Salmon Protection and Watershed Network v. County of Marin
2012 DJDAR 5063
No. A133109 (April 20, 2012) (Cal. Ct. of Appeal, 1st App. Dist.)
Salmon Protection and Watershed Network (SPAWN) filed a petition for writ of mandate against the County of Marin, alleging Marin failed to comply with the California Environmental Quality Act (CEQA) when certifying its General Plan Update due to inadequate analysis of the cumulative impacts on steelhead and salmon in the watershed.
SPAWN and the County reached a series of tolling agreements to give them time to try to resolve the dispute rather than require SPAWN to file its action within 30 days as otherwise required by CEQA. After settlement discussions fizzled, SPAWN filed suit on the final day agreed to in the tolling agreement.
Subsequently, a group of property owners, who were concerned about their ability to develop their property, intervened and claimed the suit by SPAWN was untimely and that no tolling agreement was allowed by CEQA. The trial court disagreed, and the interveners appealed.
The Court of Appeal first examined Public Resources Code section 21167(b) which states an action challenging a public agency determination that a project may have a significant impact on the environment “shall be commenced within 30 days” of the notice of determination (NOD). The Court agreed with interveners that there is a strong public policy for prompt disposition of CEQA challenges. The Court, however, found there was an “equally strong public policy … to encourage the settlement of controversies in preference to litigation.” Not only are settlements essential to keep the civil system from breaking down, but CEQA itself encourages settlement. Sections 21167.8 and 21167.9 encourage settlement after litigation has begun. Further, an amendment to CEQA, section 21167.10 (effective July 1, 2011), authorizes prelitigation mediation which automatically tolls the statute of limitation periods until mediation is complete.
(Section 21167.10 allows any party to request mediation with the lead agency and real party in interest within five days of the agency filing its NOD. If the agency accepts, tolling occurs until mediation is complete. If it fails to accept, the request is deemed denied within five days of receipt of the request. This provision “sunsets” as of January 1, 2016, absent legislative extension.)
The interveners also argued Government Code section 65009 imposes a 90-day limitation to commence an action against a county decision “pursuant to this division,” including general plan goals and policies. Without deciding whether such provision applies to a CEQA challenge, the Court held a tolling agreement could also extend such a provision.
This case confirms that a policy many governments are using – tolling agreements to try to resolve disputes instead of litigation – is permissible, even where statutes have seemingly mandatory filing deadlines.
Prepared by John Reaves