Court of Appeal - Third District

W W r I F|LEDCOURT OF APPEAL OF THE STATE OF CALIFORNIA

APPELLATE DISTRICT F eb 24 2Q14

D eena C. Fawcett, Clerk/Administrator

Case No. C074506 By: TVoss, Deputy Clerk

PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS,Plaintiff and Appellant,

v.

EDMUND G* BROWN, Jr., as Governor, etc., et al., Defendants and Respondents;

NP FRESNO LAND ACQUISITIONS LLC,Real Party in Interest and Respondent

Appeal from Sacramento County Superior Court Case No. 34201280001326CUWMGDS

Honorable Michael P., Kenney, Presiding.

RESPONDENT’S BRIEF

Ronald W. Beals, Chief Counsel Jeanne Scherer, Deputy Chief Counsel

David H. McCray, Assistant Chief Counsel (SBN 169113) Brandon S. Walker (SBN 254581)

Department of Transportation, Legal Division 1120 N Street (MS 57), P.O. Box 1438

Sacramento, CA 95812-1438 Telephone: (916) 654-2630 Facsimile: (916) 654-6128

Attorneys for Defendant and Respondent, CALIFORNIA DEPARTMENT OF TRANSPORTATION

TO BE FILED IN THE COURT OF APPEAL APP-008

COURT O F APPEAL, Third APPELLATE DISTRICT, DIVISIONCourt of Appeal Case Number:

C074506ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):

BRANDON S. WALKER, SBN 254581 DEPARTMENT OF TRANSPORTATION 1120 N STREET (MS-57)P.O. BOX 1438

TELEPHONE NO.: 916-654-2630 FAX NO. (Options!): 916-654-6128E-MAIL ADDRESS (Optional):

ATTORNEY FOR (Nam e): DEPARTMENT OF TRANSPORTATION

Superior Court Case Number

34201280001326FOR COURT USE ONL Y

APPELLANT/PETITIONER: Picayune Rancheria of Chukchansi Indians

RESPONDEN T/REAL PARTY IN INTEREST: Edmund G. Brown; NP Fresno Land Acauisitions LLC, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): f~ x 1 INITIAL CERTIFICATE "f~ ~ l SU PPLEM ENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the Initial certificate in an appeal when you fjle your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional Information that must be disclosed.

1. This form is being submitted on behalf of the following party (name):s t a te o£ California. Department of transportation

2. a. 1 x 1 There iare no interested entities or persons that must be listed in this certificate under rule 8.208. b. I I Interested entities or persons required to be listed under rule 8.208 are a s follows:

Full name of interested entity or person

Nature of interest {Explain):

(D(2)

(3)

(4)

(5)

{ 1 Continued on attachment 2.

The undersigned certifies that the above-listed persons or entitles (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership Interest of 10 percent or more In the party If it Is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 6.208(e)(2).

Date: 2 / 2 4 / 1 4

Brandon S. Walker.(TYPE OR PRINT NAME) OR ATTORNEY)

P«fl< 1 of 1Form Approved tor Optional Use

JutfidaJ Council ol California APP-008 [Rev. January 1.2009)

CERTIFICATE OF INTERESTED ENTITIES OR PERSONSSol

Cal. Rules o< Court, rules 8.208,8.488

S'

TABLE OF CONTENTS

Page

Table of Contents............................................................................................... i

Table of Authorities ................... ii

I. INTRODUCTION............................ .................... ................ ................ 1

II. STATEMENT OF THE CASE......................................................... .....2

A. Procedural History ................... 2

B. Statement of Facts................................... 3

C. Issue Presented and Standards of Review............................. 3

III. DISCUSSION.................................... 4

A. Caltrans’ demurrer was properly sustained because the petition is irreparably defective on its face............................... 4

B. Appellant cannot maintain its lawsuit against Caltrans because Caltrans is merely a potentially responsible agency that has not taken any final action approving a project...................... 6

1. A responsible agency is not a proper respondent unless it approved a project, which Caltrans has not done.....................6

2. No authority supports Appellant’s position that Caltrans can be enjoined as a potentially responsible agency ..... 8

3. CEQA prescribes the notification of responsible agencies and the ability to sue a responsible agency once a cause of action against that responsible agency becomes ripe ............... 11

IV. CONCLUSION ...... 13

Certificate of Word Count......................................................... v.»................... 14

Proof of Service 15

TABLE OF AUTHORITIES

Cases Pages

Blank v. Kirwan(1985) 39 Cal.3d311,3 1 8 ........................................................................... 4

Bozung v. LAFCO of Ventura County(1975) 13 Cal.3d 263,270 ................ 9

Buller v. Sutter Health(2008) 160 Cal.App.4th 981,985-986........................................................4

California Water Impact Network v. Newhall County Water DisL(2008) 161 Cal.App.4th 1464,1488-1489 ..................................................5

Citizens Task Force On Sohiov. Board o f Harbor Comrs.(1979) 23 Cal.3d 812, 814...................... ,............. 7

Citizens to Preserve the Ojai v. County o f Ventura(1985) 176 Cal.App.3d 421 10

City o f Sacramento v. State Water Resources Control BcL(1992) 2 Cal.App;4th 960,976 12

Dierkes v. City o f Los Angeles(1945) 25 Cal.2d 938, 946............................... 9

Donaldson v. Nat* Marine, Inc.(2005) 35 Cal.4th 503,512 ..................... 5

Evans v. City o f Berkeley(2006) 38 Cal.4th 1 ,6 ....... 4

Friends o f Cuyamaca Valley v. Lake Cuyamaca Recreation & Park DisL(1994) 28 Cal.App.4th 419,429.................................. 7

Heninger v. Board o f Supervisors(1986) 186 Cal.App.3d 601 ................................................................. 9

Honey Baked Hams, Inc* v. Dickens(1995) 37 Cal.App.4tti 421, 427..................................................... 9

Housing Group v. United Nat. Insurance Co.(2001) 90 Cal.App.4th 1106, 1113-1115.................................................. 5

Korean Philadelphia Presbyterian Church v. California Presbytery(2000) 77 Cal.App.4th 1069.................................................................... 12

Riverwatch v. Olivenhdin Mun. Water DisL(2009) 170 Cal.App.4th 1186 ...... .......................................8

San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713 .... ....................... 10

Santisas v. Goodin(1998) 17 Cal.4th 599, 614, fn. 8 ............................................................. 9

Statutes Pages

CEQA Guidelines

Section 15002, subdivision (a).............. 3Section 15091....,..............................................................................................6Section 15121, subdivision (a).......................................................................11Section 15260 et seq..........................................................................................8Section 15300 et seq...................... .............. 8

California Constitution

Article VI, section 10................................ ......1,5

Code of Civil Procedure

Section 430.10, subdivision (a)(e).................... 4Section 430.30, subdivision (a)....................................................................... 4Section 526, subdivision (a)(3)......................................................................12Section 1085......................................................................................................5Section 1086....................................................................................................11

Evidence Code

Section 664.......................................... 12

iii

Public Resources Code

Section 21000.................................................................................... ..............1Section 21065, subdivision (b)(c)............. 10Section 2 1 0 6 9 ..... ............................... ............... 10Section 21080.3............................................... 6,7Section 21080.4.............................................................................................6,8Section 21081.6.................................... ........................................................ 6,8Section 21104 ................................. 6,7Section 21153 ....... 6,7Section 21167................................................................................................. 12Section 21167.3.............................................................................................. 10Section 21167.6.5................................ 10Section 21167.6.5, subdivision ( a ) ............................................ 10Section 21167.6.5, subdivision (b)............. ........................ .........................11Section 21167.6.5, subdivision (c)........................................................... 10,11Section 21168.5.... ..... 5,7,9,12Section 21168.9, subdivision (a)(2)................. 10Section 21177...... ................. vv.v. . ................ 5

Streets and Highway Code

Section 670 i.......................................................................................... 3

Misc.

1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont. Ed. Bar 2nd ed. 2008)... .............. 5,6,7,10

1 California Administrative Mandamus(Cont. Ed.Bar 3d ed. 2003).................................................. 7

I. INTRODUCTION

As part of its efforts to challenge the North Fork Rancheria of Mono

Indians Tribe’s construction of a casino/resort hotel complex, Appellant

Picayune Rancheria of Chukchansi Indians (“Appellant”) seeks an

injunction against the California Department of Transportation (“Caltrans”)

under the California Environmental Quality Act (“CEQA”), Public

Resources Code section 21000 et seq, without articulating a justiciable

cause of action against Caltrans. (J. Appen., p. 63.) After providing

Appellant ample opportunity to cure defects in its pleadings, the superior

court sustained Caltrans’ demurrer without leave to amend, finding that the

petition contained no justiciable cause of action against Caltrans. (J.

Appen., p. 783.)

Appellant is now appealing, in part, the superior court’s order

sustaining Caltrans* demurrer without leave to amend. This appeal, in

relation to Caltrans, centers on, whether or not the court has the jurisdiction

to enjoin Caltrans - a potentially responsible agency.

Although Appellant must demonstrate that there is a justiciable

cause of action against Caltrans, it does not. Instead, Appellant argues,

without supporting authority, that the court nonetheless can and should

enjoin a potentially responsible agency that has not violated CEQA or that

has not taken a final action that can be challenged. Such action by the court

would exceed the California Constitution’s conferral to the courts of

jurisdiction over “causes.” (Cal. Const., art. VI, § 10.)

Since it is undisputed that the petition is defective, the court must

affirm the trial court’s decision to sustain Caltrans’ demurrer.

n . STATEMENT OF THE CASE

A. Procedural History

On November: 30, 2012, Appellant filed a petition for writ of

mandate and comjplaint seeking a writ of mandate ordering the Governor to

set aside a concurrence letter he sent to the Secretary of the Interior in

relation to the casino/hotel resort complex. (J. Appen., p. 77.) The

operative first amended petition for writ of mandate and complaint

(“Petition”) was filed on December -21* 2012. (J. Appen., p. 63.) Despite

failing to articulate any alleged CEQA violation by Caltrans, the Petition

sought an injunction to prevent Caltrans “from approving any activities

related to the siting, construction, or operation of the proposed casino/hotel

resort at the Madera Site, or taking any actions in support thereof, until the

casino/hotel resort has been subject to legally sufficient CEQA review.”

Caltrans demurred on January 15, 2013, because the Petition failed

to state sufficient facts to constitute a cause of action against Caltrans and

the court lacked subject matter jurisdiction over any potential claims

against Caltrans due to their unripeness and the Appellant’s failure to

exhaust its administrative remedies for those unripe claims. (J. Appen., p.

122.) The trial court sustained Caltrans’ demurrer in its ruling on May 29,

2013, finding: “At most, the Petition and complaint alleges that [Caltrans]

may intend to take some action in the future that would be subject to CEQA

. . . . Any claims petitioner based on these anticipated future actions are not

yet ripe, as the Petition and complaint does not allege that any such action

has occurred.” (J. Appen., p. 783.) The court then formally entered its

order sustaining the demurrer without leave to amend and dismissing the

action on June 6,2013. (J. Appen., p. 787.)

Appellant filed a Notice of Appeal on August 5, 2013, asking this

Court to.reverse the trial court’s judgment. (J. Appen., p. 901.)

2

B. Statement of Facts

Caltrans “is responsible for approving alterations or improvements

to California’s highways, including State Route 99.” (J, Appen., p. 65.)

Caltrans’ approval authority is carried out through the encroachment permit

process outlined in Streets and Highways Code section 670 et seq.

The Petition alleges that “[t]he North Fork Tribe seeks to develop a

casino/hotel resort on approximately 305 acres of presently off-reservation

land in Madera County, California (the ‘Madera Site’).” (I. Appen., p. 67.)

As part of the approval process for this resort, the United States Department

of the Interior finalized an Environmental Impact Statement (“EIS”) under

the National Environmental Policy Act. (Id. at p. 70.) In relevant part, the

EIS found that “[t]raffic generated by the casino/hotel resort complex could

cause unacceptable levels of service with respect to five freeway segments,

one roadway segment, and ten intersections.” (Ibid.) To address those

traffic impacts, the EIS committed the North Fork Tribe to “place funds ‘in

an escrow account for use by the governmental entity with jurisdiction over

the road to be improved so that the entity may design ..., obtain

approval/permits for, and construct the recommended road

improvement....’” (Ibid.) This is the extent of the alleged facts relevant to

Caltrans contained in the Petition.

C. Issue Presented and Standards of Review

This appeal presents the following issue in relation to Caltrans:

A court does not have the power nor the authority to enjoin a party unless sufficient facts are pled that constitute a cause of action, over which the court has the subject matter jurisdiction to adjudicate. Appellant seeks an injunction against Caltrans without articulating a justiciable cause of action against it. Can the court enjoin Caltrans?

3

Long-settled rules guide the review of a demurrer. (Blank v. Kirwan

(1985)39 Cal.3d 311, 318 [216 Cal.Rptr. 718].) The court treats the

demurrer as admitting all material facts properly pleaded* but not

contentions, deductions or conclusions of fact or law. (Evans v. City o f

Berkeley (2006) 38 Gal.4th 1, 6 [40 Cal.Rptr.3d 205]; Buller v. Sutter

Health (2008) 160 Cal.App.4th 981, 985-986 [74 Cal.Rptr.3d 47].) The

court also considers matters which may be judicially noticed. (Blank v.

Kirwan, supra, 39 Cal.3d at p. 318.) When the demurrer is sustained

without leave to amend, the reviewing court, “decides whether there is a

reasonable possibility that the defect can be cured by amendment: If it can

be, the trial court has abused its discretion and [the reviewing court]

reverse[s]; if not, there has been no abuse of discretion and [the court]

affirm[s]. [Citations.] The burden of proving such reasonable possibility is

squarely on the plaintiff. [Citation.]” (Ibid.)

III. DISCUSSION

A» Caltrans’ demurrer was properly sustained because the petition is irreparably defective on its face.

A demurrer may be made whenever a ground for objection appears

on the face of the pleading. (Code Civ. Proc., § 430.30, subd. (a).) The

lack of subject matter jurisdiction and the failure to state facts sufficient to

constitute a cause of action are appropriate grounds for objection. (Code

Civ. Proc., § 430.10, subds. (a) & (e).) Caltrans’ demurrer objected to the

Petition’s inclusion of Caltrans as a defendant and respondent on these

grounds. Specifically, the Petition does not allege that Caltrans is

4

proposing to carry out a highway project, reviewing an encroachment

permit application, or considering any other action that would constitute a

project under CEQA, Nor does the Petition allege that Caltrans took a Final

action on any project that would constitute project approval or that the

Appellant has exhausted its administrative remedies in relation to any final

action by Caltrans.

Similarly, the Opening Brief does not contend that Caltrans violated

CEQA, that Caltrans has taken a final action that can be challenged, or that

Appellant exhausted its administrative remedies in relation to an action by

Caltrans. Such allegations are necessary to challenge Caltrans* objections

and provide the court with the jurisdiction to adjudicate a matter involving

Caltrans. (Cal. Const., art. VI, § 10 (conferring original jurisdiction upon

superior courts in mandamus or prohibition proceedings and all other

causes); Code of Civ. Proc., § 1085 (authorizing the issuance of a writ to

compel the performance of an act required by law); Pub. Resources Code,

§ 21168.5 (authorizing an action or proceeding to attack, review, set aside,

void or annul a determination, finding, or a decision of a public agency on

the grounds of noncompliance with CEQA); Pub. Resources Code, § 21177

(limiting the ability to bring a CEQA lawsuit to only those who presented

information to the respondent agency); California Water Impact Network v.

Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1488-1489 [75

Cal.Rptr.3d 393, 410]; Donaldson v. Nat. Marine, Inc. (2005) 35 Cal.4th

503, 512 [25 Cal.Rptr.3d 584]; Housing Group v. United Nat. Insurance

Co. (2001) 90 Cal.App.4th 1106, 1113-1115 [109 Cal.Rptr.2d 497]

(discussing the existence of subject matter jurisdiction by referring to a

“justiciable controversy”) 2 Kostka & Zischke, Practice Under the Cal.

Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008) § 23.110, pp. 1252-

1253.)

5

Since the demurrer’s grounds for objection are not disputed, they

will not be belabored in this brief. But these objections show that the

petition is facially defective as to any claims against Caltrans, the courts do

not have jurisdiction over a matter involving Caltrans, and the trial court’s

decision sustaining Caltrans’ demurrer should be affirmed.

B. Appellant cannot maintain its lawsuit against Caltrans because Caltrans is merely a potentially responsible agency that has not taken any final action approving a project

Instead of demonstrating how it can cure the defects in its petition,

Appellant asserts that the requirement that a petition state a justiciable

cause of action is misplaced because of an alleged misunderstanding of

Caltrans’ role. (Opening Brief, p. 420 Caltrans’ role, given the alleged

facts, is as a potentially responsible agency.1 It is unclear what

misunderstanding exists in relation to this role, but any misunderstanding

Appellant may have does not justify ignoring jurisdictional and pleading

requirements.

1. A responsible agency is not a proper respondent unless it approved a project, which Caltrans has not done.

Responsible agencies have two different sets of duties. First, they

timely respond to lead agency requests for information or comments at

various stages of the CEQA process. (1 Kostka & Zischke, Practice Under

the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008) § 3.19,

pp. 123-124.) The second set of duties revolves around the responsible

agency’s role in approving or acting upon the project. (Ibid.) Any attempt

1 To date, Caltrans has not been asked to approve any portion of the casiho/hotel complex, nor has; a CEQA document been prepared, consultation requested, notice of the determination that environmental impact report provided, or a public comment period been initiated by a lead agency that may trigger a duty by Caltrans as a responsible agency. (See Pub. Resources Code, §§ 21080.3, 21080.4,21081.6, 21104 & 21153.)

6

to maintain a CEQA challenge against Caltrans for inaction as to the first

set of duties contradicts the law, particularly here where none of the duties

of a responsible agency were triggered.

The respondent in an administrative mandamus proceeding is “the

person or entity responsible for the final-decision under review. The statute

or ordinance setting forth the authority for the administrative proceeding

will generally identify the party with responsibility for the final

administrative decision or order ” (1 California Administrative Mandamus

(Cont.Ed.Bar 3d ed. 2003) § 8.1, p. 318.) Public Resources Code section

21168.5 authorizes actions or proceedings “to attack, review, set aside, void

or annul a determination, finding, or decision of a public agency . . . ”

Therefore, a responsible agency is not a proper respondent in an action

challenging a lead agency’s decision and compliance with CEQA.

(Citizens Task Force On Sohio v. Board o f Harbor Comrs, (1979) 23

Cal.3d 8i2, 814 [153 Cal.Rptr. 584] (reversing the joinder of a responsible

agency as an indispensible party even though the challenged document was

jointly prepared by the lead agency and the responsible agency); Friends o f

Cuyamaca Valley v. Lake Cuyamaca Recreation & Park Dist. (1994) 28

Cai.App.4th 419, 429 [33 Cal.Rptr.2d 635] (affirming the denial of the

petition brought against the responsible agency because CEQA compliance

is the responsibility of the lead agency).) The Petition and Appellant’s

arguments are in direct conflict with these legal tenets.

Additionally, until a lead agency initiates the environmental process,

Caltrans has no duty to take any action. (See 1 Kostka & Zischke, Practice

Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008)

§3.20, pp. 124-125 (summarizing a responsible agency’s role to react to

various actions taken by the lead agency).) Public Resources Code sections

21080.3, 21104 and 21153 each require the lead agency to consult with and

receive comments from all responsible agencies. None of these statutes

7

impose, ail affirmative duty on, responsible agencies. Public Resources

Code section 21080.4 states that - “[u]pon receipt of the notice” sent by the

lead agency - a responsible agency shall “specify to the lead agency the

scope and content of the environmental information that is germane to the

statutory responsibilities of that responsible agency [that] shall be included

in the environmental impact report.” If no notice is sent and received,

however, then there is no duty to provide the required information. Public

Resources Code section 21081.6 requires a responsible agency to provide

comments once a draft environmental impact report or negative declaration

has been released for public comment only if the responsible agency

identifies significant effects on the environment. But again as in this case,

if a draft environmental document has not been prepared and released for

comment, then, of course, the responsible agency has no duty or ability to

provide comments on that non-existent document.

It is possible for a responsible agency to take final agency actions

that approve portions of a project being analyzed or approved by a lead

agency, and thus can be named as a respondent. (See Riverwatch v.

Olivenhain Miin* Water Dist (2009) 170 Cal.App.4th 1186 [88 Cal.Rptr.3d

625].) But again, neither the Petition nor the Appellant’s Opening Brief

alleges facts that demonstrate that Caltrans took any such final actions.

And if no final action was taken, then Appellant’s administrative remedies

have not been exhausted. Therefore, the demurrer was properly sustained

and this court should affirm that decision.

2. No authority supports Appellant*s position that Caltrans can be: enjoined as a potentially responsible agency

Although Appellant acknowledges that Caltrans has not taken any

action that can be challenged, Appellant still asserts that Caltrans - as a

potentially responsible agency - can be enjoined. (Opening Brief, p. 43.)

The authority Appellant cites does not support this position.

8

In Heninger, the respondent county was the lead agency, the

respondent board of supervisors was the decision-making body of the lead

agency, and the other respondents were officials and offices of the lead

agency that would implement the lead agency’s decision. (See Heninger v.

Board o f Supervisors (1986) 186 Cal.App.3d. 601 [231 Cal.Rptr. 11].) A

lead agency is an appropriate respondent when the environmental analysis

is being challenged. (Pub. Resources Code, § 21168.5.) A decision­

making body is also an appropriate respondent when its decision is being

challenged. (Id.) Therefore, the county and the board of supervisors were

appropriate respondents in Heninger. But Heninger does not address the

propriety of naming the other county officials and offices as respondents.

Therefore, the case has no precedential value and provides no additional

guidance on this issue. (Honey Baked Hams, Inc. v. Dickens (1995) 37

Cal.App.4th 421, 427 [43 Cal.Rptr.2d 595], disapproved on a different

ground in Santisas v. Goodin (1998) 17 Cal.4th 599, 614, fn. 8 [71

Cal.Rptr.2d 830].) Other authority, however, indicates that those officials

and offices were not properly named as respondents. (See Dierkes v. City

o f Los Angeles (1945) 25 Cal.2d 938, 946 [156 P.2d 741] (holding that the

city officials who are not members of the city’s board of pension

commissioners, where the board is given exclusive control of the pension

fund in question, are not proper defendants).)

Although the portion of Bozung cited by Appellant is dicta, in that

case the City of Camarillo had petitioned the Local Agency Formation

Commission (LAFCO) to approve the city’s proposed annexation of land,

which was the subject of the CEQA challenge. (Bozung v. LAFCO o f

Ventura County (1975) 13 Cal.3d 263, 270 [118 Cal.Rptr. 249].) The city

then adopted an ordinance annexing the property after LAFCO approved

the proposal. (Ibid.) Since the city had taken a final action, it was a proper

respondent under Public Resources Code section 21168.5. Additionally,

9

the city proposed the annexation approved by the LAFCO and could be

considered a real party in interest, which is required to be named in a

CEQA challenge and is: explicitly subject to a court’s injunctive authority.

(See Pub; Resources Code, § 21167.6.5, subd. (a) & 21168.9, subd. (a)(2).)

The last two cases are those involving injunctions againstreal parties

in interest. (San Joaquin Raptor/Wildlife Rescue Center v. County o f

Stanislaus (1994) 27 Cal.App.4th 713 [32 Cal.Rptr.2d 704]; Citizens to

Preserve the Ojai v. County o f Ventura (1985) 176 Cal.App.3d 421 [222

Cal.Rptr. 247].) But a potentially responsible agency is not a real party in

interest.

A responsible agency carries out or approves a project. (Pub.

Resources Code, § 21069.) Under Public Resources Code section

21167.6.5, subdivision (c), a petitioner provides the responsible agencies

with notice of the CEQA proceeding, and the responsible agencies’ duties

are governed by Public Resources Code section 21167.3. Nothing in

CEQA contemplates a judicial action or the availability of injunctive relief

against a responsible agency that has not taken any final action. (See 2

Kostka & Zischke, Practice Under the Cal. Environmental Quality Act

(Cont.Ed.Bar 2d ed. 2008) §23.15, pp. 1151-1152.)

In comparison, under CEQA the real party in interest is the person

that is either undertaking the action supported by a public agency or the

recipient of a lease, permit, license, certificate, or other entitlement from a

public agency. (Pub. Resources Code, §§ 21167.6.5, subd. (a) & 21065,

subds. (b) & (c)0 A petitioner is required to name the real party in interest

in the petition and serve the real party in interest with the petition. (Pub.

Resources Code, § 21167.6.5.) Courts are explicitly authorized to enjoin a

real party in interest. (Pub. Resources Code, § 21168.9, subd. (a)(2).)

Here, it is not alleged that Caltrans is a project proponent or that

Caltrans has taken any final agency action associated with the casino/hotel

10

complex. Also, Appellant does not allege that the Governor was officiating

as a Caltrans decision-maker when he issued his concurrence letter, that the

concurrence letter mandated that Caltrans take any action, or that Caltrans

will be implementing anything associated with the casino/hotel complex or

the Governor’s decision without exercising its independent discretion and

complying with CEQA. Therefore, Caltrans is not a proper respondent.

Additionally, Appellant does not allege that Caltrans is undertaking any

action; has received any lease, permit, license, certificate, or other

entitlement that is at issue in this case; or has any other interest that will be

directly affected by the proceeding. Therefore, Caltrans cannot be named

as a real party in interest.

3. CEQA prescribes the notification o f responsible agencies and the ability to sue a responsible agency once a cause o f action against that responsible agency becomes ripe.

Lastly, a process already exists whereby potentially responsible

agencies are notified of pending CEQA actions, ensures the jurisdictional

and pleading requirements are not trampled upon, and the potentially

responsible agency may still be held accountable if it takes any action in

violation of CEQA. Thus, a writ cannot be issued against Caltrans because

there is a plain, speedy, and adequate remedy in the ordinary course of the

law - when and if a cause of action becomes ripe. (Code Civ. Proc.,

§ 1086.)

CEQA requires a respondent public agency to provide any petitioner

with a list of all responsible agencies and any public agencies having

jurisdiction over a natural resource affected by the project that is the subject

of litigation. (Pub. Resources Code, § 21167.6.5, subd. (b).) Then the

petitioner must provide those responsible agencies and agencies with

jurisdiction over resources with notice of the lawsuit. (Pub. Resources

Code, § 21167.6.5, subd.(c).) Arid if a responsible agency takes final action

11

on a project without complying with CEQA, then, and only then, can a

CEQA lawsuit be brought against that responsible agency. (Pub. Resources

Code, §§ 21167 & 21168.5 (authorizing actions or proceedings to attack,

review, set aside, void, or annul a determination, finding, act, or decision of

a public agency.)

If and when Caltrans is asked to approve any highway improvements

associated with the casino/hotel complex, Caltrans can and will consider

the whole of the action mid analyze the direct, indirect, and cumulative

impacts of that action in compliance with CEQA. The courts are to

presume that an agency will fulfill its legal obligations. (SeeEvid. Code, §

664; City o f Sacramento v. State Water Resources Control Bd. (1992) 2

Cal.App.4th 960, 976 [3 Cal.Rptr.2d 643].) And there are no alleged facts

that suggest that Caltrans “is doing, or threatens, or is about to do . . . some

act . . in relation to the casino/hotel complex that would violate CEQA.

(See Civ. Proc. Code, § 526, subd. (a)(3); Korean Philadelphia

Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069,

[92 Cal.Rptr.2d- 275] (holding that an injunction cannot exist in a vacuum

based oil a party’s fears of what may happen sometime in the future, but

actual evidence must support that there is a realistic prospect that the party

enjoined intends to engage in the prohibited activity).)

IV. CONCLUSION

The Petition fails to allege facts demonstrating that a project under

Caltrans’ jurisdiction exists and that Caltrans approved that project.

Further, Appellant’s efforts to include Caltrans in this CEQA challenge by

alleging facts about what Caltrans may do in the future raise unripe, non-

justiciable claims. As there are ho facts available to the Appellant that

would support a justiciable CEQA cause of action against Caltrans, the trial

court’s sustaining of Caltrans* demurrer should be affirmed.

DATED: February 24, 2014

Respectfully Submitted,

RONALD W. BEALS, Chief Counsel JEANNE SCHERER, Deputy Chief Counsel DAVID H. McCRAY, Assistant Chief Counsel BRANDON S. WALKER, Deputy Attorney

Attorneys for Defendant and Respondent California Department of Transportation

.NDON S.-

13

CERTIFICATE OF COMPLIANCE [CRC 8.204(c)(1)]

Pursuant to California Rule of Court, rule 8.204(c)(1), I certify that

Respondents’ Brief contains 3562 words and is printed in a . 13-point

typeface.

DATED: February 24,2014Respectfully Submitted,

RONALD W. BEALS, Chief Counsel JEANNE SCHERER, Deputy Chief Counsel DAVID H. McCRAY, Assistant Chief Counsel BRANDON S. WALKER, Deputy Attorney

Attorneys for Defendant and Respondent

14

PROOF OF SERVICE

COURT OF APPEAL, STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

Case No. C074506

PICAYUNE RANCHERIA OFCHUKCHANSI INDIANS,V.EDMUND G. BROWN, Jr., et al.

I, the undersigned, declare that:

I am at least 18 years of age and not a party to the case; I am

employed in the County of Sacramento, California, where the mailing

occurs; and, my business address is 1120 N Street, MS-57, Sacramento, CA

95814.

I further declare that I aril readily familiar with the business' practice

for collection and processing of correspondence for mailing with the United

States Postal Service; and that the correspondence shall be deposited with

the United States Postal Service this same day in the ordinary course of

business.

I served the foregoing RESPONDENT’S BRIEF, on February /^

2014, by sealing each envelope and placing it with for collection and

mailing with the United States Postal Service, on this same day, at my

business address shown above, following ordinary business practices,

addressed to:

See list

Court of Appeal,Third Appellate District 900 N. Street Sacramento, CA 95814 (Original + 4 copies)

Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 (4 copies)

Superior Court of California County of Sacramento 720 Ninth Street Sacramento, CA 95814-1398 (1 copy)

AKIN GUMP STRAUSS HAUER & FELD LLP Carlyle W. Hall Jr.Andrew Oelz2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3012 Telephone: (310) 229-1000 Facsimile: (310)229-1001 cwhall@akingump.com aoelz@akingump.com

Office of Attorney General Deborah Barnes 13001 Street Sacramento, CA 95814 Telephone: (916) 322-9294 Facsimile: (916) 327-2319 Deborah.bames @ doi.ca. gov

Office of Attorney General Timothy Muscat William P. Tomgren 13001 Street Sacramento, CA 95814 Telephone: (916)322-5184 Facsimile: (916)327-2319 Timothy; muscat @ doi. ca. gov Williarri.tomgren@doi.ca.gov

Attorneys for Petitioners and PlaintiffPICAYUNE RANCHERIA OF CHUKCHANSI INDIANS

Attorney for Respondent and DefendantCALIFORNIA DEPARTMENT OF FISH AND WILDLIFE

Attorneys for Respondent and DefendantEDMUND G. BROWN, JR.

16

County o f Madera Douglas W. Nelson Robert D. Gabriele

Attorneys for Respondent and DefendantCOUNTY OF MADERA

200 West Fourth Street Madera, CA 93637 Telephone: (559) 675-7700 dnelson@madera-countv.com Robert, gabriele@madera-countv.com

City of Madera Attorney for Respondent andJ. Brent Richardson Defendant205 West Fourth Street CITY OF MADERAMadera, CA 93637Telephone: (559) 661-^5405brichardson@citvofmadera.com

COX, CASTLE & NICHOLSON LLP Attorney for Real Party in

Telephone: (415) 392-4200 Facsimile: (415) 392-4250 asabey@coxcastle.com

I declare under penalty of perjury and the laws of the State of

California that the foregoing is true and correct. Executed on Z.

Andrew B. Sabey555 California Street, 10 FloorSan Francisco, CA 94104-1513

InterestNP FRESNO LAND ACQUISITIONS LLC

in Sacramento, California.

17

AMENDED PROOF OF SERVICE

COURT OF APPEAL, STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

Case No. C074506

PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS, v.EDMUND G. BROWN, Jr., et al,

I, the undersigned, declare that:

I am at least 18 years of age and not a party to the case; I am employed in the

County of Sacramento, California, where the mailing occurs; and, my business address is

1120N Street, MS-57, Sacramento, CA 95814.

I further declare that I am readily familiar with the business' practice for collection

and processing of correspondence for mailing with the United States Postal Service; and

that the correspondence shall be deposited with the United States Postal Service this same

day in the ordinary course of business.

I served the foregoing RESPONDENT’S BRIEF, on February 24, 2014, by

sealing each envelope and placing it with for collection and mailing with the United

States Postal Service, on this same day, at my business address shown above, following

ordinary business practices, addressed to:

See list

Court of Appeal, *Corrected AddressThird Appellate District914 Capitol MallSacramento, CA 95814(Original + 4 copies)

Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 (4 copies)

Superior Court of California County of Sacramento 720 Ninth Street Sacramento, CA 95814-1398 (1 copy)

AKIN GUMP STRAUSSHAUER & FELD LLPCarlyle W. Hall Jr.Andrew Oelz2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3012 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 cwhall@akingurnp.com aoelz@akingump.corh

Office of Attorney General Deborah Barnes 13001 Street Sacramento, CA 95814 Telephone: (916) 322-9294 Facsimile: (91^) 327-2319 Deborah.bames@doi.ca.gov

Office of Attorney General Timothy Muscat William P. Torngren 13001 Street Sacramento, CA 95814 Telephone: (916) 322-5184 Facsimile: (916) 327-2319 Timothv.muscat@doi.ca.gov William.torngren@doi.ca.gov

Attorneys for Petitioners and Plaintiff PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS

Attorney for Respondent and Defendant CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE

Attorneys for Respondent and Defendant EDMUND G. BROWN, JR.

County of Madera Douglas W. Nelson

Attorneys for Respondent and DefendantCOUNTY OF MADERA

Robert D. Gabriele200 West Fourth StreetMadera, CA 93637Telephone: (559) 675-7700dnelson@madera-countv.comRobert.gabriele@madera-county.com

City of Madera Attorney for Respondent and DefendantJ. Brent Richardson CITY OF MADERA205 West Fourth StreetMadera, CA 93637Telephone: (559) 661-5405brichardson@citvofmadera.com

COX, CASTLE &NICHOLSON LLP Attorney for Real Party in InterestAndrew B. Sabey 555 California Street, 10 Floor San Francisco^ CA 94104-1513 Telephone: (415) 392-4200 Facsimile: (415) 392-4250 asabey@coxcastle.coni

NP FRESNO LAND ACQUISITIONS LLC

I declare under penalty of perjury and the laws of the State of California that the

foregoing is true and correct. Executed on February 24, 2014, in Sacramento, California.