowed adaptive range between 30% - 50%, inclusive, from each of the Stanislaus, Tuolumne, and Merced Rivers from February through June." "Unimpaired flow represents the natural water production of a river basin, unaltered by upstream diversions, storage, or by export or import of water to or from other watersheds."

As the Board recognized in the SED, "The use of a percent of unimpaired flow assigns an explicit percent of unimpaired flow to fish and wildlife, with the remaining percent of unimpaired flow available for other uses…. For example, if the flow requirement is 40 percent of unimpaired flow from February through June, the remaining 60 percent is available for all other uses." Thus, under the new flow objectives, 40 percent of the unimpaired flow of the Stanislaus, Tuolumne and Merced Rivers will remain in the rivers to support and maintain native fish populations, leaving the remaining 60 percent available for other uses. The Board also recognized, "The primary effect of the flow proposal is that it would decrease the quantity of surface water available for diversion for other uses compared to the current condition." (Italics added.)

The Board estimated that implementation of the flow objectives will reduce surface water available for other uses by anywhere from 7 to 23 percent. It also noted that "[t]his reduction in availability of surface water could affect water users who obtain their water from … anywhere within the Stanislaus, Tuolumne, and Merced River Watersheds," including, in particular, the South San Joaquin Irrigation District, the Turlock Irrigation District, and the City and County of San Francisco.

SJTA is a joint powers authority comprised of, among others, the South San Joaquin Irrigation District, the Turlock Irrigation District, and the City and County of San Francisco, all of whom hold water rights on the Tuolumne or Stanislaus Rivers. They fear that implementing the flow objectives will decrease the quantity of water available for their use.

The Plan Amendments do not actually implement the flow objectives. They explain, "Most of the objectives in this ongoing plan are being, and will continue to be, implemented by assigning responsibilities to water right holders because the parameters to be controlled are primarily impacted by flows and diversions. This plan, however, is not to be construed as establishing the responsibilities of water right holders. Nor is this plan to be construed as establishing the quantities of water that any particular water right holder or group of water right holders may be required to release or forego to meet the objectives in this plan. The State Water Board will consider, in a future water rights proceeding or proceedings, the nature and extent of water right holders’ responsibilities to meet these objectives."

Two of the 13 cases challenging the Plan Amendments and SED have since been dismissed, leaving 11 coordinated cases. All petitioners seek a writ of mandate ordering the Board to vacate, rescind and set aside its approval and adoption of the Plan Amendments and the SED.² However, not all petitioners agree on why the Plan Amendments must be vacated. To give one example, some petitioners contend the flow objectives are too low, and more water should be allocated to fish; and some, including SJTA, contend the flow objectives are too high and less water should be allocated to fish.

In June 2021, SJTA filed a motion to intervene in all of the coordinated cases (except for its own), along with a proposed complaint in intervention that was substantively identical to its original petition and complaint.³ SJTA argued it had a right to intervene because it had an interest relating to the transaction that is the subject of the consolidated cases, disposition of those cases could impair its ability to protect its interests, and its interests were not adequately represented by existing parties. Alternatively, SJTA argued it should be permitted to intervene because it had a direct and immediate interest in the other cases, intervention would not enlarge the issues, and its reasons for intervention out-weighed any opposition thereto. The Board opposed the motion.⁴

The trial court denied the motion, finding SJTA had no right to intervene because it failed to show it had an interest in the Board’s adoption of the Plan Amend- ments. The trial court also declined to give SJTA permission to intervene, finding intervention was "unnecessary and redundant" because its proposed complaint in intervention simply duplicated claims it already raised in its own petition. The denial of permissive intervention was "without prejudice," and the trial court noted SJTA could seek permissive intervention at a later date "should previously unforeseen circumstances supporting intervention become known."

SJTA filed a timely appeal challenging the trial court’s order. (See Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal. App.4th 540, 547, 30 Cal.Rptr.3d 303 ["An order denying a motion for leave to intervene is directly appealable because it finally and adversely determines the moving party’s right to proceed in the action"].)

The trial court did one more thing that is potentially relevant to this appeal: it allowed all petitioners to brief and argue the merits of all claims and issues raised by any of the pleadings in the coordinated cases. In particular, it allowed each petitioner to file both (1) a 50-page opening brief on the merits of its petition, and (2) a 20-page brief responding to any issues addressed in the opening briefs of the other petitioners that were not pled in its petition and thus not addressed in its opening brief. For example, if San Francisco Bay-keepers et al. addressed an issue in its opening brief that SJTA did not plead or address in its opening brief, SJTA could file a response to that issue. There was one exception. SJTA’s petition asserted several California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) causes of action, but those causes of action were dismissed for failure to comply with Public Resources Code section 21167.4, subdivision (a), which provides, "In any action or proceeding alleging non-compliance with [CEQA], the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding." Because SJTA’s CEQA causes of action were dismissed, the trial court ruled it was not permitted to address CEQA issues either in its own opening brief, or in its brief responding to issues raised in other petitioners’ opening briefs.

DISCUSSION

I Relevant Law

Intervention is governed by Code of Civil Procedure section 387.⁵ There are two types of intervention: mandatory intervention (sometimes called intervention as of right) and permissive intervention. (§ 387, subd. (d).) Mandatory intervention is governed by section 387, subdivision (d)(1), which provides, in relevant part, "The court shall, upon timely application,⁶ permit a nonparty to intervene in the action or proceeding if …. [¶] … [¶] (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties." Permissive intervention is governed by section 387, subdivision (d)(2), which provides, "The court may, upon timely application, permit a nonparty to...