Monterey Coastkeeper v. Monterey Cnty. Water Res. Agency

Porter-Cologne Act (failure to file a report of waste discharge) and denied the petition as to the fourth cause of action for breach of fiduciary duty under the public trust doctrine. The remaining causes of action were abandoned by Monterey Coastkeeper.

A peremptory writ of mandate pursuant to Code of Civil Procedure section 1085 was entered on June 4, 2015. The writ commands MCWRA "to prepare and file a report of waste discharge under ... section 13260 of the Porter-Cologne Act with the Central Coast Regional Water Quality Control Board for its activities in and around the Reclamation Ditch and Blanco Drain watersheds ...."

On appeal, MCWRA contends that Monterey Coastkeeper's writ petition should be denied because Monterey Coastkeeper

failure to file a report of waste discharge); (2) violation of section 13264 of the Porter-Cologne Act (failure to comply with Regional Board requirements for a new or changed waste discharge); (3) violation of section 13247 of the Porter-Cologne Act (failure to comply with the applicable water quality plan); (4) breach of fiduciary duty under the public trust doctrine; and (5) abatement of a public nuisance.

As a remedy, Monterey Coastkeeper sought a declaration that MCWRA's discharge of agricultural pollutants into the Reclamation Ditch and the Blanco Drain violated its duty under the public trust doctrine and constituted a public nuisance. In addition, Monterey Coastkeeper sought a writ of mandate under Code of Civil Procedure section 1085 compelling MCWRA to cease discharging until all waste discharges were compliant with the law.

MCWRA filed points and authorities in opposition to Monterey Coastkeeper's writ petition in August 2014. MCWRA argued that the petition was procedurally barred and should be dismissed because Monterey Coastkeeper had failed to show that writ relief was available on the grounds that either MCWRA had a mandatory duty under the Porter-Cologne Act or Monterey Coastkeeper's administrative remedies under the Porter-Cologne Act were inadequate. MCWRA also argued that the petition lacked substantive merit because a private cause of action is not authorized by the Porter-Cologne Act; MCWRA was not a waste discharger within the meaning of the Porter-Cologne Act; and MCWRA did not have any duties under the public trust doctrine.

B. Court Trial and Order Certifying Questions to the Regional Board

A court trial on Monterey Coastkeeper's writ petition was set on November 14, 2014. At the time of the hearing, the trial court determined (as stated in its subsequent intended statement of decision) that "due to the uncertain state of the record, the highly specialized and technical nature of the issues raised, and the parties' opposing positions as to whether or not the [Regional Board] had determined [MCWRA] to be a waste discharger, the court desired that the Regional Board clarify its position as to whether [MCWRA] was a waste discharger and hence required

Court certifies the following questions to the [Regional Board]: [¶] (a) Has the Board completed its investigation of whether [MCWRA] activities in and around the Reclamation Ditch and Blanco Drain watersheds render MCWRA a waste discharger which must file a report of waste discharge pursuant to ... sections 13260 or 13264? [¶] (b) If so, what is the Board's determination? [¶] (c) If not, when does the Board anticipate making such a determination?"

In a January 7, 2015 letter addressed to the trial court, the Regional Board's executive director responded that the Regional Board's "staff has determined that MCWRA is a waste discharger and must file a report of waste discharge pursuant to ... sections 13260 or 13264 for its activities in and around the Reclamation Ditch and Blanco Drain watersheds. We will provide additional information directly to MCWRA regarding timing and content of a report of waste discharge."

The January 7, 2015 letter was followed by a January 22, 2015 email to the parties' attorneys from an attorney in the State Water Board's office of chief counsel. The email stated, among other things, that the Regional Board's executive director "does not construe the [January 7, 2015] letter to the court as a request for MCWRA to file [a report of waste discharge]. The letter is not a board order, and the Executive Officer did not intend it to be a request for a [report of waste discharge] under section 13261, subdivision (a)."

C. Further Court Trial and Intended Decision

The court trial resumed on March 19, 2015. After hearing the parties' arguments, the trial court entered an intended statement of decision on April 24, 2015. As discussed in the intended statement of decision, the trial court determined for several reasons that a writ of mandate should issue as requested by Monterey Coastkeeper.

First, the trial court rejected MCWRA's contention that a writ of mandate should not issue because Monterey Coastkeeper had failed to exhaust its administrative remedies under the Porter-Cologne Act. The court ruled that the administrative remedy provided by the Porter-Cologne Act was inapplicable under the circumstances of this case, because, according to the court, only the inactivity of the Regional Board is subject to administrative review, not the inactivity of MCWRA in failing to file a waste discharge report. The court also ruled that Monterey Coastkeeper had exhausted its administrative remedies because the Regional Board had responded to the questions that the court "certified" to the Regional Board regarding its investigation of MCWRA's activities with respect to the Reclamation Ditch and the Blanco Drain.

Second, the trial court found that Monterey Coastkeeper had a beneficial interest in the outcome of the case because it concerned an issue of public right, which was water quality. The court rejected MCWRA's contentions that a writ could not issue to enforce a law of general applicability or, alternatively, that a private

As we will explain, we determine that the issue of failure to exhaust administrative remedies is dispositive. We will therefore begin our evaluation of MCWRA's contentions with an overview of the doctrine of exhaustion of administrative remedies.

A. Exhaustion of Administrative Remedies

Under the doctrine of exhaustion of administrative remedies, "the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act." ( Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 , 292, 109 P.2d 942 ( Abelleira ).) The doctrine "is not a matter of judicial discretion, but is a fundamental rule of procedure ... binding upon all courts." ( Id. at p. 293, 109 P.2d 942 .)

This court has explained that " '[t]he exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked

Surfrider Foundation , supra , 211 Cal.App.4th at pp. 568-569, 149 Cal.Rptr.3d 763 .) We therefore determine that Monterey Coastkeeper had an administrative remedy under the provisions

Coastkeeper relies, does not support its argument that the Porter-Cologne Act's administrative remedy is inadequate because it does not provide for judicial review. In Johnson , the regional board imposed a fine on the appellants for their failure to file a notice of intent prior to grading their property and failure to respond to the regional board's request for information. ( Johnson , supra , at p. 1111, 20 Cal.Rptr.3d 441 .) The appellants sought review by the State Water Board, "but the board dismissed their petition based on its informal rule that it will not review administrative civil penalties imposed by regional boards." ( Ibid . ) The Johnson court concluded that "a discretionary decision by the State Board as to whether to review a regional board's decision imposing administrative penalties is not subject to judicial review." ( Id . at p. 1114, 20 Cal.Rptr.3d 441 .) However, the

the issued order is deemed final and the party may challenge the order through a petition for mandate in the trial court. ( [Citation]; see § 13330, subd. (b).)"

Having determined that an adequate administrative remedy exists under the Porter-Cologne Act with regard to Monterey Coastkeeper's claims that MCWRA has violated its obligation under section 13260, subdivision (a)(1) to report waste discharges from the Reclamation Ditch and the Blanco Drain to the Regional Board and should be compelled to file such reports, we further determine that Monterey Coastkeeper has failed to exhaust its administrative remedy. The record reflects that Monterey Coastkeeper has not requested under section 13320, subdivision (a) that the Regional Board act by requiring MCWRA to file a waste discharge report in compliance with section 13260, subdivision (a)(1). Although Monterey Coastkeeper complained in the trial court that "[t]he Regional Board has never completed its outstanding factual investigation because [MCWRA] has failed to fully respond to repeated inquiries," the record also reflects that Monterey Coastkeeper has not filed a petition for review of the Regional Board's failure to act with the State Water Board under section 13320, subdivision (a). Had Monterey Coastkeeper

We determine that the issue of whether MCWRA has violated a public trust duty by discharging agricultural pollutants into the Reclamation Ditch and the Blanco Drain is not ripe for adjudication. " 'A controversy is "ripe" when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.' [Citation]." ( Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158 , 171, 188 Cal.Rptr. 104 , 655 P.2d 306 ( Pacific Legal Foundation ).) "[T]he ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy." ( Id . at p. 170, 188 Cal.Rptr. 104 , 655 P.2d 306 ; see also Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202 , 1221, 218 Cal.Rptr.3d 517 .) Thus, "[t]he ripeness requirement ... prevents courts from issuing purely advisory [or hypothetical] opinions." ( Pacific Legal Foundation , supra , at p. 170, 188 Cal.Rptr. 104 , 655 P.2d 306 .)

As we have noted, "[t]he Porter-Cologne Act requires any person discharging, or proposing to discharge, waste that could affect the quality of state waters to file a report with the appropriate regional board. (... § 13260, subd. (a)(1).) The regional board then 'shall prescribe requirements as to the nature' of the discharge, implementing any applicable water quality control plans. (... § 13263, subd. (a).) The Operators must follow all requirements set by the Regional Board. (... §§ 13264, 13265.)" ( Dept. of Finance , supra , 1 Cal.5th at p. 756, 207 Cal.Rptr.3d 44 , 378 P.3d 356 .) In the present case, since Monterey Coastkeeper did not initiate the administrative review process under the Porter-Cologne Act, no administrative record exists regarding the nature of any waste discharge by MCWRA into the Reclamation Ditch and the Blanco Drain, and the Regional Board did not have the opportunity to prescribe requirements as to the nature of the discharge and to implement applicable water quality control plans. Absent an administrative record that would provide an "actual set of facts" on which a decision could be based as to whether the public trust doctrine has been violated by a discharge of agricultural pollutants into the Reclamation Ditch and the Blanco Drain by MCWRA, we decline to issue an advisory opinion. ( Pacific Legal Foundation , supra , 33 Cal.3d at p. 170, 188 Cal.Rptr. 104 , 655 P.2d 306 .)

National Audubon Society , supra , 33 Cal.3d at pp. 424-425, 189 Cal.Rptr. 346 , 658 P.2d 709 .) The court concluded that the superior court has concurrent jurisdiction with the State Water Board to determine controversies under the state's appropriative water rights system, and therefore the plaintiffs were not required to exhaust an administrative remedy before filing suit. ( Id . at pp. 426, 451-452, 189 Cal.Rptr. 346 , 658 P.2d 709 .) The court also concluded that "plaintiffs can rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono Basin." ( Id . at p. 452, 189 Cal.Rptr. 346 , 658 P.2d 709 .) No issue was raised in National Audubon Society as to the Porter-Cologne Act's express statutory scheme for the regional boards' regulation of waste discharges and the Porter-Cologne Act's corresponding administrative remedies. "It is well established, of course, that ' "cases are not authority for propositions not considered." ' [Citation.]" ( Loeffler v. Target Corp. (2014) 58 Cal.4th 1081 , 1134, 171 Cal.Rptr.3d 189 , 324 P.3d 50 .)

Accordingly, we conclude that the trial court did not err in denying Monterey Coastkeeper's petition for writ of mandate as to the fourth cause of action for breach of duty under the public trust doctrine.

T

he judgment granting the petition for writ of mandate is reversed, and the court is directed to enter a judgment denying the petition. Costs on appeal are awarded to appellant Monterey County Water Resources Agency.

WE CONCUR:

ELIA, ACTING P.J.

MIHARA, J.

primary water management agency for Monterey County" and that MCWRA has "broad powers to manage water supply and water quality in Monterey County." Those powers included, according to Monterey Coastkeeper, the operation of two "wastewater conveyance facilities" known as the Reclamation Ditch and the Blanco Drain.

Monterey Coastkeeper further alleged in its petition that the Reclamation Ditch collects contaminated agricultural wastewater from adjacent farmland, which is discharged into the Tembladero Slough and from there flows into the Salinas River, the Elkhorn Slough, and eventually the Pacific Ocean. The Blanco Drain allegedly collects contaminated irrigation water from adjacent farmland that is pumped into the Salinas River.

According to Monterey Coastkeeper, MCWRA has not instituted measures to mitigate the contamination of surface waters caused by its operation of the Reclamation Ditch and the Blanco Drain, has not submitted a report of waste discharge to the Regional Board as required under the Porter-Cologne Act, and has violated its public trust obligation under state law.

Based on these and other allegations, Monterey Coastkeeper asserted causes of action for (1) violation of section 13260 of the Porter-Cologne Act

to file a report of waste discharge under ... sections 13260 and 13264."

The trial court found that uncertainty in the record existed because the Regional Board had begun an investigation of MCWRA's activities in 2012 but had taken no action on the investigation by the time of trial in 2014. The trial court therefore determined that the record should be clarified by ordering nonparty Regional Board to answer three questions, as stated in the court's December 8, 2014 order: "In order to assist its resolution of this matter, the

courts should decline to intervene in an administrative dispute unless absolutely necessary).' [Citation.] ' "Even where the administrative remedy may not resolve all issues or provide the precise relief requested by a plaintiff, the exhaustion doctrine is still viewed with favor 'because it facilitates the development of a complete record that draws on administrative expertise and promotes judicial efficiency.' " ' [Citation.]" ( McAllister v. County of Monterey (2007) 147 Cal.App.4th 253 , 275, 54 Cal.Rptr.3d 116 ( McAllister ).) Therefore, "[u]ntil an available 'administrative procedure has been invoked and completed, there is nothing that the ... court may review; it cannot interfere in the intermediate stages of the proceeding.' [Citation.]" ( Ibid . )

"The exhaustion doctrine has certain exceptions. [Citation.] The doctrine does not apply when the administrative remedy is inadequate. [Citation.] For example, it does not apply when the administrative procedure is too slow to be effective [citation], or when irreparable harm would result by requiring exhaustion of administrative remedies before seeking judicial relief [citations], or when it is clear that seeking administrative remedies would be futile [citation]." ( City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597 , 609, 110 Cal.Rptr.3d 718 , 232 P.3d 701 .)

"We apply a de novo standard of review to the legal question of whether the doctrine of exhaustion of administrative remedies applies in a given case. [Citations.]" (

prerequisites for a stay order ( id ., § 2053), the notice to be provided for review on the State Water Board's own motion ( id ., § 2055), the contents of the record before the State Water Board ( id ., § 2064), the informal disposition of petitions ( id ., § 2065), the formal disposition of petitions ( id ., § 2067), and the requirement that each regional board inform persons attending a regional board's business meetings of the right to petition the State Water Board to review an action or inaction of the regional board ( id ., § 2068).

requiring MCWRA to file a report of waste discharge.

Having reviewed the administrative remedy provided by the Porter-Cologne Act, we agree with MCWRA and amicus curiae. Under the Porter-Cologne

of the Porter-Cologne Act for its claim that MCWRA should be compelled to file waste discharge reports with respect to the Reclamation Ditch and the Blanco Drain.

We are not convinced by Monterey Coastkeeper's argument that the administrative remedy provided by the Porter-Cologne Act is inapplicable, and therefore it can proceed directly against MCWRA in the superior court by filing a petition for a writ of mandate compelling MCWRA to file a waste discharge report with the Regional Board. As we have noted, the Porter-Cologne Act provides that the State Water Board and the nine regional boards have primary responsibility for water quality, and the regional boards have responsibility for issuing waste discharge permits. (§ 13001; Dept. of Finance , supra , 1 Cal.5th at pp. 755-756, 207 Cal.Rptr.3d 44 , 378 P.3d 356 .) Moreover, the provisions of the Porter-Cologne Act establish the regional boards as the authority for determining whether a waste discharge report must be filed by a suspected discharger. (§§ 13260, subd.(a)(1), 13261, 13262, 13264, 13265, 13267, subd. (b)(1).) The regional boards are also authorized to prescribe "requirements as to the nature" of the discharge, including the implementation of applicable water quality control plans. (§ 13263, subd. (a).) Monterey Coastkeeper has provided no authority for the proposition that the superior court may decide in the first instance on a petition by a third party that a suspected discharger is required to file a waste discharge report, in contravention of the Porter-Cologne Act's express statutory scheme for the regulation of waste discharges by the regional boards and the Porter-Cologne Act's administrative remedies. (See § 13262 [regional board, through the Attorney General, may petition the superior court for injunctive relief requiring a person to comply with § 13260].)

We are also not convinced by Monterey Coastkeeper's argument that the Porter-Cologne Act's administrative remedy is inadequate because it does not provide for judicial review. We reiterate that the Porter-Cologne Act expressly provides for judicial review, as follows. A person aggrieved by the State Water Board's decision or order may obtain judicial review by filing a petition for writ of mandate with the superior court, with one exception not applicable here. ( § 13330, subd. (a).) Where the State Water Board denies review of a regional board's final decision or order, an aggrieved person may obtain judicial review of the regional board's decision or order by filing a petition for writ of mandate with the superior court. ( § 13330, subd. (b), (e) ; see Surfrider Foundation , supra , 211 Cal.App.4th at pp. 568-569, 149 Cal.Rptr.3d 763 .)

The decision in Johnson v. State Water Resources Control Bd . (2004) 123 Cal.App.4th 1107 , 20 Cal.Rptr.3d 441 ( Johnson ), on which Monterey

done so, the administrative review procedure would have facilitated the development of a complete record that drew on the State Water Board's expertise. (See McAllister , supra , 147 Cal.App.4th at p. 275, 54 Cal.Rptr.3d 116 .)

Since Monterey Coastkeeper failed to initiate the administrative review process by filing a petition for review with the State Water Board of the Regional Board's action or failure to act ( § 13320, subd. (a) ) with regard to MCWRA's alleged waste discharges from the Reclamation Ditch and Blanco Drain, we determine that Monterey Coastkeeper has failed to exhaust its administrative remedy under the Porter-Cologne Act. (See Abelleira , supra , 17 Cal.2d at p. 292, 109 P.2d 942 .) Where, as here, the plaintiff seeks a writ of mandate under Code of Civil Procedure section 1085, " ' "[i]f an administrative remedy is available and has not yet been exhausted, an adequate remedy exists and the petitioner is not entitled to extraordinary relief." [Citation.]' [Citations.]" ( Pich v. Lightbourne (2013) 221 Cal.App.4th 480 , 491, 164 Cal.Rptr.3d 388 .) Since Monterey Coastkeeper is not entitled to extraordinary relief due to its failure to exhaust its administrative remedy under the Porter-Cologne Act, we conclude that its petition for writ of mandate should have been denied by the trial court. Having reached this conclusion, we need not address the other issues raised by MCWRA in its appeal.

We will therefore reverse the judgment granting Monterey Coastkeeper's petition for writ of mandate and direct the trial court to enter a judgment denying the petition.

Monterey Coastkeeper contends that MCWRA is a public trustee with a public trust duty, which MCWRA breached "in managing the Reclamation Ditch and Blanco Drain systems." MCWRA disagrees, arguing that the trial court properly determined that MCWRA is not a trustee subject to a private right action for violation of the public trust, since there is no statutory authority providing that MCWRA is a trustee under the public trust doctrine. MCWRA maintains that as an entity regulated under the Porter-Cologne Act, its "public trust responsibilities in the water quality context are ... coextensive with Porter-Cologne requirements, and defined according to the regulatory discretion of the state and regional boards ... where authority over public trust uses actually resides."

To the extent Monterey Coastkeeper relies on the decision in National Audubon Society for the proposition that it is not required to exhaust an administrative remedy where a breach of duty under the public trust doctrine is alleged, we are not persuaded because National Audubon Society is distinguishable. In National Audubon Society , the California Supreme Court addressed an issue of water rights: Whether the plaintiffs' action in superior court to enjoin the City of Los Angeles's Department of Water and Power from diverting water from Mono Lake was barred due the plaintiff's failure to exhaust administrative remedies before the State Water Board.