LAURENS H. SILVER (SBN 55339)
Facsimile: (415) 383-7995
Law office of Donald B. Mooney
DONALD B. MOONEY (SBN 153721)
Telephone: (530) 758-2377
Facsimile: (530) 758-7169
OWENS VALLEY COMMITTEE
SUPERIOR COURT OF THE STATE OF
SIERRA CLUB, and OWENS ) Case No.:
VALLEY COMMITTEE )
Plaintiffs ) COMPLAINT FOR DECLARATORY
) AND INJUNCTIVE RELIEF
ANGELES DEPARTMENT OF )
WATER AND POWER )
DEPARTMENT OF FISH AND )
LANDS COMMISSION, and CARLA )
Real Parties in Interest. )
bring this lawsuit to enforce a term of a Memorandum of Understanding (“MOU”),
entered into by the County of Inyo, the City of Los Angeles Department of Water
and Power (“City” or “LADWP”), the Sierra Club, the Owens Valley Committee, the
California Department of Fish and Game, the State Lands Commission, and Carla Scheidlinger,
requiring the City to prepare a draft environmental impact report (“EIR”) for
the Lower Owens River Project (“LORP”) by June 13, 2000. The City, without proper cause, has failed to
complete the draft EIR, despite an agreement of the parties to extend the time
for completion of the draft EIR through
Sierra Club is a
Los Angeles Department of Water and Power is a political subdivision of the
Party in Interest County of Inyo is a political subdivision of the State of
Party in Interest California Department of Fish and Game (“DFG”) is a political
subdivision of the State of
Party in Interest California State Lands Commission is a political subdivision
of the State of
Scheidlinger is a resident of the
JURISDICTION AND VENUE
10. This Court has jurisdiction over the matters alleged in this Complaint for Declaratory and Injunctive Relief pursuant to Code of Civil Procedure sections 526, 527 and 1060.
to Code of Civil Procedure section 394(a), venue is proper in this Court
because LORP is being carried out and implemented within
STATEMENT OF FACTS
12. In 1972, the
13. In October 1991, the County and LADWP approved the Inyo County/Los Angeles Long-Term Water Agreement (“Inyo-Los Angeles Agreement”) which is intended to provide environmental protection to the Owens Valley from the effects of groundwater pumping and water exports and to identify measures required to mitigate past and future damage to the environment of Inyo County as a result of groundwater pumping. The Agreement provided a LORP project description and committed LADWP and the County to implement the LORP.
14. In connection with LADWP’s augmented groundwater pumping project and the Agreement, LADWP and the County completed a third EIR in October 1991. This Final EIR purported to address all water management practices and facilities associated with LADWP’s second aqueduct, and projects and water management practices identified in the Agreement.
15. Soon after its completion, the County and LADWP submitted the Final EIR and the Agreement to the Third District Court of Appeal with a joint request to discharge the writ of mandate.
16. Shortly thereafter, the Sierra Club, the OVC, DFG, and the State Lands Commission, who were participating in the litigation between the County and Los Angeles as amici, raised concerns about the legal adequacy of the third EIR. In 1994, the Court of Appeals denied the County and City’s request to discharge the writ of mandate and ordered the County and LADWP to respond to the issues raised by the amici concerning the legal adequacy of the Final EIR. After several years of negotiations, the parties executed the MOU which provided resolution of the concerns about the adequacy of the EIR, particularly concerns related to the adequacy of mitigation described in the EIR for impacts resulting from pumping and diversion activities in the Owens Valley from 1970 to 1990. The MOU required the City to develop, plan and carry out a number of measures to mitigate the adverse effects of the City’s project.
17. The MOU includes provisions expanding the LORP, originally set forth in the Inyo-Los Angeles Agreement and the 1991 EIR. The1991 EIR identified the LOPR as compensatory mitigation for significant adverse environmental impacts related to groundwater pumping by LADWP from 1970 to 1990 that were difficult to quantify. The MOU specifies the goal of the LORP, timeframe for development and implementation, and specific actions. It also provides certain minimum requirements for the LORP related to flows, locations of facilities, and habitats and species to be addressed. Finally, the MOU requires LADWP and the County to prepare an EIR for the LORP and issue a draft EIR within 36 months of the effective date of the MOU (June 13, 2000), and provides that flows in the river must begin within 72 months of the effective date of the MOU (June 13, 2003).
18. On January 15, 1997, LADWP and the County, as parties in a long-standing dispute over an augmented ground-water pumping project in the County of Inyo carried out by the City, together with amici curiae California State Lands Commission, California Department of Fish and Game, Sierra Club, Owens Valley Committee and Carla Scheidlinger, submitted to the Court of Appeal the Memorandum of Understanding that had been agreed to by the parties and the amici. A copy of the MOU is attached to this Complaint as Exhibit A.
19. In light of the execution of the MOU, the parties and the amici jointly moved the Third District Court of Appeals for discharge of the long-standing (since 1973) writ of mandate requiring the City to prepare a legally adequate EIR in connection with its augmented ground-water pumping project, first initiated in the early 1970s after completion of the City’s Second Aqueduct.
compensatory mitigation for adverse environmental impacts attributable to the
City’s augmented ground-water pumping, the Lower Owens River Project includes
the watering of a 60 mile stretch of the
22. A major component of the LOPR is a pumpback station. The Inyo-Los Angeles Agreement specifies the pumpback station will have a capacity up to 50 cubic feet per second (“cfs”).
goal of the LORP is the establishment of a healthy and functioning
25. There are four critical physical features of the LORP set forth in the MOU:
a. A continuous flow will be established and maintained in the
river channel from at or near the intake structure that diverts the
b. The establishment of the Owens River Delta Habitat Area, which is to enhance and maintain existing habitat consisting of riparian areas and ponds suitable for shorebirds, waterfowl, and other animals and to establish and maintain new habitat consisting of riparian areas and ponds suitable for shorebirds, waterfowl, and other wildlife and fishery resources within the Habitat Area.
c. The maintenance and/or establishment of certain off-river lakes and ponds to sustain diverse habitat for fisheries, waterfowl, shorebirds, and other wildlife and fishery resources.
d. Creation and maintenance of a 1500 acre Blackrock Waterfowl Habitat Area.
26. The MOU further requires that there be consultation with the MOU Parties, other agencies, and the public concerned with the development and implementation of the LORP plan throughout the development and implementation of the LORP plan.
MOU requires LADWP, as the lead agency, and the County, as a responsible
agency, to jointly prepare an EIR for the LORP.
The MOU requires that the draft EIR be completed by
MOU requires LADWP to commence the baseflow of 40 cfs in the river channel by
29. The MOU provides:
Extension of these deadlines may be granted by unanimous consent of the parties or due to circumstances beyond the control of DWP and/or the County.
30. Under the MOU’s dispute resolution provisions if any party is not reasonably discharging an obligation or performing a duty which the MOU requires, prior to commencing any litigation, the complaining party must notify all the other parties of the dispute and request in writing a meeting of the signatories to be held within 7 days to discuss the dispute and resolve differences.
the MOU, if a party reasonably believes that any other party has breached the
MOU by failing to discharge an obligation or perform a duty required of it, it
may institute an action for declaratory and injunctive relief in the
35. From March through October 2000, through correspondence and meetings, the MOU signatories discussed a number of issues concerning the LORP. These issues mostly concerned the description of the project. Principal areas of disagreement included the capacity of the pumpback station, the amount of the “seasonal habitat flows” to the delta, the goals for the delta (including the amount of “existing habitat”), the procedures and criteria for adjusting “base flows” to achieve the goals for the delta, and the amount of water under the MOU that is required to be made available to the Delta. The Agreement provides for a 50 cfs pumpback capacity. LADWP insisted that the project include a pumpback station of 150 cfs capacity rather than the maximum 50 cfs specified in the Agreement. The significance of the difference is that the MOU provides for a period of high habitat flows in the river (200 cfs) in years with average or higher runoff to provide benefits for the river and delta. The 150 cfs pumpback station would permit the recapture of nearly all the habitat flows before they reach the delta. An additional concern is that the larger pumpback station would be a preliminary step in using the river as a conveyance for water from potential new well fields developed for water export.
did not complete the LORP Draft EIR by
letter to the other MOU parties on
A deadline for
completion of the LORP Plan should be agreed to by the MOU Group. Additionally, the MOU required that the Draft
LORP EIR be completed by
Additionally, by letter to the other MOU parties on
The Sierra Club and Owens Valley Committee believe
that the LORP ecosystem management plan (LORP Plan, required in Section II.A of
the MOU) should be finalized now that the Department of Water and Power has
submitted their recent LORP delta and pumpback station project description to
the LORP EIR consultant (see 4 Oct. 2000 letter from Gene Coufal to MOU
Parties). As stated in its
41. By letter dated January 31, 2001, attorneys for the Sierra Club and Owens Valley Committee notified the City that the Sierra Club and the Owens Valley Committee deemed it to be in breach of the obligation under the MOU to prepare a draft EIR by September 30, 2000, and that it was in breach of other MOU obligations. The letter stated in relevant part:
MOU required that LADWP prepare a Draft LORP EIR by
has clearly breached its agreement to prepare a Draft LORP EIR by September 30,
2000 and in breach of its obligation of obtain the consent of the signatories
to the MOU in order to obtain an extension of time. Although some delays may reasonably be
expected to occur for reasons beyond LADWP’s control, which is why the MOU
parties already extended the original deadline, the City’s failure to meet the
extended deadline for the Draft LORP EIR does not appear to be beyond its
control. The City’s
delay in releasing a Draft EIR will likely result in a delay in implementation
of the LORP. This will result in
the continued unmitigated environmental impacts to the
in implementation for the LORP are a cause of great concern to the Sierra Club,
the OVC and other parties to the MOU.
The MOU parties should meet as soon as possible to discuss the timeframe
for completion of the Draft LORP EIR and other aspects of the LORP and to try
to establish a new deadline for the Draft EIR.
Any proposed new schedule for preparation of the Draft LORP EIR should
take into account the
its letter of
44. In its letter, the City asserted that “although the delays have increased the amount of work that has been required, they have not, it is hoped, set the program so far behind schedule that the implementation dates cannot be met.”
the MOU parties in March 2001, the City agreed to produce a draft EIR by
email to the MOU parties on
Sierra Club and the Owens Valley Committee submitted a letter, sent via email
Pursuant to the terms of the MOU we request a MOU Group meeting to discuss the release date of the draft LORP EIR/EIS. We would like the City and County along with John Gray, the EIR consultant, to explain the status of work on the EIR/EIS and why they cannot make the Oct. 26 deadline that we were assured would be met when we agreed to the time extension last spring.
50. Counsel for Plaintiffs Sierra Club and the Owens Valley Committee submitted a letter, dated October 29, 2001, to the other the MOU parties, requesting a meeting of the MOU parties and notifying the signatories of a dispute regarding the implementation of and compliance with the MOU and that the purpose of the October 30, 2001, meeting with representatives of all the MOU signatories was to discuss the current dispute and potential solutions. A copy of this letter is attached to this Complaint as Exhibit B.
MOU parties met on
52. Plaintiffs Sierra Club and the Owens Valley Committee did not and have not agreed to any further extension of time for preparation of the draft EIR.
54. The City’s draft agreement for a time extension did not contain a provision, set forth in the earlier Time Extension Agreement, that “the extension of the deadline for release of the draft EIR does not alter the deadline for implementation of flows in the river set forth in the MOU.”
55. By letter dated November 28, 2001, to Donald Mooney, counsel for OVC, the City Attorney’s Office responded to Mr. Mooney’s November 19 letter, requesting the City to state whether the request extension would affect the deadline for establishment of a 40 cfs flow in the river by June 13, 2003. A copy of the letter is attached to this Complaint as Exhibit C.
56. In this letter, the Assistant City Attorney stated the City “is committed to bringing this project to fruition.” The letter stated, without specifying, that there were “certain aspects of the EIR process, including the contract with URS [the EIR consultant] and EPA’s role in the process, that are beyond the control of LADWP.”
57. The letter ominously concluded:
At this time therefore, the best information that
LADWP can provide you is that the time extension to release the DEIR is likely
to have an effect on subsequent portions of this project. However, until the DEIR is released and a
more complete design of the pump back station is available it will not be
possible to determine the extent of that effect on specific portion of the
project, including the
58. The Sierra Club and the Owens Valley Committee, as amici in Inyo County v. City of Los Angeles and as signatories to the MOU, have a direct and beneficial interest in enforcing the MOU’s terms to ensure that LADWP completes the draft EIR and final EIR in accord with the MOU and that the LORP be implemented and water placed in the river consistent with the MOU’s express terms.
present and continuing controversy exists between Plaintiffs and LADWP
concerning whether LADWP breached its obligation to prepare a draft EIR by
CAUSE OF ACTION FOR DECLARATORY & INJUNCTIVE RELIEF
60. Plaintiffs incorporate by reference paragraphs 1 through 59, supra.
without just cause and not due to circumstances beyond their control, have
breached their duty under the MOU, to which Plaintiffs are signatories, as
modified by Extension Agreements, to complete and circulate a draft EIR for the
62. Plaintiffs have not, and will not, agree to any further extensions of time for production, completion, and circulation of the required draft EIR. The Real Parties-in-Interest have not, to date, agreed to an extension of time.
63. Plaintiffs have and are continuing to suffer injury as a result of Defendants’ breach of their duties and obligations under the MOU.
PRAYER FOR RELIEF
1. Plaintiffs pray that this Court, pursuant to Code of Civil Procedure section 1060, declare that LADWP had a duty under the MOU to complete a draft EIR for the Lower Owens River Project by October 26, 2001, and that LADWP has breached its duty to Plaintiffs’ detriment, and that such declaratory relief is necessary and proper because there is a continuing and present controversy between the parties as to their rights and obligations under the MOU, with respect to production and completion of the draft EIR.
2. Plaintiffs pray that the Court issue a mandatory injunction requiring completion of the draft EIR for the Lower Owens River Project by a date to be established and enforced by the Court, consistent with the intent of the MOU parties, and that such injunction notice LADWP that in the event that LADWP does not meet the Court’s deadline, the Court will consider, upon motion of Plaintiffs and/or the Real Parties-in-Interest, enjoining continuation of LADWP’s ground-water pumping within Inyo County, for export to the City of Los Angeles, until such time as LADWP completes and circulates the draft EIR and implements the LORP with a 30 cfs flow in the Lower Owens River in a manner consistent with the City’s obligations under the MOU.
3. For such other relief including attorneys’ fees, pursuant to Code of Civil Procedure section 1021.5, as is just and proper, and for such injunctive relief as may be necessary in conjunction with the Court’s declaratory judgment.
LAURENS H. SILVER
Attorney for Plaintiff Sierra Club
DONALD B. MOONEY