IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

Transcription

1 C IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS, a federally-recognized Indian Tribe Petitioner and Appellant v. EDMUND G. BROWN, JR., in his capacity as Governor of the State of California, CALIFORNIA DEPARTMENT OF TRANSPORTATION, CALIFORNIA DEPARTMENT OF FISH AND GAME, COUNTY OF MADERA, CITY OF MADERA, Defendants and Respondents APPEAL FROM SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO HON. MICHAEL P. KENNY, JUDGE CASE NO RESPONDENT CITY OF MADERA S OPENING BRIEF MADERA CITY ATTORNEY S OFFICE J. Brent Richardson (222943) 205 W. Fourth Street Madera, CA Phone: (559) Facsimile: (559) ATTORNEYS FOR RESPONDENT CITY OF MADERA

2 C IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS, a federally-recognized Indian Tribe Petitioner and Appellant v. EDMUND G. BROWN, JR., in his capacity as Governor of the State of California, CALIFORNIA DEPARTMENT OF TRANSPORTATION, CALIFORNIA DEPARTMENT OF FISH AND GAME, COUNTY OF MADERA, CITY OF MADERA, Defendants and Respondents APPEAL FROM SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO HON. MICHAEL P. KENNY, JUDGE CASE NO RESPONDENT CITY OF MADERA S OPENING BRIEF MADERA CITY ATTORNEY S OFFICE J. Brent Richardson (222943) 205 W. Fourth Street Madera, CA Phone: (559) Facsimile: (559) ATTORNEYS FOR RESPONDENT CITY OF MADERA

3 TABLE OF CONTENTS I. INTRODUCTION... 1 Page II. STATEMENT OF THE CASE... 1 III. ARGUMENT...2 A. The Superior Court Correctly Ruled That Claims by the Appellant Based on Anticipated Future Actions Were Not Ripe and Therefore an Order Enjoining Respondents From Taking Such Actions Would be Premature and Moot... 2 B. The Court Did Not Err in Ruling That the Governor s Concurrent is Not a Project Under CEQA...3 IV. CONCLUSION...5 CERTIFICATE OF COMPLIANCE 6

4 TABLE OF AUTHORITIES Cases: Pages Bozung v. Local Agency Formation Comm. (1975) 13 Cal.3d , 5 Cantu v. Resolution Trust Corp. (1992), 4 Cal. App. 4th Citizens to Preserve the Ojai v. County o f Ventura (1985) 176 Cal. App.3d Heninger v. Board o f Supervisors (1986) 186 Cal.App.3d San Joaquin Raptor/Wildlife Rescue Center v. County o f Stanislaus (1994) 27 Cal.App.4th Federal Statutes: 25 USCS 2719(b)(1)(A)...4 State Statutes: California Environmental Quality A c t...1, 3, 4, 5 Public Resources Code Public Resources Code

5 RESPONDENT CITY OF MADERA S OPENING BRIEF I. INTRODUCTION The appellant in this matter brought a Petition for Writ of Mandate seeking to have the Governor s concurrence as to a casino project (the Project ) proposed to be developed by the North Fork Rancheria of Mono Indians, and seeking to enjoin the remaining Respondents herein from approving any components of the casino project without complying with California Environmental Quality Act (CEQA). All Respondents filed demurrers to the Petition. The Appellant now appeals the lower court s sustaining without leave to amend, of the Respondent s demurrers. II. STATEMENT OF THE CASE Appellant and Petitioner below, Picayune Rancheria of Chukchansi Indians filed its Petition for Writ of Mandate and Complaint for Injunctive Relief ( Writ ) on November 30,2012. Among other things, the Petition sought to have Governor Brown s concurrence with the Secretary of the Interior as to the siting and development of the Project and further sought to enjoin the remaining Respondents from approving any component in connection with the Project without complying with CEQA. Madera is one o f the Respondents. All Respondents filed demurrers to the Petition. The City of Madera ( Madera ) filed its Demurrer on or about January 24, The City in its Demurrer argued that the Petition failed to allege facts sufficient to state a cause of action because Petitioner did not allege that the City took any action relative to the Project or otherwise allege that the City violated CEQA in any manner. The demurrer further alleged that as to Madera, the court lacked jurisdiction because the allegations in the Writ involved potential approvals o f yet-to-be-determined improvements.

6 On April 26, 2013, the lower court heard argument on the demurrers. Madera appeared by telephone. On May 29,2013, the court issued its order ruling on the demurrers. The court sustained without leave to amend, the demurrers of all Respondents, including Madera. The court ruled that as to claims based upon anticipated future approvals, such claims were not ripe. (62 JA 909.) A Notice of Filing the Notice of Appeal was entered by the court on or about August 9,2013. III. ARGUMENT When a trial court sustains a demurrer without leave to amend, the appellate court also reviews that ruling for abuse of discretion. A trial court does not abuse its discretion when it sustains a demurrer without leave to amend if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim. Cantu v. Resolution Trust Corp. (1992), 4 Cal. App. 4th 857, 890. A. The Superior Court Correctly Ruled That Claims by the Appellant Based on Anticipated Future Actions Were Not Ripe and Therefore an Order Enjoining Respondents From Taking Such Actions Would be Premature and Moot. While the Appellant states that the Superior Court did not rule as to the justiciability of Appellant s claims as to anticipated future acts of Respondents. This is wholly inaccurate. The court s ruling stated as follows: Any claims by petitioner based on these anticipated future are not yet ripe, as the petition and complaint does not allege that any such action has occurred yet.

7 Clearly the court ruled as to justiciability. Appellant s argument that Respondents can be enjoined from such potential future acts is not supported by applicable authority. Appellant cites Heninger v. Board o f Supervisors (1986) 186 Cal. App.3d 601, to support their position that agencies that would potentially be taking future actions can be enjoined from doing do. However, Heninger is distinguishable from the current case. In Heninger, the petitioner sought to have respondent agencies enjoined from approving permits based on an ordinance, which the petitioner sought to have invalidated, empowering the respondents to issue said permits. The appellate court upheld the lower court s ruling that the ordinance was invalid for violating CEQA and further enjoined agencies from granting permits under the now invalid permitting ordinance. Id. at p.605. This is clearly distinguishable from the current case. Heninger involved the possibility of the specific act of issuing permits under the challenged ordinance which empowered the respondents to do so. Here, there is no newly enacted ordinance under which any of the respondent agencies might act, and no specific action which is contemplated to be taken by the respondents. Appellant is seeking to enjoin Respondents, including the City, from undertaking some yet to be determined approval of a type which is unknown and not even anticipated. Such an injunction would be premature and the Heninger case is clearly inapplicable. Appellant s citations to San Joaquin Raptor/Wildlife Rescue Center v. County o f Stanislaus (1994) 27 Cal.App.4th 713, 743, and Citizens to Preserve the Ojai v. County o f Ventura (1985) 176 Cal. App.3d 421, 432, are inapplicable for similar reasons and do not support Appellant s arguments.

8 B. The Court Did Not Err in Ruling That the Governor s Concurrance is Not a Project Under CEQA. Appellant argues that the court erred in ruling that Governor s concurrence with the Secretary of the Interior was not a project for purposes of CEQA. The trial court s ruling held that the petition did not allege that the Governor or any of the respondents were undertaking the construction of a casino/hotel complex nor did it allege they were supporting such construction through contracts, grants, subsidies, loans or other assistance. (53 JA ) It further held that the only other basis for concluding the Governor s concurrence was a project was that it was an issuance of a lease, permit, license, certificate or other entitlement. (53 JA 804.) The court held that the role of the Governor under 25 USCS 2719(b)( 1)(A) is limited to satisfying one precondition to the Secretary of the Interior s authority under that section to permit gaming on after-acquired trust land. (53 JA 804.) Appellant contends that the casino/hotel project will require permits from Fish and Game, and CalTrans approvals of mitigation measures for traffic congestion, as well as require the City of Madera and the County of Madera to approve mitigation measures in connection with an MOU pertaining to the casino. However, none of these approvals or permits, to the extent any of them are necessary, are accomplished by the concurrence of the Governor, and appellant does not argue that they are. Accordingly, Appellant has not addressed the trial court s correct ruling that the Governor s concurrence was not an issuance of permits or entitlements and therefore was not a project under CEQA. Thus, the Appellant has not demonstrated that the court erred in its ruling. Appellant then cites to Bozung v. Local Agency Formation Comm. (1975) 13 Cal.3d. 263, for the proposition that somehow the Governor s concurrence was a project because it was a necessary step in the development o f the casino/hotel complex. In so arguing, Appellant misstates 4

9 the court's decision in Bozung. The court in Bozung specifically held that the LAFCO approval was a project for purposes of section of CEQA because the LAFCO approval was an activity undertaken by a public agency. Id. at p The trial court held that the Governor is not a public agency under the definition in section (53 JA 805.) The trial court stated in its ruling that the Petitioner had not cited to any authority which demonstrated that the Governor is a public agency. Likewise in its opening brief, Appellant fails to cite any authority which specifically supports its contention that the Governor is a public agency for purposes of CEQA. Therefore, the Appellant has failed to show that the trial court erred in ruling that the Governor s concurrence was not a project. IV. CONCLUSION For the all of the foregoing reasons, Appellant s appeal should be denied and the trial court s ruling sustaining the demurrers of all respondents below without leave to amend should be upheld. Dated: February 2014 Respectfully submitted, Brent Richardson, City Attorney for the City of Madera By: Brent Richardson, Attorneys for City of Madera

10 CERTIFICATE OF COMPLIANCE [Cal. Rules o f Court, Rule 8.204(c)] This brief consists of 1,333 words as counted by Microsoft WordPerfect Version 12 word processing program used to generate the brief. Dated: February 13, 2014 City o f Madera, City Attorney s Office J. Brent Richardson J. Brent Richardson Attorneys for Respondent s City o f Madera

11 PROOF OF SERVICE I am a resident of the State of California. I am over the age of eighteen years and not a party to the within action. My business address is 205 W. Fourth Street, Madera, CA On February \ ^ \ 2014,1 served the following document described as: RESPONDENT CITY OF M ADERA S OPENING BRIEF, on the following parties in this action: SEE ATTACHED SERVICE LIST Said service was accomplished as indicated below: [ X ] (BY MAIL) The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the agency s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. [ ] (BY PERSONAL SERVICE) I delivered such envelope by hand to the office of the addressee. [ ] (BY FACSIMILE TRANSMISSION) I caused true and correct copies o f the abovereferenced documents to be delivered by electronic facsimile transmission. [ X ] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on February \ \, 2014, at Madera^'California. Shawndee Dix

12 Akin Gump Strauss Hauer & Feld LLP Carlyle W. Hall Jr., Esq. Andrew Olez, Esq 2029 Park East, Suite 2400 Los Angeles, CA SERVICE LIST Akin Gump Strauss Hauer & Feld LLP Amit Kurlekar, Esq. 580 California Street, Suite 1500 San Francisco, CA California Department of Transportation Brandon S. Walker, Esq. Elizabeth R. Pollock, Esq. Attn: Legal Department 1120 N Street, MS 57 P.O. Box 1438 Sacramento, CA California Department of Fish & Game Office of the Attorney General Deborah Barnes, Esq I Street, Suite 125 PO Box Sacramento Ca Governor Edmund G. Brown, Jr. Office of the Attorney General Timothy M. Muscat, Esq I Street, Suite 125 P.O. Box Sacramento, CA County of Madera Madera County Counsel Douglas W. Nelson, Esq. Robert D. Gabriele 200 W. 4th Street Madera CA 93637

13 SERVICE LIST CONTINUED Cox, Castle & Nicholson, LLP A ndrew B. Sabey, Esq. 555 California Street, 10th Floor San Francisco, CA Attorneys Real Party in interest, NP Fresno Land Acquisitions LLC) Superior C ourt of C alifornia County of Sacram ento Civil Division 720 North 9th Street Sacramento CA California Suprem e C ourt 350 McAllister Street San Francisco CA