Justia Zoning, Planning & Land Use Opinion Summaries

In these consolidated appeals, the issue is whether overlapping statutes that affect more than two million acres of federally owned forest land in southwestern Oregon are reconcilable and, therefore, operative. The appeals arise from three sets of cases filed by an association of fifteen Oregon counties and various trade associations and timber companies. Two of the cases challenge Proclamation 9564, through which the President expanded the boundaries of the Cascade-Siskiyou National Monument. Two others challenged resource management plans that the United States Bureau of Land Management (BLM), a bureau within the United States Department of the Interior (Interior), developed to govern the use of the forest land. The final case seeks an order compelling the Interior Secretary to offer a certain amount of the forest’s timber for sale each year. The district court entered summary judgment for the plaintiffs in all five cases.   The DC Circuit reversed. The court explained that the O & C Act provides the Secretary three layers of discretion: first, discretion to decide how land should be classified, which includes the discretion to classify land as timberland or not; second, discretion to decide how to balance the Act’s multiple objectives, and third, discretion to decide how to carry out the mandate that the land classified as timberland be managed “for permanent forest production.” Further, the court held that the 2016 RMPs are well within the Secretary’s discretion under the O & C Act and are consistent with the Secretary’s other statutory obligations. View "American Forest Resource Council v. USA" on Justia Law

The City of San Diego (City) appealed a judgment entered in favor of Save Our Access on its petition for writ of mandate challenging the City’s approval of a 2020 ballot measure proposing amendments to the San Diego Municipal Code and a City ordinance to exclude the Midway-Pacific Highway Community Plan Area from the 30-foot height limit for construction of buildings within the City’s Coastal Zone. The superior court determined the City failed to comply with the California Environmental Quality Act (CEQA) in approving the ballot measure because the administrative record did not support the City’s claim that a 2018 program environmental impact report for the Midway-Pacific Highway Community Plan Update considered the environmental impacts associated with excluding the area from the City’s Coastal Zone height limit. The court also concluded the administrative record supported a fair argument that the ballot measure may have significant environmental impacts that were not previously examined. The court issued a writ of mandate directing the City to set aside its approvals of the ordinance that submitted the ballot measure to the voters and enjoined the City “from taking any steps to further the Project until lawful approval is obtained from the City.” Finding no reversible error, the Court of Appeal affirmed the trial court's judgment. View "Save Our Access v. City of San Diego" on Justia Law

The Missouri River, in its natural state, experienced annual flooding that constantly morphed its path and the topography of its floodplain, rendering it unproductive for development. The 1944 Flood Control Act (FCA) authorized the construction of dams to create a reservoir storage system. The FCA required the Army Corps of Engineers to promote navigation and flood control and, secondarily, fish and wildlife conservation. Under the 1945 Bank Stabilization and Navigation Project, the Corps altered the River’s water flow (location, volume, and rate); the floodplain was no longer dynamic by 1980. The Corps' 1979 Master Manual prioritized flood control over recreation and wildlife By 2005, 95 percent of the floodplain was developed for agricultural, urban, and industrial uses. The programs had significant environmental side effects, eliminating fish and bird habitats and interrupting wildlife breeding cycles. In 1986, Congress authorized the Corps to purchase River-adjacent land to recreate lost habitats. The Fish and Wildlife Service (FWS) placed several species on the endangered species list. The Corps did not make changes recommended by FWS, concerned about exacerbating flooding. Lawsuits followed. The district court ordered the Corps to revise its Master Manual,.The 2004 Master Manual was intended to restore the River to a more natural state.About 372 plaintiffs who operate River-adjacent farms in six states sued, alleging the 2004 Changes caused frequent and severe flooding on their farms and amounted to permanent, physical takings under the Fifth Amendment. The Claims Court determined there was a taking and awarded compensation for the diminished value of the land but dened damages for lost crops. The Federal Circuit affirmed with respect to the takings claims but vacated the denial of crop damages and a finding that the Government did not causally contribute to 2011 flooding. View "Ideker Farms, Inc. v. United States" on Justia Law

Disputes over the allocation of water within the Klamath Basin in southern Oregon and northern California, particularly during the recent period of severe and prolonged drought, have prompted many lawsuits in this and other courts. In this episode, Klamath Irrigation District (“KID”) petitions for a writ of mandamus to compel the district court to remand KID’s motion for preliminary injunction to the Klamath County Circuit Court in Oregon. The motion had originally been filed by KID in that Oregon court but was removed to federal district court by the U.S. Bureau of Reclamation (“Reclamation”), a federal agency within the U.S. Department of Interior. Reclamation was identified by KID as the respondent for KID’s motion.   The Ninth Circuit denied KID’s petition for writ of mandamus. The panel considered the five factors in Bauman v. U.S. District Court, 557 F.3d 813, 817 (9th Cir. 2004), in determining whether mandamus was warranted. The panel began with the third factor—clear error as a matter of law— because it was a necessary condition for granting the writ of mandamus. The panel rejected KID’s attempt to circumvent KID II, the Tribes’ rights, and the effect of the ESA by characterizing the relief it sought as an application of the ACFFOD. The panel expressed no views on the merits of KID’s underlying motion for preliminary injunction and concluded only that the district court did not err in declining to remand the motion for preliminary injunction to the state court. The panel held that it need not consider the remaining Bauman factors because the third factor was dispositive. View "IN RE: KLAMATH IRRIGATION DISTRICT V. USDC-ORM" on Justia Law

Sackett began backfilling an Idaho lot with dirt to build a home. The Environmental Protection Agency informed Sackett that the property contained wetlands and that the backfilling violated the Clean Water Act, which prohibits discharging pollutants into “the waters of the United States,” 33 U.S.C. 1362(7). The EPA ordered Sackett to restore the site, threatening penalties of over $40,000 per day. The EPA classified the Sacket wetlands as “waters of the United States” because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The Ninth Circuit affirmed summary judgment in favor of the EPA.The Supreme Court reversed. CWA jurisdiction over an adjacent wetland requires that the adjacent body of water constitutes waters of the United States (a relatively permanent body of water connected to traditional interstate navigable waters) and a continuous surface connection between the wetland and that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”The Court reviewed the history of judicial interpretation of “the waters of the United States” and enforcement by federal agencies, which argued that the significant-nexus test was sufficient to establish jurisdiction over “adjacent” wetlands. Under that test, nearly all waters and wetlands are potentially susceptible to regulation, “putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.” The CWA’s use of “waters” encompasses only relatively permanent, standing, or continuously flowing bodies, ordinarily called streams, oceans, rivers, and lakes. Wetlands qualify as “waters of the United States” only if “indistinguishable from waters of the United States,” having a continuous surface connection to bodies that are waters of the United States in their own right, with no clear demarcation between waters and wetlands. View "Sackett v. Environmental Protection Agency" on Justia Law

In 2005, the Regents adopted a long-range development plan (LRDP) for UC Berkeley through the year 2020. An Environmental Impact Report (EIR, California Environmental Quality Act (Pub. Resources Code, 21000) noted the LRDP “represents a maximum amount of net new growth.” which the University could substantially exceed only by amending the LRDP. In 2018, the Regents approved a new development for additional academic space and campus housing and certified a Supplemental EIR, which established an updated population baseline.SBN challenged decisions to increase enrollment beyond the level described in the 2005 EIR without further CEQA review. On remand, the trial court found that parts of the SEIR did not comply with CEQA and ordered the Regents to revise the SEIR and suspend enrollment increases. The Regents cited its certification of a 2021 LRDP and related EIR and Senate Bill 118, which modifies section 21080.09 to clarify that “Enrollment or changes in enrollment, by themselves, do not constitute a project” under CEQA and limit the remedies available if a court finds deficiencies in an environmental review based on enrollment.The court of appeal vacated, holding that certification of the 2021 EIR and S.B. 118 moot SBN’s challenge to the enrollment increases and make unenforceable the orders suspending enrollment increases. The SEIR’s project description complied with CEQA and there was no error in the discussion of mitigation measures for historic resources. View "Save Berkeley's Neighborhoods v. Regents of the University of California" on Justia Law

The eight-acre San Jose City View Plaza contained nine buildings, including the Bank, built in 1971, which later housed the County Family Court. The Bank was eligible for listing on the California Register of Historic Resources and National Register of Historic Places. The site development permit provided for the demolition of all structures, followed by the construction of three, 19-story office towers, 65,000 square feet of ground-floor retail, and five levels of underground parking.The city council certified the Downtown Strategy 2040 final environmental impact report under the California Environmental Quality Act (Pub. Resources Code 21000 (CEQA)), finding that the Plaza required a supplemental environmental impact report (SEIR). The draft SEIR identified the proposed demolition of the buildings as a “significant unavoidable impact” and presented mitigation measures, to document the structures, advertise their availability for relocation, and otherwise make the structures available for salvage. The city voted not to designate the Bank as a city landmark and approved the permit, certifying the Final SEIR and rejecting project alternatives as infeasible because the “anticipated economic, social, and other benefits” of the project outweighed its “significant and unavoidable impacts.”After the trial court denied a mandate petition filed by opponents, the Bank was demolished. The court of appeal affirmed. The Final SEIR’s discussion of mitigation for the unavoidable loss of significant historic resources complied with CEQA. San Jose did not abuse its discretion by briefly considering and rejecting additional mitigation measures. View "Preservation Action Council of San Jose v. City of San Jose" on Justia Law

Front Range Feedlots, LLC challenged certain orders issued by the Colorado State Engineer, and the District Court for Water Division 1 (the “water court”). Specifically, Front Range challenged the State Engineer’s authority to issue an Order to Comply with a February 4, 2020 substitute water supply plan issued to Front Range (the “2020 SWSP”). Front Range further contended that the water court abused its discretion in several ways when it issued its Order Granting Mandatory Injunction, requiring Front Range to comply with the 2020 SWSP and the Order to Comply. The Colorado Supreme Court concluded: (1) under the plain language of the applicable statutes, the State Engineer had the authority to issue the Order to Comply; (2) the State Engineer had the authority to enforce the terms and conditions of the 2020 SWSP after the expiration of that SWSP and Front Range’s withdrawal of its related water court application; (3) the State Engineer properly attached the 2020 SWSP terms and conditions to Front Range, rather than to the water rights at issue; (4) the State Engineer had jurisdiction to require the replacement of depletions from pre-application pumping; and (5) the water court properly exercised its discretion in ordering Front Range to acquire additional replacement sources. View "Front Range Feedlots v. Rein et al." on Justia Law

After the San Francisco Planning Commission approved a final mitigated negative declaration for the owner’s proposed renovation of a residence, Kaufman, the owner of an adjacent property, appealed the matter to the San Francisco Board of Supervisors, which reversed the approval. The owner filed a petition for writ of mandate against the City and County, the Board, the Planning Commission, and the Planning Department, naming Kaufman as a real party in interest. In response,Kaufman filed a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) law (Code Civil Procedure 425.16), arguing that the petition arose from his protected petitioning activity and lacked minimal merit. The trial court granted the anti-SLAPP motion and awarded Kaufman attorney fees as the prevailing party. The court of appeal reversed. The trial court erred in finding the mandamus petition arose from Kaufman’s protected conduct, as the activities that form the basis for the petition’s causes of action are all acts or omissions of the Board. That Kaufman’s administrative appeal preceded or even triggered the events leading to the petition’s causes of action against the Board did not mean that the petition arose from Kaufman’s protected conduct within the contemplation of the anti-SLAPP law. View "Durkin v. City and County of San Francisco" on Justia Law

The State of Alaska Department of Fish and Game brought this action against the Board and several federal officials, alleging that the changes violated the Alaska National Interest Lands Conservation Act (“ANILCA”) and the Administrative Procedure Act. Before the district court issued its decision, the Kake Hunt ended, and the district court deemed the challenge to it moot. And while this appeal was pending, the partial Unit 13 closure expired.   The Ninth Circuit reversed in part and vacated in part the district court’s decision in an action challenging the Federal Subsistence Board’s approval in 2020 of two short-term changes to hunting practices on federal public lands in Alaska, specifically (1) the Board’s opening of an emergency hunt for Intervenor, the Organized Village of Kake; and (2) the Board’s partial temporary closure of public lands in game management Unit 13 to nonsubsistence users.   The panel first held that Alaska’s claim that the Board violated ANILCA by opening the 60-day emergency Kake hunt without statutory authority was not moot because it fit within the mootness exception of being capable of repetition yet evading review. Alaska’s claim that ANICLA did not authorize the federal government to open emergency hunting seasons raised a question of first impression in this circuit and required resolution of complicated issues of statutory interpretation. Noting that the district court had not reached the merits, the panel remanded this claim to the district court. With regard to Alaska’s partial Unit 13 closure claim, the panel vacated the part of the district court’s order that addressed the claim. View "STATE OF ALASKA DEPARTMENT OF V. FEDERAL SUBSISTENCE BOARD, ET AL" on Justia Law