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1 ELIZABETH P. EWENS (SB #213046) ELECTRONICALLY FILED
elizabeth.ewens@stoel.com Superior Court of California
2 TIMOTHY M. TAYLOR (SB #144335) County of Santa Barbara
tim.taylor@stoel.com Darrel E. Parker, Executive Officer
3 JANELLE S.H. KRATTIGER (SB #299076) 5/4/2022 3:48 PM
janelle.krattiger@stoel.com By: Terri Chavez, Deputy
4 HERACLIO PIMENTEL (SB #326751)
heraclio.pimentel@stoel.com
5 STOEL RIVES LLP
500 Capitol Mall, Suite 1600
6 Sacramento, CA 95814
Telephone: 916.447.0700
7 Facsimile: 916.447.4781
8 TIFFANY N. NORTH (SB #228068)
County Counsel
9 JASON T. CANGER (SB #296596)
County Counsel
10 jason.canger@ventura.org
800 South Victoria Avenue, L/C #1830
11 Ventura, CA 93009-1830
Telephone: 805.654.2590
12 Facsimile: 805.654.2185
13 Attorneys for Respondent and Defendant EXEMPT FROM FILING FEES
Fox Canyon Groundwater Management Agency GOV. CODE, § 6103
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 COUNTY OF SANTA BARBARA
17 LAS POSAS BASIN WATER RIGHTS CASE NO. 21CV03714
COALITION, an unincorporated association,
18 FOX CANYON GROUNDWATER
Petitioner and Plaintiff, MANAGEMENT AGENCY’S
19 OBJECTIONS AND REQUEST TO STRIKE
v. LAS POSAS BASIN WATER RIGHTS
20 COALITION’S CASE MANAGEMENT
FOX CANYON GROUNDWATER STATEMENT
21 MANAGEMENT AGENCY, a public entity,
22 Respondent and Defendant.
23 Action Filed: September 17, 2021
Trial Date: Not set.
24
25
26
27
28
S TOEL R IVES LLP
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ATTORNEYS AT LAW
FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
SACRAMENTO
LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714
115391898.3 0041862- 00006
1 Respondent and Defendant Fox Canyon Groundwater Management Agency (“FCGMA”)
2 hereby submits the included Objections and Request to Strike Las Posas Basin Water Rights
3 Coalition’s Case Management Statement, filed April 22, 2022. Petitioner and Plaintiff, Las Posas
4 Basin Water Rights Coalition’s (“Petitioner”) Case Management Statement (“CMS”) improperly
5 requests a stay of proceedings in this case until the conclusion of the adjudication proceedings in a
6 separate lawsuit, Santa Barbara Superior Court, case no. VENCI00509700 (the “Adjudication
7 Action”). Petitioner’s CMS also improperly responds to FCGMA’s objection and response to
8 Petitioner’s Notice of Related Case, submitted April 8, 2022. Petitioner’s CMS should therefore
9 be stricken on procedural and substantive grounds.
10 Through Petitioner’s CMS, it seeks an extraordinarily prolonged, open-ended, and
11 indefinite stay of these proceedings. If Petitioner is unwilling or unable to timely litigate the merits
12 of the case that it filed as required by the statute, then Petitioner instead should request a dismissal
13 of its claims.
14 I. ARGUMENT
15 A. Petitioner’s Request to Stay Proceedings in this Case Until Conclusion of the
Adjudication Action Is Improper and Should Be Stricken.
16
1. Petitioner’s request to indefinitely stay the hearing date is
17 procedurally improper and substantively without merit.
18 By design, the Legislature intended proceedings, or portions of proceedings, brought
19 pursuant to the California Environmental Quality Act (“CEQA”) (Public Resources Code
20 section 21000 et seq.1), to be processed expeditiously. Indeed, section 21167.1(a) directs that “all
21 courts in which the action or proceeding is pending shall give the action or proceeding preference
22 over all other civil actions, in the matter of setting the action or proceeding for hearing or trial,
23 and in hearing or trying the action or proceeding, so that the action or proceeding shall be quickly
24 heard and determined.” (Emphasis added.) Further, when joined causes of action exist CEQA
25 specifically enables courts to grant severance of the actions in furtherance of the overarching
26 mandate for preference. (Pub. Resources Code, § 21187.1(c).)
27 1
Unless otherwise specifically noted, all subsequent statutory references shall be to the California
28 Public Resources Code.
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ATTORNEYS AT LAW
FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
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LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714
115391898.3 0041862- 00006
1 Yet, there is more. In comparison to the pace of other civil litigation matters, the rapidity
2 ingrained in CEQA requires petitioners to request a hearing within 90 days of filing the petition,
3 (section 21167.4(a)), following which courts must then establish a briefing schedule and hearing
4 date. (Pub. Resources Code, § 21167.4(c).) Petitioner’s request to indefinitely stay the proceedings
5 in this case is procedurally improper.
6 Petitioner’s unorthodox request is also substantively meritless. CEQA requires that, absent
7 good cause, briefing in a CEQA action be completed within 90 days from the date a hearing request
8 is filed, and that such hearing be held within 30 days thereafter, to the extent feasible. (Pub.
9 Resources Code, § 21167.4(c).) “Good cause may include, but shall not be limited to, the conduct
10 of discovery, determination of the completeness of the record of proceedings, the complexity of the
11 issues, and the length of the record of proceedings and the timeliness of its production.” (Ibid.)
12 Section 21167.4(c)’s inclusion of a “good cause” requirement confirms that deviation from
13 the statutorily prescribed timeline is reserved for exceptional circumstances. (See Nacimiento
14 Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004)
15 122 Cal.App.4th 961, 968 [“[t]the legislature thus plainly intended that a CEQA challenge be heard
16 within 210 days of commencement, or roughly seven months, absent exceptional circumstances”
17 (emphasis added)]; see, generally, People v. Accredited Surety Casualty Co. (2014) 230
18 Cal.App.4th 548, 559 [noting that the California Supreme Court has adopted general principles
19 about good cause requirements including that “good cause may be equated to a good reason for a
20 party’s failure to perform that specific requirement from which he seeks to be excused” (emphasis
21 added)].) Petitioner has not alleged any specific grounds nor any “exceptional circumstances” that
22 render the timely prosecution of this case infeasible. Petitioner’s complete speculation that an
23 interim and still incomplete phase in the separate adjudication might affect future agency
24 rulemaking in the basin prior to a final judgment is not good cause to indefinitely stay the
25 proceedings in this case, potentially for several years, until the Adjudication Action comes to a final
26 conclusion. (See Petitioner’s CMS, at pp. 3-4.) Thus, there are no justifiable grounds for deviating
27 from CEQA’s carefully crafted mandates. (See also, infra, section I.C.)
28 For each of these reasons, Petitioner’s unilateral request to indefinitely stay the proceedings
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FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
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LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714
115391898.3 0041862- 00006
1 in this case via its CMS is substantively and procedurally inappropriate, and all relevant references
2 in Petitioner’s CMS should be stricken.
3 2. Petitioner’s request to indefinitely stay the preparation of the record is
procedurally improper and substantively deficient.
4
5 The statutorily prescribed time limit to prepare and certify the record “may be extended only
6 upon the stipulation of all parties who have been properly served . . . or upon order of the court.”
7 (Pub. Resources Code, § 21167.6(c), emphasis added.)
8 Petitioner has elected to prepare the record per section 21167.6(b)(2), and FCGMA has
9 thrice stipulated to extend the statutory period as a professional courtesy. Via its most recent
10 stipulation, FCGMA has made clear to Petitioner that no further delay in preparing the record is
11 warranted under the circumstances of this case.2 Petitioner, nonetheless, improperly requests in its
12 CMS that this Court further delay preparation of the record until the distant unknown date on which
13 the Adjudication Action concludes. (Petitioner’s CMS, at p. 4.) A party’s unilateral request in a
14 CMS for an order to extend indefinitely the mandatory time limits in section 21167.6 is neither
15 appropriate nor permissible. (See Pub. Resources Code, § 21167.6(c) [providing for extension only
16 by stipulation or court order].) If the legislature had intended to give parties indefinite and
17 unlimited amounts of time to prepare a record they elected to prepare, and limitless time to
18 prosecute a case they voluntarily chose to file, it could have expressly stated so. (See, e.g.,
19 section 21167.4(a) [permitting dismissal of petition “on the court’s own motion or on the motion
20 of any party interested in the action or proceeding.”].) To the contrary, the legislature chose to
21 direct parties and the court to conduct proceedings in an expeditious manner. (Cf. Comunidad en
22 Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132 [“The requirement for
23
2
24 These circumstances include, but are not necessarily limited to: a) the fact that this is a case
contesting the lead agency’s (FCGMA) determination that the contested action was subject to a
25 CEQA exemption, and as such the administrative record will necessarily be considerably smaller
than had FCGMA prepared a substantive environmental document, whether a mitigated negative
26 declaration or an environmental impact report; and b) that by such date as agreed to via the third
stipulation dated April 12, 2022, Petitioner will have had 269 days, including 180 days of
27
extensions, to prepare the record, from the date of filing of the underlying petition/complaint in
28 this matter.
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ATTORNEYS AT LAW
FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
SACRAMENTO
LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714
115391898.3 0041862- 00006
1 expeditious review of CEQA claims [] is well established.”].) Petitioner’s unilateral request to
2 extend the statutory period for preparing the record is therefore procedurally improper, and the
3 request should be stricken.
4 Petitioner’s request is also substantively deficient. Section 21167.6(c) provides in part that
5 “no single extension shall exceed 60 days unless the court determines that a longer extension is in
6 the public interest.” “Courts have often noted the Legislature’s clear determination that ‘the public
7 interest is not served unless CEQA challenges are promptly filed and diligently prosecuted.’”
8 (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500.) “Indeed,
9 the time limits for compilation of the administrative record in subdivisions (b) and (c) of
10 section 21167.6 are a manifestation of the same focus on the value of time.” (County of Orange v.
11 Superior Court (2003) 113 Cal.App.4th 1, 12 (“County of Orange”).)
12 Petitioner alludes to the issues in the Adjudication Action that could “potentially” moot this
13 case. (Petitioner’s CMS, at p. 4.) Yet, Petitioner fails to articulate how the indefinite delay
14 resulting from an open-ended extension of Petitioner’s time to prepare the record serves the public
15 interest. (See Pub. Resources Code, § 21167.6(c).) The CEQA portion of this case attacks the
16 Allocation Ordinance on procedural grounds. Indefinitely delaying resolution of this case because
17 the Adjudication Action may “potentially” moot this action does not serve the public interest. It is
18 plainly in the public interest to have a certified record and avoid further delay of the proceedings
19 in this case so that there is legal certainty surrounding the challenged allocation ordinance that is
20 currently in effect. (Cf. County of Orange, supra, 113 Cal.App.4th at p. 12; see also, infra,
21 section I.C.)
22 3. FCGMA may prepare the record if Petitioner refuses to do so.
23 Section 21167.6(b)(2) allows, but does not require, Petitioner to prepare the record in this
24 case. Petitioner has elected to do so. Explicit in this right is that Petitioner prepare the record
25 “within the time limit specified in [subdivision (b)(1)],” (section 21167.6(b)(2)), and subject to
26 reasonable extensions only “when the size of the record of proceedings renders infeasible
27
28
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ATTORNEYS AT LAW
FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
SACRAMENTO
LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714
115391898.3 0041862- 00006
1 compliance with that time limit.” (Pub. Resources Code, § 21167.6(b)(2)3.) Petitioner’s improper
2 request for this Court to indefinitely stay preparation of the record demonstrates Petitioner’s lack
3 of intent to comply with Petitioner’s elected duty under the statute to proceed with timely
4 preparation. In the event of Petitioner’s inaction or unwillingness to prepare the record within the
5 time limits mandated by statute, FCGMA should be allowed to fulfill this requirement. (See San
6 Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 643
7 [“[Petitioner]’s right to prepare the record is subject to a 60-day limitation. Having unreasonably
8 delayed, it forfeited that right.”]; Id. at p. 644 [“[t]he [defendant] District has the right to a timely
9 record.”].)
10 B. Petitioner’s CMS Is an Improper Reply to FCGMA’s Objection To
Petitioner’s Notice Of Related Case.
11
12 On April 8, 2022, Petitioner belatedly filed a Notice of Related Case. Pursuant to California
13 Rules of Court, rule 3.300(g), FCGMA submitted a response and objection to the untimely Notice
14 of Related Case. Only thereafter did Petitioner take the unorthodox step of replying to FCGMA’s
15 response in Petitioner’s CMS. (See Petitioner’s CMS, at pp. 5-6.) California Rules of Court,
16 rule 3.300 does not extend to Petitioner any right to file a reply to FCGMA’s response, and even if
17 it did, it is procedurally unorthodox and inappropriate for Petitioner to imbed such a reply in its
18 CMS. (See, generally, Cal. Rules of Court, rule 3.300 [not mentioning reply].) FCGMA
19 respectfully requests that the Court strike the entirety of Section B of Petitioner’s CMS.
20 C. Continued Delay Harms FCGMA’s Ability to Carry Out Its Statutory Duties.
21 The Sustainable Groundwater Management Act (“SGMA”) requires FCGMA to manage
22 the Las Posas Valley Groundwater Basin pursuant to a Groundwater Sustainability Plan (“GSP”).
23 (Wat. Code, § 10720.7.) SGMA authorizes FCGMA to control groundwater extractions and
24 impose fees. (Wat. Code, §§ 10726.4, 10730.) FCGMA adopted the Allocation Ordinance that is
25
26 3
As previously stated above, because Petitioner is challenging FCGMA’s adoption of the
Allocation Ordinance pursuant to a CEQA exemption, the size of the record will be quite limited,
27
and Petitioner has made no showing whatsoever that would support a claim that the size of the
28 record would be sufficiently burdensome to warrant any further extension.
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FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
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LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714
115391898.3 0041862- 00006
1 the subject of this litigation for the purposes of sustaining groundwater management under SGMA.
2 (See Verified Petition for Writ of Mandate and Complaint for Declaratory Relief, Injunctive, Relief,
3 and Damages, Case No. 21CV03714, Ex. A.)
4 Respectfully, if Petitioner wishes to litigate the validity of the Allocation Ordinance, it may
5 do so. If Petitioner is unwilling to timely litigate the merits of its case, it should request a dismissal.
6 What Petitioner may not do is strategically delay the proceedings in this case, including the
7 fundamental step of preparing the administrative record, to the detriment of FCGMA (and multiple
8 incidentally affected third parties), which agency is responsible for the maintenance of the basin
9 and implementation of the now approved GSP.4 (Cf. Association for Sensible Development at
10 Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289, 1293 [“the policy behind
11 section 21167.4 is to ensure that mandate proceedings challenging environmental approvals are
12 conducted expeditiously and squarely places the burden on the challenger to tender its claim for
13 resolution at an early point in the proceedings or lose it altogether.”]; County of Orange, supra, 113
14 Cal.App.4th at p. 12 [“[t]he Legislature has obviously structured the legal process for a CEQA
15 challenge to be speedy, so as to prevent itfrom degenerating into a guerilla war of attrition by
16 which project opponents wear out project proponents.”].)
17 II. CONCLUSION
18 Accordingly, the Court should strike Petitioner’s CMS, including, specifically, Petitioner’s
19 improper request to stay these proceedings and record preparation in this case as well as the
20 procedurally improper reply to FCGMA’s response to Petitioner’s Notice of Related Case.
21 Dated: May 4, 2022 STOEL RIVES LLP
22
By:
23 Elizabeth P. Ewens
Timothy M. Taylor
24 Attorneys for Respondent and Defendant
Fox Canyon Groundwater Management Agency
25
26 4
The Department of Water Resources approved the Las Posas Valley Groundwater Basin GSP on
January 13, 2022. (See Letter from Paul Gosselin, Director for Sustainable Groundwater
27
Management, to Kimball Loeb, Plan Manager, dated January 13, 2022,
28 https://sgma.water.ca.gov/portal/service/gspdocument/download/5245.)
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ATTORNEYS AT LAW
FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
SACRAMENTO
LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714
115391898.3 0041862- 00006
1 DECLARATION OF SERVICE
2 I declare that I am over the age of eighteen years and not a party to this action. I am
employed in the City and County of Sacramento and my business address is 500 Capitol Mall,
3 Suite 1600, Sacramento, California 95814. On May 4, 2022, at Sacramento, California, I served
the attached document(s):
4 FOX CANYON GROUNDWATER MANAGEMENT
AGENCY’S OBJECTIONS AND REQUEST TO STRIKE LAS
5 POSAS BASIN WATER RIGHTS COALITION’S CASE
MANAGEMENT STATEMENT
6
on the following parties:
7
Peter A. Goldenring Attorneys for Petitioner and
8 Mark R. Pachowicz Plaintiff
PACHOWICZ GOLDENRING, PLC Las Posas Basin Water
9 6050 Seahawk St. Rights Coalition
Ventura, CA 93003-6622
10 805-642-6702
11 peter@gopro-law.com
12 Kevin M. O’Brien Attorneys for Petitioner and
Meredith E. Nikkel Plaintiff
13 Kelley M. Breen Las Posas Basin Water
Brian E. Hamilton Rights Coalition
14 Holly E. Tokar
15 DOWNEY BRAND LLP
621 Capitol Mall, 18th Fl
16 Sacramento, CA 95814
916-444-1000
17 kobrien@downeybrand.com
mnikkel@downeybrand.com
18 kbreen@downeybrand.com
19 bhamilton@downeybrand.com
cgermain@downeybrand.com (secretary)
20
BY FIRST CLASS MAIL: I am readily familiar with my employer’s practice for the collection and
processing of correspondence for mailing with the U.S. Postal Service. In the ordinary course of business,
21 correspondence would be deposited with the U.S. Postal Service on the day on which it is collected. On the
date written above, following ordinary business practices, I placed for collection and mailing at the offices of
22 Stoel Rives LLP, 500 Capitol Mall, Suite 1600, Sacramento, California 95814, a copy of the attached document
in a sealed envelope, with postage fully prepaid, addressed as shown on the service list.I am aware that on
23 motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is
more than one day after the date of deposit for mailing contained in this declaration.
24 BY EMAIL: On the date written above, I emailed a copy of the attached documents to the addressee, as shown
on the service list.
25 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this document was executed on May 4, 2022, at Sacramento,
26 California.
27
28 Dawn R. Forgeur, CCLS
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FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE
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115391898.3 0041862- 00006
Preview
1 ELIZABETH P. EWENS (SB #213046) ELECTRONICALLY FILED elizabeth.ewens@stoel.com Superior Court of California 2 TIMOTHY M. TAYLOR (SB #144335) County of Santa Barbara tim.taylor@stoel.com Darrel E. Parker, Executive Officer 3 JANELLE S.H. KRATTIGER (SB #299076) 5/4/2022 3:48 PM janelle.krattiger@stoel.com By: Terri Chavez, Deputy 4 HERACLIO PIMENTEL (SB #326751) heraclio.pimentel@stoel.com 5 STOEL RIVES LLP 500 Capitol Mall, Suite 1600 6 Sacramento, CA 95814 Telephone: 916.447.0700 7 Facsimile: 916.447.4781 8 TIFFANY N. NORTH (SB #228068) County Counsel 9 JASON T. CANGER (SB #296596) County Counsel 10 jason.canger@ventura.org 800 South Victoria Avenue, L/C #1830 11 Ventura, CA 93009-1830 Telephone: 805.654.2590 12 Facsimile: 805.654.2185 13 Attorneys for Respondent and Defendant EXEMPT FROM FILING FEES Fox Canyon Groundwater Management Agency GOV. CODE, § 6103 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 COUNTY OF SANTA BARBARA 17 LAS POSAS BASIN WATER RIGHTS CASE NO. 21CV03714 COALITION, an unincorporated association, 18 FOX CANYON GROUNDWATER Petitioner and Plaintiff, MANAGEMENT AGENCY’S 19 OBJECTIONS AND REQUEST TO STRIKE v. LAS POSAS BASIN WATER RIGHTS 20 COALITION’S CASE MANAGEMENT FOX CANYON GROUNDWATER STATEMENT 21 MANAGEMENT AGENCY, a public entity, 22 Respondent and Defendant. 23 Action Filed: September 17, 2021 Trial Date: Not set. 24 25 26 27 28 S TOEL R IVES LLP -1- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006 1 Respondent and Defendant Fox Canyon Groundwater Management Agency (“FCGMA”) 2 hereby submits the included Objections and Request to Strike Las Posas Basin Water Rights 3 Coalition’s Case Management Statement, filed April 22, 2022. Petitioner and Plaintiff, Las Posas 4 Basin Water Rights Coalition’s (“Petitioner”) Case Management Statement (“CMS”) improperly 5 requests a stay of proceedings in this case until the conclusion of the adjudication proceedings in a 6 separate lawsuit, Santa Barbara Superior Court, case no. VENCI00509700 (the “Adjudication 7 Action”). Petitioner’s CMS also improperly responds to FCGMA’s objection and response to 8 Petitioner’s Notice of Related Case, submitted April 8, 2022. Petitioner’s CMS should therefore 9 be stricken on procedural and substantive grounds. 10 Through Petitioner’s CMS, it seeks an extraordinarily prolonged, open-ended, and 11 indefinite stay of these proceedings. If Petitioner is unwilling or unable to timely litigate the merits 12 of the case that it filed as required by the statute, then Petitioner instead should request a dismissal 13 of its claims. 14 I. ARGUMENT 15 A. Petitioner’s Request to Stay Proceedings in this Case Until Conclusion of the Adjudication Action Is Improper and Should Be Stricken. 16 1. Petitioner’s request to indefinitely stay the hearing date is 17 procedurally improper and substantively without merit. 18 By design, the Legislature intended proceedings, or portions of proceedings, brought 19 pursuant to the California Environmental Quality Act (“CEQA”) (Public Resources Code 20 section 21000 et seq.1), to be processed expeditiously. Indeed, section 21167.1(a) directs that “all 21 courts in which the action or proceeding is pending shall give the action or proceeding preference 22 over all other civil actions, in the matter of setting the action or proceeding for hearing or trial, 23 and in hearing or trying the action or proceeding, so that the action or proceeding shall be quickly 24 heard and determined.” (Emphasis added.) Further, when joined causes of action exist CEQA 25 specifically enables courts to grant severance of the actions in furtherance of the overarching 26 mandate for preference. (Pub. Resources Code, § 21187.1(c).) 27 1 Unless otherwise specifically noted, all subsequent statutory references shall be to the California 28 Public Resources Code. S TOEL R IVES LLP -2- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006 1 Yet, there is more. In comparison to the pace of other civil litigation matters, the rapidity 2 ingrained in CEQA requires petitioners to request a hearing within 90 days of filing the petition, 3 (section 21167.4(a)), following which courts must then establish a briefing schedule and hearing 4 date. (Pub. Resources Code, § 21167.4(c).) Petitioner’s request to indefinitely stay the proceedings 5 in this case is procedurally improper. 6 Petitioner’s unorthodox request is also substantively meritless. CEQA requires that, absent 7 good cause, briefing in a CEQA action be completed within 90 days from the date a hearing request 8 is filed, and that such hearing be held within 30 days thereafter, to the extent feasible. (Pub. 9 Resources Code, § 21167.4(c).) “Good cause may include, but shall not be limited to, the conduct 10 of discovery, determination of the completeness of the record of proceedings, the complexity of the 11 issues, and the length of the record of proceedings and the timeliness of its production.” (Ibid.) 12 Section 21167.4(c)’s inclusion of a “good cause” requirement confirms that deviation from 13 the statutorily prescribed timeline is reserved for exceptional circumstances. (See Nacimiento 14 Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 15 122 Cal.App.4th 961, 968 [“[t]the legislature thus plainly intended that a CEQA challenge be heard 16 within 210 days of commencement, or roughly seven months, absent exceptional circumstances” 17 (emphasis added)]; see, generally, People v. Accredited Surety Casualty Co. (2014) 230 18 Cal.App.4th 548, 559 [noting that the California Supreme Court has adopted general principles 19 about good cause requirements including that “good cause may be equated to a good reason for a 20 party’s failure to perform that specific requirement from which he seeks to be excused” (emphasis 21 added)].) Petitioner has not alleged any specific grounds nor any “exceptional circumstances” that 22 render the timely prosecution of this case infeasible. Petitioner’s complete speculation that an 23 interim and still incomplete phase in the separate adjudication might affect future agency 24 rulemaking in the basin prior to a final judgment is not good cause to indefinitely stay the 25 proceedings in this case, potentially for several years, until the Adjudication Action comes to a final 26 conclusion. (See Petitioner’s CMS, at pp. 3-4.) Thus, there are no justifiable grounds for deviating 27 from CEQA’s carefully crafted mandates. (See also, infra, section I.C.) 28 For each of these reasons, Petitioner’s unilateral request to indefinitely stay the proceedings S TOEL R IVES LLP -3- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006 1 in this case via its CMS is substantively and procedurally inappropriate, and all relevant references 2 in Petitioner’s CMS should be stricken. 3 2. Petitioner’s request to indefinitely stay the preparation of the record is procedurally improper and substantively deficient. 4 5 The statutorily prescribed time limit to prepare and certify the record “may be extended only 6 upon the stipulation of all parties who have been properly served . . . or upon order of the court.” 7 (Pub. Resources Code, § 21167.6(c), emphasis added.) 8 Petitioner has elected to prepare the record per section 21167.6(b)(2), and FCGMA has 9 thrice stipulated to extend the statutory period as a professional courtesy. Via its most recent 10 stipulation, FCGMA has made clear to Petitioner that no further delay in preparing the record is 11 warranted under the circumstances of this case.2 Petitioner, nonetheless, improperly requests in its 12 CMS that this Court further delay preparation of the record until the distant unknown date on which 13 the Adjudication Action concludes. (Petitioner’s CMS, at p. 4.) A party’s unilateral request in a 14 CMS for an order to extend indefinitely the mandatory time limits in section 21167.6 is neither 15 appropriate nor permissible. (See Pub. Resources Code, § 21167.6(c) [providing for extension only 16 by stipulation or court order].) If the legislature had intended to give parties indefinite and 17 unlimited amounts of time to prepare a record they elected to prepare, and limitless time to 18 prosecute a case they voluntarily chose to file, it could have expressly stated so. (See, e.g., 19 section 21167.4(a) [permitting dismissal of petition “on the court’s own motion or on the motion 20 of any party interested in the action or proceeding.”].) To the contrary, the legislature chose to 21 direct parties and the court to conduct proceedings in an expeditious manner. (Cf. Comunidad en 22 Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132 [“The requirement for 23 2 24 These circumstances include, but are not necessarily limited to: a) the fact that this is a case contesting the lead agency’s (FCGMA) determination that the contested action was subject to a 25 CEQA exemption, and as such the administrative record will necessarily be considerably smaller than had FCGMA prepared a substantive environmental document, whether a mitigated negative 26 declaration or an environmental impact report; and b) that by such date as agreed to via the third stipulation dated April 12, 2022, Petitioner will have had 269 days, including 180 days of 27 extensions, to prepare the record, from the date of filing of the underlying petition/complaint in 28 this matter. S TOEL R IVES LLP -4- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006 1 expeditious review of CEQA claims [] is well established.”].) Petitioner’s unilateral request to 2 extend the statutory period for preparing the record is therefore procedurally improper, and the 3 request should be stricken. 4 Petitioner’s request is also substantively deficient. Section 21167.6(c) provides in part that 5 “no single extension shall exceed 60 days unless the court determines that a longer extension is in 6 the public interest.” “Courts have often noted the Legislature’s clear determination that ‘the public 7 interest is not served unless CEQA challenges are promptly filed and diligently prosecuted.’” 8 (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500.) “Indeed, 9 the time limits for compilation of the administrative record in subdivisions (b) and (c) of 10 section 21167.6 are a manifestation of the same focus on the value of time.” (County of Orange v. 11 Superior Court (2003) 113 Cal.App.4th 1, 12 (“County of Orange”).) 12 Petitioner alludes to the issues in the Adjudication Action that could “potentially” moot this 13 case. (Petitioner’s CMS, at p. 4.) Yet, Petitioner fails to articulate how the indefinite delay 14 resulting from an open-ended extension of Petitioner’s time to prepare the record serves the public 15 interest. (See Pub. Resources Code, § 21167.6(c).) The CEQA portion of this case attacks the 16 Allocation Ordinance on procedural grounds. Indefinitely delaying resolution of this case because 17 the Adjudication Action may “potentially” moot this action does not serve the public interest. It is 18 plainly in the public interest to have a certified record and avoid further delay of the proceedings 19 in this case so that there is legal certainty surrounding the challenged allocation ordinance that is 20 currently in effect. (Cf. County of Orange, supra, 113 Cal.App.4th at p. 12; see also, infra, 21 section I.C.) 22 3. FCGMA may prepare the record if Petitioner refuses to do so. 23 Section 21167.6(b)(2) allows, but does not require, Petitioner to prepare the record in this 24 case. Petitioner has elected to do so. Explicit in this right is that Petitioner prepare the record 25 “within the time limit specified in [subdivision (b)(1)],” (section 21167.6(b)(2)), and subject to 26 reasonable extensions only “when the size of the record of proceedings renders infeasible 27 28 S TOEL R IVES LLP -5- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006 1 compliance with that time limit.” (Pub. Resources Code, § 21167.6(b)(2)3.) Petitioner’s improper 2 request for this Court to indefinitely stay preparation of the record demonstrates Petitioner’s lack 3 of intent to comply with Petitioner’s elected duty under the statute to proceed with timely 4 preparation. In the event of Petitioner’s inaction or unwillingness to prepare the record within the 5 time limits mandated by statute, FCGMA should be allowed to fulfill this requirement. (See San 6 Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 643 7 [“[Petitioner]’s right to prepare the record is subject to a 60-day limitation. Having unreasonably 8 delayed, it forfeited that right.”]; Id. at p. 644 [“[t]he [defendant] District has the right to a timely 9 record.”].) 10 B. Petitioner’s CMS Is an Improper Reply to FCGMA’s Objection To Petitioner’s Notice Of Related Case. 11 12 On April 8, 2022, Petitioner belatedly filed a Notice of Related Case. Pursuant to California 13 Rules of Court, rule 3.300(g), FCGMA submitted a response and objection to the untimely Notice 14 of Related Case. Only thereafter did Petitioner take the unorthodox step of replying to FCGMA’s 15 response in Petitioner’s CMS. (See Petitioner’s CMS, at pp. 5-6.) California Rules of Court, 16 rule 3.300 does not extend to Petitioner any right to file a reply to FCGMA’s response, and even if 17 it did, it is procedurally unorthodox and inappropriate for Petitioner to imbed such a reply in its 18 CMS. (See, generally, Cal. Rules of Court, rule 3.300 [not mentioning reply].) FCGMA 19 respectfully requests that the Court strike the entirety of Section B of Petitioner’s CMS. 20 C. Continued Delay Harms FCGMA’s Ability to Carry Out Its Statutory Duties. 21 The Sustainable Groundwater Management Act (“SGMA”) requires FCGMA to manage 22 the Las Posas Valley Groundwater Basin pursuant to a Groundwater Sustainability Plan (“GSP”). 23 (Wat. Code, § 10720.7.) SGMA authorizes FCGMA to control groundwater extractions and 24 impose fees. (Wat. Code, §§ 10726.4, 10730.) FCGMA adopted the Allocation Ordinance that is 25 26 3 As previously stated above, because Petitioner is challenging FCGMA’s adoption of the Allocation Ordinance pursuant to a CEQA exemption, the size of the record will be quite limited, 27 and Petitioner has made no showing whatsoever that would support a claim that the size of the 28 record would be sufficiently burdensome to warrant any further extension. S TOEL R IVES LLP -6- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006 1 the subject of this litigation for the purposes of sustaining groundwater management under SGMA. 2 (See Verified Petition for Writ of Mandate and Complaint for Declaratory Relief, Injunctive, Relief, 3 and Damages, Case No. 21CV03714, Ex. A.) 4 Respectfully, if Petitioner wishes to litigate the validity of the Allocation Ordinance, it may 5 do so. If Petitioner is unwilling to timely litigate the merits of its case, it should request a dismissal. 6 What Petitioner may not do is strategically delay the proceedings in this case, including the 7 fundamental step of preparing the administrative record, to the detriment of FCGMA (and multiple 8 incidentally affected third parties), which agency is responsible for the maintenance of the basin 9 and implementation of the now approved GSP.4 (Cf. Association for Sensible Development at 10 Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289, 1293 [“the policy behind 11 section 21167.4 is to ensure that mandate proceedings challenging environmental approvals are 12 conducted expeditiously and squarely places the burden on the challenger to tender its claim for 13 resolution at an early point in the proceedings or lose it altogether.”]; County of Orange, supra, 113 14 Cal.App.4th at p. 12 [“[t]he Legislature has obviously structured the legal process for a CEQA 15 challenge to be speedy, so as to prevent itfrom degenerating into a guerilla war of attrition by 16 which project opponents wear out project proponents.”].) 17 II. CONCLUSION 18 Accordingly, the Court should strike Petitioner’s CMS, including, specifically, Petitioner’s 19 improper request to stay these proceedings and record preparation in this case as well as the 20 procedurally improper reply to FCGMA’s response to Petitioner’s Notice of Related Case. 21 Dated: May 4, 2022 STOEL RIVES LLP 22 By: 23 Elizabeth P. Ewens Timothy M. Taylor 24 Attorneys for Respondent and Defendant Fox Canyon Groundwater Management Agency 25 26 4 The Department of Water Resources approved the Las Posas Valley Groundwater Basin GSP on January 13, 2022. (See Letter from Paul Gosselin, Director for Sustainable Groundwater 27 Management, to Kimball Loeb, Plan Manager, dated January 13, 2022, 28 https://sgma.water.ca.gov/portal/service/gspdocument/download/5245.) S TOEL R IVES LLP -7- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006 1 DECLARATION OF SERVICE 2 I declare that I am over the age of eighteen years and not a party to this action. I am employed in the City and County of Sacramento and my business address is 500 Capitol Mall, 3 Suite 1600, Sacramento, California 95814. On May 4, 2022, at Sacramento, California, I served the attached document(s): 4 FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE LAS 5 POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT 6 on the following parties: 7 Peter A. Goldenring Attorneys for Petitioner and 8 Mark R. Pachowicz Plaintiff PACHOWICZ GOLDENRING, PLC Las Posas Basin Water 9 6050 Seahawk St. Rights Coalition Ventura, CA 93003-6622 10 805-642-6702 11 peter@gopro-law.com 12 Kevin M. O’Brien Attorneys for Petitioner and Meredith E. Nikkel Plaintiff 13 Kelley M. Breen Las Posas Basin Water Brian E. Hamilton Rights Coalition 14 Holly E. Tokar 15 DOWNEY BRAND LLP 621 Capitol Mall, 18th Fl 16 Sacramento, CA 95814 916-444-1000 17 kobrien@downeybrand.com mnikkel@downeybrand.com 18 kbreen@downeybrand.com 19 bhamilton@downeybrand.com cgermain@downeybrand.com (secretary) 20 BY FIRST CLASS MAIL: I am readily familiar with my employer’s practice for the collection and processing of correspondence for mailing with the U.S. Postal Service. In the ordinary course of business, 21 correspondence would be deposited with the U.S. Postal Service on the day on which it is collected. On the date written above, following ordinary business practices, I placed for collection and mailing at the offices of 22 Stoel Rives LLP, 500 Capitol Mall, Suite 1600, Sacramento, California 95814, a copy of the attached document in a sealed envelope, with postage fully prepaid, addressed as shown on the service list.I am aware that on 23 motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing contained in this declaration. 24 BY EMAIL: On the date written above, I emailed a copy of the attached documents to the addressee, as shown on the service list. 25 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this document was executed on May 4, 2022, at Sacramento, 26 California. 27 28 Dawn R. Forgeur, CCLS S TOEL R IVES LLP -8- ATTORNEYS AT LAW FOX CANYON GROUNDWATER MANAGEMENT AGENCY’S OBJECTIONS AND REQUEST TO STRIKE SACRAMENTO LAS POSAS BASIN WATER RIGHTS COALITION’S CASE MANAGEMENT STATEMENT -- 21CV03714 115391898.3 0041862- 00006