County of Mono v. City of L.A.

Filed 6/30/22; certified for publication 7/26/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
COUNTY OF MONO et al.,
Plaintiffs and
Respondents, A162590
v.
(Alameda County
CITY OF LOS ANGELES et al., Super. Ct. No.
Defendants and RG18923377)
Appellants;
DEPARTMENT OF FISH AND
WILDLIFE,
Real Party in Interest.
The City of Los Angeles, Los Angeles Department of Water
and Power (LADWP), and Los Angeles Department of Water and
Power Board of Commissioners (collectively, Los Angeles) appeal
from the trial court’s judgment granting the petition of Mono
County and the Sierra Club (collectively, Mono County) for a writ
of mandate directing Los Angeles to comply with the California
Environmental Quality Act (Pub. Resources Code1, § 21000 et
Undesignated statutory citations are to the Public
1
Resources Code.
1
seq.) (CEQA) before curtailing or reducing deliveries of irrigation
water to certain lands Los Angeles leases to agricultural
operators in Mono County. The trial court ruled that Los Angeles
implemented a project in 2018 without complying with CEQA
when (1) it proposed new leases to the lessees that, unlike the
prior leases, would not provide or allow water to be used for
irrigation, and (2) while claiming it would study the
environmental effects of the new leases, it nonetheless
implemented that policy of reducing water for irrigation by
allocating less water than usual under the prior leases that were
still in effect.
Los Angeles does not dispute that it is required to engage
in CEQA analysis before implementing the new proposed leases,
and it notes that it has issued a notice that it is undertaking
environmental review of those new leases. But it argues that its
2018 water allocation was not part of that project and instead
part of an earlier project, and the limitations period for
challenging the earlier project has run. We agree with Los
Angeles, so we will reverse the judgment.
BACKGROUND
I. 2020 Leases
The history of how Los Angeles secured the rights to water
from Mono and Inyo Counties in the eastern Sierra Nevada
mountains and exported it via aqueduct is well documented in
prior decisions, and we need not repeat it here. (See County of
Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1, 3–4.) We
pick up the story in 2010, when Los Angeles approved a set of
2
substantively identical leases (2010 Leases) governing about
6,100 acres of land Los Angeles owns in Mono County. Los
Angeles deemed the approval of the leases to be categorically
exempt from CEQA review because they involved the use of
existing structures or facilities with no or negligible expansion of
use. (Los Angeles Guidelines for the Implementation of the
California Environmental Quality Act of 1970, art. III, Class 1,
¶14; Cal. Code of Regs., tit. 14, § 15301.)2
The 2010 Leases include various provisions concerning
water. In one section devoted to water supply, the leases state
that they are “given upon and subject to the paramount rights of
[Los Angeles] with respect to all water and water rights” and that
Los Angeles reserves “all water and water rights . . . together
with the right to develop, take, transport, control, regulate, and
use all such water and water rights.” The 2010 Leases further
provide, “The availability of water for use in connection with the
premises leased herein . . . is conditioned upon the quantity in
supply at any given time. . . . The amount and availability of
water, if any, shall at all times be determined solely by [Los
Angeles]. The availability of water is further dependent upon
2 Any citations to California Code of Regulations, title 14,
sections 15000 to 15387 will be referred to and cited as “CEQA
Guidelines.” “ ‘The CEQA Guidelines, promulgated by the state’s
Resources Agency, are authorized by Public Resources Code
section 21083. In interpreting CEQA, we accord the Guidelines
great weight except where they are clearly unauthorized or
erroneous.’ ” (Save Tara v. City of West Hollywood (2008)
45 Cal.4th 116, 128, fn. 7.)
3
[Los Angeles’] continued rights and ability to pump”
groundwater.
In a separate subsection in the water supply section, the
2010 Leases state, “Lessee further acknowledges and agrees that
pursuant to Section 220(3) of the City of Los Angeles City
Charter, any supply of water to the leased premises by [Los
Angeles] is subject to the paramount right of [Los Angeles] at any
time to discontinue the same in whole or in part and to take or
hold or distribute such water for the use of [Los Angeles] and its
inhabitants. Lessee further acknowledges and agrees that there
shall be no claim upon [Los Angeles] whatsoever because of any
exercise of the rights acknowledged under this subsection.”
The 2010 Leases divide the leased acreage into irrigated
and dry acre categories, with the lessees paying more for
irrigated acres. In the section devoted to irrigation water, the
2010 Leases state that “water supplies to all land classified for
irrigation (alfalfa and pasture) will be delivered in an amount not
to exceed five (5) acre-feet per acre per irrigation season, subject
to conditions stated in” the preceding water supplies section. The
irrigation water section goes on to state, “The water supply for a
specific lease is highly dependent upon water availability and
weather conditions; due to this, delivery of irrigation water may
be reduced in dry years.” The 2010 Leases allow for a
readjustment of rent if Los Angeles makes a “dry finding,”
meaning a determination that it is necessary to reclassify the
leased property by type or acreage.
4
The 2010 Leases make the lessees responsible for
implementing certain land management plans Los Angeles
developed pursuant to a memorandum of understanding between
Los Angeles and various counterparties. That memorandum
states, “While providing for the primary purpose for which Los
Angeles owns the lands, including the protection of water
resources utilized by the citizens of Los Angeles, the plans will
also provide for the continuation of sustainable uses (including
recreation, livestock grazing, agriculture, and other activities)
[that] will promote biodiversity and a healthy ecosystem, and will
consider the enhancement of Threatened and Endangered
Species habitats.”
The 2010 Leases’ initial term ran from January 2009 to the
end of 2013, but the leases allow the lessees to hold over as
tenants at will after the expiration of the initial term, and Los
Angeles and the lessees have proceeded under the 2010 Leases in
this holdover status since 2013.
Los Angeles’ provision of irrigation water in each of the
years governed by the 2010 Leases was as follows:
Runoff Year Runoff Percent Acre-feet
of Normal (AF)/acre
2009–2010 79 4.3
2010–2011 104 4.3
2011–2012 142 5.4
2012–2013 58 2.2
2013–2014 55 2.4
2014–2015 53 1.5
5
2015–2016 48 0
2016–2017 82 0.7
2017–2018 202 5.0
In 2015 and 2016, when anticipated runoff was 48 percent
and 82 percent of normal, respectively, Mono County sent letters
to Los Angeles objecting to Los Angeles’ stated intent to provide
the lessees less than 5 AF/acre of irrigation water. Mono County
asked Los Angeles to provide between 2 and 3 AF/acre of water,
to avoid economic losses to the lessees and damage to the
environment of Mono County, including a distinct bi-state
population of greater sage grouse that lived in the area.
II. Dry Leases Proposal and 2018 Water Allocation
At the beginning of March 2018, Los Angeles sent the
lessees copies of a proposed new form of leases (Proposed Dry
Leases). The Proposed Dry Leases were to be for a five-year
period running from January 2018 to the end of 2022, renewable
for up to three additional five-year periods. As to irrigation
water, which the Proposed Dry Leases defined as water applied
to increase forage production, the Proposed Dry Leases stated
that Los Angeles “shall not furnish irrigation water to Lessee or
the leased premises, and Lessee shall not use water supplied to
the leased premises as irrigation water.” The Proposed Dry
Leases then stated that from time to time, based on Los Angeles’
“operational needs,” it might spread or instruct the lessees to
spread excess water on the leased properties. The Proposed Dry
Leases, like the 2010 Leases, stated that any water spreading
6
would be “subject to the paramount right of [Los Angeles] at any
time to discontinue the same in whole or in part and to take or
hold or distribute such water for the use of [Los Angeles] and its
inhabitants. Lessee further acknowledges and agrees that there
shall be no claim upon [Los Angeles] whatsoever because of any
exercise of” such rights.
In the cover letter accompanying the Proposed Dry Leases,
Los Angeles stated that the lessees would be invited to attend a
meeting in the first half of March at which the lessees could
comment and ask questions about the changes embodied in the
Proposed Dry Leases. On April 12, 2018, Los Angeles sent letters
to the lessees informing them that it was “performing an
Environmental evaluation” of the Proposed Dry Leases and the
2010 Leases would be in holdover status until the evaluation was
complete and the Proposed Dry Leases took effect. Los Angeles
further stated that it would be spreading water on the leased
properties based on its operational needs and would determine
the amount of water available for spreading based on the latest
snow surveys and anticipated runoff in the eastern Sierras.
On April 19, 2018, Mono County wrote to the mayor of Los
Angeles asking for reassurance that the lessees would receive
sufficient irrigation water that season, which would start on May
1, 2018. Mono County acknowledged that Los Angeles had
relaxed its pressure on lessees to execute the Proposed Dry
Leases until the environmental impacts were analyzed, but it
raised economic and environmental concerns about the proposal,
including concerns about the sage grouse.
7
The mayor responded with a letter on May 1, 2018, in
which he stated, “Changing environmental circumstances,
including the most recent five-year drought, [require] us to
reevaluate our current water uses, including the water
historically provided to eastern Sierra ranches. Over the next six
months, LADWP will analyze the potential environmental
impacts of reducing water on leased ranch land in Mono County
and will discuss the findings with you and the ranchers before
any new lease language is proposed.” The letter continued, “In
the interim, I have directed staff to inform you this week of the
amount of water available for operational spreading to the
lessees this year based on snowpack and anticipated runoff. Staff
has indicated that the amount of water provided will likely be
similar to 2016, which was also based on snowpack conditions.
This determination will be made under the flexibility that the
existing expired leases afford.”
Also on May 1, 2018, LADWP sent the lessees an email
stating that it had evaluated the snowpack and anticipated
runoff, which was 78 percent of normal, and had determined that
it would provide the lessees 4,200 AF of water that runoff year.
4,200 AF of water amounted to 0.71 AF/acre of land governed by
the 2010 Leases. LADWP said this amount was consistent with
how much water it had provided two years earlier, when the
runoff was 82 percent of normal.
Mono County followed up two days later with a letter in
which it accused Los Angeles of planning to increase exports of
8
water by discontinuing water deliveries to Mono County ranches
and habitat or reducing such deliveries to an unsustainable level.
In the summer of 2018, Los Angeles spread approximately
900 AF of water on land within the leased properties to support
the population of the sage grouse, separate from the irrigation
flows delivered to the lessees.
In August 2018, Mono County sent a letter to the mayor of
Los Angeles reiterating that Los Angeles’ decision to divert and
export almost all of the irrigation water it had historically
provided the lessees was affecting the lessees and the
environment, including the sage grouse, without prior
environmental review. A week later, Mono County notified Los
Angeles that it intended to file a petition for writ of mandate
alleging Los Angeles’ decision to curtail or reduce water
deliveries to the lessees in order to export additional water to Los
Angeles failed to comply with CEQA. Mono County filed its
lawsuit the next day. Simultaneously, Los Angeles issued a
notice of preparation that it would prepare an environmental
impact report for the Proposed Dry Leases. Mono County later
filed a first amended petition in which the Sierra Club joined as a
petitioner.
III. Writ petition proceedings
During proceedings on Mono County’s petition, the parties
disagreed about whether there was a formal administrative
record of proceedings, because they disagreed about whether Los
Angeles’ reduction of water was the implementation of a
previously approved project or the approval of a new project. Los
9
Angeles ultimately stipulated that it would prepare and certify
an administrative record but reserved the right to argue that
Mono County was not challenging a project subject to CEQA.
After the trial court issued a tentative order granting Mono
County’s petition but before the hearing, Los Angeles filed a
declaration by Eric Tillemans, a manager at LADWP (Tillemans
Declaration). The Tillemans Declaration asserted that Los
Angeles diverted approximately 6.6 AF/acre of water to the
leased properties in 2019 and 3 AF/acre of water in 2020. At the
hearing on the tentative order, the parties argued about whether
the court should consider this declaration. The trial court
continued the hearing to allow Mono County to present a
response to the declaration. Mono County then filed a response,
to which Los Angeles replied.
The trial court ultimately granted Mono County’s writ
petition. It ruled that Los Angeles committed to a project
without CEQA review when it proposed a change in water use in
the Proposed Dry Leases and then implemented that change in
the 2018 water allocations. The trial court issued a writ of
mandate directing that until Los Angeles complied with CEQA, it
had to maintain the status quo and provide water to the lessees
consistent with annual fluctuation and availability of runoff
around a five-year historical baseline, which the writ calculated
as approximately 3.2 AF/acre from 2016 to 2021. The trial court
denied Los Angeles’ attempt to augment the administrative
record with the Tillemans Declaration, though it did consider
10
that declaration when it calculated the historical baseline for the
purposes of its writ of mandate.
DISCUSSION
I. Extra-record evidence
Before turning to the merits of Mono County’s CEQA
arguments, we will first establish the record for those arguments
by addressing Los Angeles’ contention that the trial court erred
in partially excluding the Tillemans Declaration. The trial court
excluded the declaration “regarding the resolution of the case on
the merits” because Los Angeles submitted it after briefing was
complete and the court had issued a tentative decision. The court
also ruled that the declaration’s information about water
allocations in 2019 and 2020 was irrelevant to the question of
whether the 2018 water allocation was a change in water use
policy that constituted a CEQA project. The trial court
nonetheless considered the declaration “regarding the remedy”
for the violation it found; the court used the figures in the
declaration when it calculated the five-year average water
allocation (subject to annual variation in anticipated runoff) that
Los Angeles needed to maintain pending completion of CEQA
review.
Los Angeles raises four arguments against the trial court’s
ruling. It argues (1) the additional evidence in the declaration
was admissible because there was no administrative record, (2)
the declaration was not untimely because the trial court’s
tentative order raised for the first time the notion that the 2018
allocation was a commitment to the water policy in the Proposed
11
Dry Leases, (3) evidence that Los Angeles provided substantial
amounts of water in 2019 and 2020 was relevant to proving it did
not commit to a policy of reducing water deliveries, and (4) the
trial court could not exclude the evidence for the purposes of the
merits while considering it for the remedy. Mono County
supports the trial court’s stated rationale and further argues that
Los Angeles did not comply with various California Rules of
Court and local rules when it filed the declaration. It also asserts
that the declaration is inaccurate because it merely presents its
conclusions about the amount of water per acre without
disclosing the basis for those conclusions and one of the
conclusions is mathematically flawed.
We agree with Los Angeles’ first argument that the
declaration is admissible as extra-record evidence. While extra-
record evidence is largely inadmissible in administrative
mandamus cases, such evidence is admissible “in traditional
mandamus actions challenging ministerial or informal
administrative actions if the facts are in dispute.” (Western
States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559,
576.) This rule applies here. The 2018 allocation that Mono
County challenges was not the product of a quasi-legislative
decision by LADWP’s board or a quasi-judicial adjudicatory
decision issued after a required hearing. It was instead the
product of a lower-level staff decision, so it qualifies as an
informal or ministerial administrative action. Mono County’s
writ petition challenging the 2018 allocation is therefore a
traditional mandamus action, governed by section 21168.5 and
12
Code of Civil Procedure section 1085. (Id. at pp. 566–567.) There
is accordingly no bar under administrative law to the trial court’s
consideration of the Tillemans Declaration. (Cont.Ed. Bar,
Practice under the California Environmental Quality Act (2022)
§ 23.56 [admission of evidence outside the record is usually
necessary in cases where an agency determines an activity is not
subject to CEQA or is exempt].)
Los Angeles is also correct that the declaration is relevant
to Mono County’s petition. Mono County’s position is that the
lower allocation of water in 2018 was the implementation of a
new policy of curtailed or eliminated water, either on its own or
as the beginning of the same policy embodied in the Proposed Dry
Leases proposal. Evidence that Los Angeles allocated higher
amounts of water after 2018, including an allocation greater than
the 5 AF/acre to which Mono County contends the lessees are
entitled, plainly has some “tendency in reason to prove or
disprove” Mono County’s allegation that Los Angeles
implemented a low- or no-water policy in 2018. (Evid. Code,
§ 210.)
We nonetheless agree with the trial court and Mono County
that the Tillemans Declaration was untimely. The first page of
Mono County’s brief in support of its writ petition asserted that
the issue before the trial court was whether Los Angeles’ 2018
decision to modify its land management practices by significantly
reducing water deliveries was a project under CEQA. Mono
County later stated explicitly that the 2018 allocation was an
implementation of the same project as the Proposed Dry Leases.
13
Los Angeles had enough notice about the scope of Mono County’s
petition that it should have submitted the Tillemans Declaration
with its opposition brief.
Had the trial court completely excluded the declaration,
this would be the end of the matter and we would affirm the
ruling. However, after excluding the declaration from its
consideration of the merits of Mono County’s petition, the trial
court went on to consider it for the purposes of crafting a remedy.
This was inconsistent and improper. The declaration could not
be untimely and irrelevant to the question of whether Los
Angeles departed from the status quo in 2018 but timely and
relevant to defining the status quo that needed to be maintained.
If the trial court believed Los Angeles had implemented a new
low-water policy in 2018, it does not make sense to include water
allocations under that policy when crafting an order designed to
preserve the status quo that predated the policy.
The remedy for the trial court’s error could be either to
exclude the Tillemans Declaration for all purposes or admit it for
all purposes. Because the trial court considered the declaration
for some purposes, its timeliness concern cannot have been that
significant. And by giving Mono County an opportunity to
respond to the declaration, the trial court avoided any prejudice
to Mono County from the untimely filing. Additionally, as noted
above, we have concluded the declaration is relevant to the issues
at hand. We will therefore consider the Tillemans Declaration
when examining the merits of Mono County’s arguments.
14
II. CEQA Compliance
A. Legal Principles and Standard of Review
“CEQA and its implementing administrative regulations
(CEQA Guidelines) establish a three-tier process to ensure that
public agencies inform their decisions with environmental
considerations. [Citation.] The first tier is jurisdictional,
requiring that an agency conduct a preliminary review to
determine whether an activity is subject to CEQA. [Citations.]
An activity that is not a ‘project’ as defined in the Public
Resources Code (see § 21065) and the CEQA Guidelines (see
§ 15378) is not subject to CEQA.” (Muzzy Ranch Co. v. Solano
County Airport Land Use Com. (2007) 41 Cal.4th 372, 379–380,
fn. omitted (Muzzy Ranch).)3 “Second, assuming CEQA is found
to apply, the agency must decide whether the activity qualifies
for one of the many exemptions that excuse otherwise covered
activities from CEQA’s environmental review. Finally, assuming
no applicable exemption, the agency must undertake
environmental review of the activity, the third tier.” (Union of
Marijuana Patients, supra, 7 Cal.5th at p. 1185.) Environmental
review can consist of a negative declaration, a mitigated negative
3“Courts have often labeled the project decision
‘jurisdictional’ because it determines whether CEQA applies at
all. [Citations.] The term is inapposite because an agency’s
jurisdiction over a proposed activity does not depend upon the
application of CEQA. Nonetheless, its use conveys the
preliminary nature of the project determination.” (Union of
Medical Marijuana Patients, Inc. v. City of San Diego (2019)
7 Cal.5th 1171, 1186, fn. 4 (Union of Marijuana Patients).
15
declaration, or an environmental impact report (EIR). (Id. at
pp. 1186–1187.)
Appellate review in a CEQA case is “de novo in the sense
that we review the agency’s actions as opposed to the trial court’s
decision.” (North Coast Rivers Alliance v. Westlands Water
Dist. (2014) 227 Cal.App.4th 832, 849.) “The standard of review
in a CEQA case, as provided in sections 21168.5 and 21005, is
abuse of discretion. Section 21168.5 states in part: ‘In any action
or proceeding . . . to attack, review, set aside, void or annul a
determination, finding, or decision of a public agency on the
grounds of noncompliance with this division, the inquiry shall
extend only to whether there was a prejudicial abuse of
discretion.’ [Citation.] [The Supreme Court’s] decisions have
thus articulated a procedural issues/factual issues dichotomy.
‘[A]n agency may abuse its discretion under CEQA either by
failing to proceed in the manner CEQA provides or by reaching
factual conclusions unsupported by substantial evidence.
(§ 21168.5.) Judicial review of these two types of error differs
significantly: While we determine de novo whether the agency
has employed the correct procedures, “scrupulously enforc[ing] all
legislatively mandated CEQA requirements” [citation], we accord
greater deference to the agency’s substantive factual
conclusions.’ ” (Sierra Club v. County of Fresno (2018) 6 Cal.5th
502, 512.)
B. 2018 Water Allocation
The parties frame their arguments on the merits in this
case in several different ways, but most of their arguments,
16
including the one we find dispositive, center on the core question
of whether the 2018 water allocation is part of the 2010 Leases
project or a new reduced water project, either on its own or as
part of the Proposed Dry Leases. We therefore begin with that
issue.
“Whether an activity is a project is an issue of law that can
be decided on undisputed data in the record on appeal.” (Muzzy
Ranch, supra, 41 Cal.4th at p. 382.) As relevant here, CEQA
defines a project as “an activity which may cause either a direct
physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment, and which is any of
the following: [¶] (a) An activity directly undertaken by any
public agency. [¶] (b) An activity undertaken by a person which is
supported, in whole or in part, through contracts, grants,
subsidies, loans, or other forms of assistance from one or more
public agencies. [¶] (c) An activity that involves the issuance to a
person of a lease, permit, license, certificate, or other entitlement
for use by one or more public agencies.” (§ 21065.)
The CEQA Guidelines expand on this and define a project
as “the whole of an action, which has a potential for resulting in
either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the
environment, and that is any of the following: [¶] (1) An activity
directly undertaken by any public agency . . . . [¶] (2) An activity
undertaken by a person which is supported in whole or in part
through public agency contracts, grants, subsidies, loans, or other
forms of assistance from one or more public agencies. [¶] (3) An
17
activity involving the issuance to a person of a lease, permit,
license, certificate, or other entitlement for use by one or more
public agencies.” (CEQA Guidelines, § 15378, subd. (a).) The
CEQA Guidelines further state, “The term ‘project’ refers to the
activity which is being approved and which may be subject to
several discretionary approvals by governmental agencies. The
term ‘project’ does not mean each separate governmental
approval.” (CEQA Guidelines, § 15378, subd. (c).)
There are thus three separate strands to these definitions:
agency involvement, physical change to the environment, and
whole of an action including multiple discretionary approvals.
There is no dispute about Los Angeles’ involvement in the 2018
water allocation or whether that allocation is the type of activity
that might cause a physical change in the environment. Even if
there were, we would easily find those conditions satisfied here.
LADWP either directly or indirectly controlled the application of
irrigation water to the leased properties, and a change in
irrigation policy would reasonably be expected to affect the
physical environment. The focus of our inquiry is therefore on
whether the 2018 water allocation is the whole of an action or
part of a larger action, either the 2010 Leases or the Proposed
Dry Leases.
We conclude the allocation is part of the 2010 Leases. The
2018 water allocation was not a one-off action by Los Angeles. It
came after years of such actions and, because the 2010 Leases
were in holdover status, an ongoing leasehold relationship
governed it. It would make sense to view the 2018 water
18
allocation as a project of its own or as part of the Proposed Dry
Leases only if it were a departure from the terms of the 2010
Leases or, perhaps, Los Angeles’ practice of delivering water
under those leases. A close examination of the 2010 Leases, the
history of water allocations under them, and Los Angeles’
deliveries after 2018 demonstrates that the 2018 allocation was
not a turning point towards a low-water policy or the Proposed
Dry Leases, but rather the latest in a string of discretionary
water allocations that the 2010 Leases allowed Los Angeles to
make.
Terms of 2010 Leases
The 2010 Leases state that water supplied to land
classified for irrigation “will be delivered in an amount not to
exceed five (5) acre-feet per irrigation season” and that this water
is “highly dependent upon water availability and weather
conditions” such that “delivery of irrigation water may be reduced
in dry years.” The leases also state that water availability “is
conditioned upon the quantity in supply at any given time,” but
that “[t]he amount and availability of water, if any, shall at all
times be determined solely by” Los Angeles. Another provision
allows Los Angeles to make a “dry finding” and reclassify a
lessee’s land as not subject to irrigation based on “the availability
of water,” in which case the rent owed by the lessee will be
reduced. The 2010 Leases obligate the lessees to carry out
certain land management plans that are intended to continue
sustainable uses such as livestock grazing and agriculture.
19
Mono County contends that these provisions demonstrate
that the lessees had reasonable expectations that the 2010
Leases obligated Los Angeles to continue to deliver water for
sustainable grazing uses and did not allow it to curtail water
deliveries for the purposes of increasing water deliveries to Los
Angeles’ residents. If these provisions were the only aspects of
the 2010 Leases that addressed water supplies, we might agree.
However, the 2010 Leases begin the discussion of water supplies
by stating, “It is understood and agreed to by Lessee that this
lease is given upon and subject to the paramount rights of [Los
Angeles] with respect to all water and water rights . . . .” Most
significantly, the 2010 Leases further state, “Lessee further
acknowledges and agrees that pursuant to Section 220(3) of the
City of Los Angeles City Charter, any supply of water to the
leased premises by [Los Angeles] is subject to the paramount
right of [Los Angeles] at any time to discontinue the same in
whole or in part and to take or hold or distribute such water for
the use of [Los Angeles] and its inhabitants. Lessee further
acknowledges and agrees that there shall be no claim upon [Los
Angeles] whatsoever because of any exercise of the rights
acknowledged under this subsection.”4
4 Neither Los Angeles nor Mono County quotes or explains
what section 220(3) of the Los Angeles City Charter says about
water. Our research suggests that the 2010 Leases’ citation to
section 220(3) referred to the charter in effect prior to 2000, when
the voters of Los Angeles adopted a new charter. (Woo v.
Superior Court (2000) 83 Cal.App.4th 967, 971.) Section 677 of
the current charter appears to contain the content of section
220(3) of the former charter, and it empowers the board of
20
The plain language of the last provision accords Los
Angeles the right to do precisely what Mono County contends it
did: curtail water deliveries for the purposes of increasing water
deliveries to Los Angeles’ residents. Mono County resists this
conclusion by characterizing this provision as a contingent
reservation of a future right and arguing that if the 2010 Leases
allowed Los Angeles to reduce irrigation water in favor of water
deliveries to the city, Los Angeles would have prepared an EIR
when it approved the leases instead of declaring the project
exempt as involving unchanged use of existing facilities. Mono
County is right that the provision is a reservation of a right for
Los Angeles to exercise in the future. But nothing prevents Los
Angeles from exercising the right when it wants to, so it must be
considered a part of the 2010 Leases project. Mono County’s
speculation that Los Angeles would have prepared an EIR if it
believed it was obtaining in the 2010 Leases a right to curtail
water deliveries is just that—speculation.5
LADWP to distribute surplus water not required by consumers
within the city limits, “subject to the paramount right of the City,
at any time, to discontinue the contract, in whole or in part, and
to take, hold and distribute, the surplus water for the use of the
City and its inhabitants.” (L.A. City Charter, § 677(a)(2)(A).)
5 The lessees are not parties to this proceeding, and our
interpretation of the terms of the 2010 Leases for the purposes of
identifying the relevant CEQA project is without prejudice to any
breach of contract claims they might raise against Los Angeles.
We reject Los Angeles’ argument, raised for the first time in its
reply brief, that the lessees are indispensable parties and that
Mono County’s failure to join them requires dismissal.
21
The reservation of rights provision might suggest that Los
Angeles could permanently end the delivery of irrigation water
under the 2010 Leases, thereby effectively implementing a zero-
water policy under those leases without needing to perform any
additional environmental review. Mono County argues that Los
Angeles’ choice to undertake environmental review for the
Proposed Dry Leases shows that the 2010 Leases do not give it
this power, because otherwise it would not have needed to start a
new project. We need not decide whether the reservation of
rights can be stretched so far as to allow Los Angeles to end all
water deliveries under the 2010 Leases. Los Angeles concedes
that a policy of not providing any irrigation water to the leased
properties is a markedly different project than the 2010 Leases.
We accept this concession and therefore conclude the 2010 Leases
project includes the provision of irrigation water subject to
changing water availability and Los Angeles’ right to reduce
water allocations to free up water for its own purposes, so long as
such reductions do not de facto convert the 2010 Leases into dry
leases. Such an interpretation reconciles the reservation of rights
with the numerous provisions tying the supply of irrigation water
to the availability of water.
Mono County also argues that Communities for a Better
Environment v. South Coast Air Quality Management Dist. (2010)
48 Cal.4th 310 (Communities) governs here and dictates that a
grant of discretion in the 2010 Leases cannot excuse Los Angeles
from complying with CEQA. In that case, an oil company had
permits to operate boilers at certain maximum levels, though it
22
normally did not run the boilers at the maximum levels. (Id. at
pp. 317, 322.) The Supreme Court held that the evaluation of the
environmental effects of a new project proposal to create diesel
fuel that included increased operation of the existing boilers had
to account for the increased emissions from the boilers. (Id. at
pp. 316–318, 322.) Although the company already could increase
the use of the boilers under its existing permits, the maximum
allowed by those permits did not establish the baseline for the
new project’s additional effects. (Id. at p. 322.) That baseline
was determined by the refinery’s actual operations, not
hypothetical maximums. (Ibid.)
The Supreme Court said its holding did not violate the
company’s vested rights to operate the boilers at the permitted
levels because it was considering a new project proposal and the
company’s “right to operate the boilers at any particular level
[was] not itself at issue.” (Communities, supra, 48 Cal.4th at
p. 323.) It explained that CEQA analysis of the proposed project
“could not result in an order that [the company] reduce or limit
its use of an individual boiler below the previously permitted
level.” (Ibid.) The Court rejected a statute of limitations
argument for the same reason, reiterating that “CEQA analysis
of the Diesel Project does not constitute review of the
[government agency’s] long-final decisions to issue the boiler
permits.” (Id. at p. 325.)
Applied here, Communities establishes that Los Angeles’
analysis of the environmental impacts of the zero-water policy in
the Proposed Dry Leases must be measured against the baseline
23
of the amounts of irrigation water Los Angeles has actually
provided the lessees, not its hypothetical right to eliminate water
deliveries in any given year. But this does not help Mono
County, because Communities also establishes that the need for
CEQA analysis of the Proposed Dry Leases project does not
prevent Los Angeles from exercising its rights under the 2010
Leases to curtail or reduce water deliveries in any given year.
Historical practice
The parties’ practice under the 2010 Leases is consistent
with our interpretation of the terms of the 2010 Leases. Mono
County contends that Los Angeles historically provided up to 5
AF/acre of water to the leased properties, reduced proportionally
in any given year based on deviations in snowpack and
anticipated runoff from the historical average. But the record of
Los Angeles’ water deliveries under the 2010 Leases is not
consistent with this account. In 2010, a year with runoff of 104
percent of average, Los Angeles provided 4.3 AF/acre of water,
which is 86 percent of the 5 AF/acre maximum set in the 2010
Leases. In 2011, when there was 142 percent of normal runoff,
Los Angeles provided 5.4 AF/acre, which is more than the 5
AF/acre maximum set in the leases. In 2012, a year in which
runoff was 58 percent of normal, under Mono County’s theory Los
Angeles would have provided 2.9 AF/acre. The lessees instead
received 2.2 AF/acre, which is 44 percent of a 5 AF/acre
allocation. In 2013, runoff was 55 percent of normal and the
lessees received 2.4 AF/acre, which is 48 percent of the 5 AF/acre,
close to what Mono County’s theory would predict. But in 2014,
24
runoff was similar at 53 percent of normal, and the lessees
received only 30 percent of the 5 AF/acre, or 1.5 AF/acre. In
2015, runoff was 48 percent of normal, and the lessees received
no water at all. In 2016, runoff was 82 percent of normal, and
the lessees received 0.7 AF/acre, which represents 14 percent of 5
AF/acre. In 2017, runoff was 202 percent of normal and the
lessees received 5 AF/acre, as Mono County’s theory would
predict.
The figures present an overall picture of water deliveries
that correlate only loosely with annual runoff and have a high
minimum threshold of runoff before Los Angeles will deliver
water. This is not consistent with Mono County’s argument that
water deliveries have a 5 AF/Acre maximum that is reduced
proportionally when runoff is below average. In particular, Los
Angeles’ provision of 30 percent of the 5 AF/acre in 2014, no
water in 2015, and 14 percent of the 5 AF/acre in 2016, despite
rainfall in those years being much higher, demonstrate that
water deliveries under the 2010 Leases do not have a linear
relationship with runoff. The 2016 figures are especially striking
because the runoff that year was comparable to the runoff in
2018 (82 percent of normal in 2016 and 78 percent in 2018), and
the amount of water provided was essentially identical, 0.7
AF/acre in 2016 and 0.71 AF/acre in 2018. These 2016 figures
show that Los Angeles’ 2018 water allocation was consistent with
historical practice, not an aberration indicative of a new water
policy.
25
Mono County discounts the significance of the 2015 and
2016 figures, asserting that 2015 was the peak of a drought, 2016
was the first year of recovery, and in both years the lessees
agreed to lower water allocations. The pages of the record that
Mono County cites to support its assertion that the lessees
acquiesced to reduced deliveries in those years do not support its
assertion. Moreover, the record shows that in both 2015 and
2016, Mono County wrote to Los Angeles to complain about the
reduced deliveries, suggesting that the lessees objected to the
water allocations in those years.
More broadly, Mono County’s attempt to explain away the
2015 and 2016 water allocations as the product of extenuating
circumstances serves only to show that water deliveries under
the 2010 Leases depend on more than just rainfall and
anticipated runoff in any given year. If Los Angeles had the right
to reduce deliveries in 2015 and 2016 to take into account prior
shortfalls or other criteria, as Mono County contends, its
allocation of 0.71 AF/acre in 2018, a year of below average
rainfall, does not seem remarkable. While runoff in 2017 was
well above average, after the five-year severe drought that lasted
from 2012 to 2017 Los Angeles could have reasonably decided to
reduce the allocation in 2018 in response to a below average
runoff year, perhaps to conserve water resources in case the
drought returned.
Subsequent allocations
Los Angeles’ practice under the 2010 Leases after 2018
confirms that the 2018 water allocation was not a radical
26
departure from previous practice. According to the Tillemans
Declaration, in 2019 Los Angeles diverted approximately 6.6
AF/acre of water to the leased properties, and in 2020 it diverted
3 AF/acre of water. Mono County contends the Tillemans
Declaration omits the amount of runoff in those years and
incorrectly calculates the amount of water Los Angeles provided
in 2019, with the correct number being 6.2 AF/acre. These are
valid criticisms, but they do not change the fact that Los Angeles
provided substantial quantities of water in 2019 and 2020. There
is no need to know the amount of runoff to see that the 2019 and
2020 allocations are significantly higher than the 2018 level.
This evidence refutes Mono County’s argument that the 2018
water allocation represented the beginning of a new low- or zero-
water delivery policy.
Mono County compares Los Angeles’ actions here with the
facts in County of Inyo v. Yorty (1973) 32 Cal.App.3d 795 (Yorty),
which dealt with an earlier dispute surrounding Los Angeles’
actions in exporting water from the Owens Valley to Los Angeles.
There, Inyo County contended that Los Angeles’ program of
increased groundwater pumping from the Owens Valley
constituted a project under CEQA and Los Angeles needed to
prepare an EIR before approving the project. (Id. at pp. 800–
802.) Los Angeles contended the increased pumping was part of
the same project as the aqueduct by which the pumped
groundwater was transported. (Id. at p. 805.) Because the
aqueduct was built and used before the advent of CEQA, Los
Angeles argued the pumping was exempt from CEQA. (Ibid.)
27
The Court of Appeal held that the aqueduct project was separate
from Los Angeles’ increased pumping of groundwater, in part
because the aqueduct had been used to transport surface water in
the past while pumped groundwater was becoming a larger
portion of the water in the aqueduct. (Id. at p. 806.) The court
also noted that Los Angeles had completed the aqueduct before
CEQA took effect but had only spent about half of the money for
the groundwater pumping at that point, indicating that the
groundwater pumping project, unlike the aqueduct, was being
completed after CEQA. (Id. at pp. 806–807.)
Mono County argues that Los Angeles’ cutbacks in
irrigation water and augmented exports of water are similar to
its increase in groundwater pumping and reduced water
deliveries in Yorty, so the 2018 allocation is a separate project
from the 2010 Leases. The comparison does not hold. First,
Yorty did not involve anything like the 2010 Leases. By granting
Los Angeles the authority to reduce water allocations to the
lessees in future years, the Leases—not Los Angeles’ historical
record of water deliveries—set the parameters of the project
under CEQA. Second, the historical record of water allocations
under the 2010 Leases, and in particular the low allocations in
2014, 2015, and 2016 and higher allocations in 2019 and 2020,
demonstrate that the 2018 water allocation was, for CEQA
purposes, an implementation of the 2010 Leases, not a new
project severable from the 2010 Leases. Finally, as Los Angeles
pointed out in the trial court and in its briefs here, there is no
evidence in the record that Los Angeles increased its exports of
28
Mono County water to Los Angeles residents in 2018 or
afterwards.
In a variation on its Yorty argument, Mono County
contends that the 2018 water allocation was a significant change
from the 2010 Leases that triggered the need for an initial
environmental review as a new project. This argument relies on
Mono County’s assertions that in 2018 Los Angeles provided less
water than it had historically, increased water exports, and
directly spread a portion of the 2018 water allocation itself,
purportedly to preserve habitat for the sage grouse. We have
already rejected the first two assertions as factually unsupported.
The third does not sway us. Even if Los Angeles’ choice in 2018
to directly spread a small amount of water on the leased
properties (rather than having the lessees spread it) could be
viewed as a deviation from prior practice under the 2010 Leases,
that change is minor and insignificant. This is especially true
given that the change was designed to mitigate environmental
harm and that there is no evidence it increased environmental
impacts in any way.
Proposed Dry Leases
Besides arguing that the 2018 water allocation was a
departure from the past practice under the 2010 Leases, Mono
County also argues the allocation constituted Los Angeles’
improper implementation of the project embodied in the Proposed
Dry Leases, before the requisite CEQA review. This argument
relies on the timing of Los Angeles issuing the Proposed Dry
Leases, Mono County and the lessees objecting to the Proposed
29
Dry Leases on CEQA and other grounds, Los Angeles issuing the
2018 water allocation in a smaller amount than the lessees
expected, and Los Angeles then filing a notice of preparation of
an EIR for the Proposed Dry Leases project. Mono County cites
several communications that discuss both the 2018 water
allocation and the Proposed Dry Leases, including the May 1,
2018, letter from the Los Angeles mayor, as evidence of the
connection between the 2018 allocation and the Proposed Dry
Leases. The trial court relied on this evidence to find the 2018
water allocation constituted part of the same project as the
Proposed Dry Leases.
Contrary to Mono County’s argument, the sequence of
events supports our conclusion that the 2018 water allocation
was within the scope of the 2010 Leases. The timing is consistent
with Los Angeles’ explanation that it issued the Proposed Dry
Leases, agreed to complete the requisite environmental review
for those Leases, and committed to maintaining its allocation
practice under the 2010 Leases while proceeding with the
environmental review. We have concluded that the 2018 water
allocation was within Los Angeles’ authority under the 2010
Leases and consistent with its water allocation practice both
before and after 2018; as a result, Mono County cannot sustain
its burden of establishing that Los Angeles prejudicially abused
its discretion in determining that the 2018 water allocation was
within the scope of the 2010 Leases project and not subject to
additional environmental review. (Ebbetts Pass Forest Watch v.
California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th
30936, 944.) It is also not surprising that Los Angeles’
communications discussed both the 2010 Leases and the
Proposed Dry Leases, given that Los Angeles needed to explain
that it was continuing under the 2010 Leases when it announced
the environmental review of the Proposed Dry Leases project.
Admittedly, the timing of the 2018 water allocation, viewed
in isolation, could also support Mono County’s opposing inference
that Los Angeles intended to use a lower annual water allocation
under the 2010 Leases to implement the new water policy that it
had proposed in the form of the new dry leases. Given the
contentious history of Los Angeles’ acquisition of water rights in
Mono and Inyo Counties, Mono County’s suspicions in this regard
are understandable. (See Reisner, Cadillac Desert (1986) pp. 64–
73; Dufurrena, Give Me a Stone (Winter 2018–2019) Range
Magazine, at p. 23.) However, we find this inference implausible.
The Tillemans Declaration directly contradicts this view of the
timing of Los Angeles’ actions, since the water allocations in 2019
and 2020 show that Los Angeles has not implemented a low- or
zero-water policy.
The notice of preparation that Los Angeles issued in which
it stated it was undertaking environmental review for the
Proposed Dry Leases may constitute an admission that the dry
leases are a new project, as Mono County argues. But the notice
of preparation does not mean Los Angeles’ claimed reliance on
the 2010 Leases for the 2018 allocation was a pretext for
implementing that new project. Mono County’s theory also
makes little sense. If 2018 marked the beginning of a practice of
31
sharply reduced water deliveries to the lessees (disregarding for
the moment the Tillemans Declaration’s evidence of increased
allocations in 2019 and 2020), the correlation between the shift
and the Dry Leases Proposal would be obvious and Los Angeles’
claim to be relying on the 2010 Leases would be unmistakably
pretextual. Without some evidence beyond the timing sequence
to support the notion that the 2018 allocation was a subterfuge of
some sort, we do not subscribe to Mono County’s view that Los
Angeles deceived the public and the courts by falsely claiming the
2018 water allocation was separate from the Proposed Dry
Leases. (Evid. Code, § 664 [“It is presumed that official duty has
been regularly performed”]; Bus Riders Union v. Los Angeles
County Metropolitan Transportation Agency (2009)
179 Cal.App.4th 101, 108 [“It is well established that . . . ‘[a]ll
presumptions of law are in favor of the good faith of public
officials’ ”].)
C. Statute of limitations
Our determination that the 2018 water allocation was part
of the 2010 Leases project and not a project in its own right or an
implementation of the Proposed Dry Leases makes the
disposition of Mono County’s petition straightforward. Our
analysis at this point could take several different paths. (See
Save Tara v. City of West Hollywood, supra, 45 Cal.4th at
pp. 129, fn. 8, 131 [recognizing that a CEQA dispute over an
activity could be viewed as a question of whether the activity was
a project or a timing question of when the agency approved it].)
32
The simplest route out of the thicket of the parties’ arguments
involves the statute of limitations.
“To ensure finality and predictability in public land use
planning decisions, statutes of limitations governing challenges
to such decisions are typically short. [Citations.] The limitations
periods set forth in CEQA adhere to this pattern; indeed, as the
CEQA Guidelines themselves assert, ‘CEQA provides unusually
short statutes of limitations on filing court challenges to the
approval of projects under the act.’ (CEQA Guidelines, § 15112,
subd. (a), italics added.)” (Stockton Citizens for Sensible Planning
v. City of Stockton (2010) 48 Cal.4th 481, 499.) The longest
limitations period applicable to a CEQA claim is 180 days from
project approval or, if there was no formal approval, 180 days
from the commencement of construction. (Id. at pp. 500–501.) If
a party does not file a court action challenging a project within
this period, such a challenge is barred. (Id. at p. 499, citing
CEQA Guidelines § 15112, subd. (b).)
Los Angeles approved the 2010 Leases in early 2010. Mono
County’s writ petition challenging the 2018 implementation of
that project, which Mono County filed in August 2018, is
therefore time-barred. The fact that the 2018 water allocation
was a subsequent discretionary decision or approval of an activity
under the 2010 Leases does not remove it from the ambit of the
2010 Leases project, so the 2018 allocation did not restart the
limitations period. (Van de Kamps Coalition v. Board of Trustees
of Los Angeles Community College Dist. (2012) 206 Cal.App.4th
1036, 1047–1048.) “The limitations period starts running on the
33
date the project is approved by the public agency and is not
retriggered on each subsequent date that the public agency takes
some action toward implementing the project.” (Id. at p. 1045.)
This rule is based on the definition of a CEQA project as being
the “whole of an action,” not “each separate governmental
approval” taken to implement the project. (CEQA Guidelines
§ 15378, subds. (a), (c); Van de Kamps, at p. 1045.) It makes no
difference that Los Angeles approved the 2010 Leases under an
exemption. (City of Chula Vista v. County of San Diego (1994)
23 Cal.App.4th 1713, 1717, 1720–1721 [authorization of award of
renewed service contract to operate hazardous waste facility and
simultaneous notice of exemption started the statute of
limitations, not later execution of materially identical contract].)
If Mono County believed that a decision to reduce the
lessees’ water allocation in a specific year would be a substantial
change in practice and have significant effects on the
environment, it should have raised that argument when Los
Angeles approved the 2010 Leases that gave it the authority to
make such reductions. Los Angeles could then have considered
the argument that it was departing from its prior policy and
evaluated any environmental impacts and feasible mitigation
measures. At a minimum, even if Los Angeles’ approval of the
2010 Leases and its reservation of water rights did not give Mono
County notice that Los Angeles claimed the authority under the
leases to eliminate water deliveries in any given year, Los
Angeles’ exercise of that authority in 2014, 2015, and 2016 surely
did provide such notice. Mono County should have filed a CEQA
34
petition at that time, when it complained of the environmental
effects of such a decision in letters to Los Angeles.
DISPOSITION
The trial court’s judgment is reversed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
DESAUTELS, J.
County of Mono et al. v. City of Los Angeles et al. (A162590)

Judge of the Superior Court of California, County of
Alameda, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
35
Filed 7/26/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
COUNTY OF MONO et al.,
Plaintiffs and
Respondents, A162590
v.
(Alameda County
CITY OF LOS ANGELES et al., Super. Ct. No.
Defendants and RG18923377)
Appellants;
DEPARTMENT OF FISH AND
WILDLIFE,
Real Party in Interest.
THE COURT:
The opinion in the above-entitled matter filed on June 30,
2022, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
Date: July 26, 2022 POLLAK, P. J.
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Evelio M. Grillo
Counsel: Myers Nave, Amrit S. Kulkarni, Julia L. Bond,
Edward Grutzmacher; Michael N. Feuer, City
Attorney, Julie C. Riley, Assistant City
Attorney, David Edwards, Deputy City
Attorney; Joseph A. Brajevich for Defendants
and Appellants.
Law Office of Donald B. Mooney, Donald B.
Mooney; Stacey Simon, County Counsel;
Laurens Silver for Plaintiffs and Respondents.
Nhu Nguyen, Adam L. Levitan, Deputy
Attorneys General, for Real Party in Interest.