As CP&DR's Senior Editor Paul Shigley pointed out last week in his blog, retiring Chief Justice Ronald George of the California Supreme Court gained a well-earned reputation as a centrist and a unifier.
Now it will be up to his presumed successor, Tani Cantil-Sakauye, to carry George's approach forward at a time when significant planning and development litigation is likely to emerge. Schwarzenegger's climate change law, AB 32, is likely to meet some serious challenges in court over the next few years, especially as it is applied through the California Environmental Quality Act. SB 375, the regional planning sidekick of AB 32 that provides a streamlined CEQA process for certain projects, may also generate litigation in the years ahead.
Cantil-Sakauye's record as an appellate judge suggests that she is, as advertised, a moderate – careful, non-ideological, tending to deal with the specific facts of a case rather than broad legal theories. Like so many California judges lacking civil litigation experience, she has struggled with CEQA, which may be one of the reasons she has focused on the factual elements of CEQA cases. Read as a whole, her body of work on these cases suggests she might give a slight advantage to property owners over the government in a CEQA case, all other things being equal.
George served as chief justice longer than anyone in the last century, and his calm and centrist approach was a welcome change from the rollercoaster of the previous 20 years, when the court was dominated by super-liberal Chief Justice Rose Bird, who was eventually voted out of office, and then by super-conservative Chief Justice Malcolm Lucas, who was appointed by Ronald Reagan and ascended to the chiefship when Bird was ousted. The Bird court expanded governmental land use powers dramatically, especially in interpreting the CEQA, and the Lucas court subsequently pulled those powers back – most notably in Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553 (1990), which put local judges on notice that CEQA was not to be used to kill projects.
Cantil-Sakauye had little experience practicing law before Gov. George Deukmejian appointed her to the bench in 1990– just about the time the Citizens of Goleta Valley case was handed down. Coming out of law school at UC Davis – which has a strong program in natural resources law and has produced many CEQA experts – she worked for a few years as a prosecutor in the Sacramento County District Attorney's Office before becoming a deputy to Deukmejian's legal affairs secretary, Vance Ray. She was a trial judge in Sacramento for 15 years before Schwarzenegger elevated her to the Court of Appeal in 2005.
Deukmejian, a former attorney general, appointed a lot of prosecutors to the bench and more than a few of them have struggled with all areas of civil law and planning and development law in particular. Land use law is highly specialized and CEQA in particular is a complicated and peculiar animal – so much so that state law requires each county to designate "CEQA judges." Cantil-Sakauye was never designated as a CEQA judge by the Sacramento County Superior Court; for most of her 15 years there, her colleague James T. Ford held that distinction.
Prosecutors tend to be conservative, yet their experience teaches them to trust the government's judgment. Therefore many former prosecutors have tended to side with the government agencies that are the defendants in CEQA cases, rather than the environmental groups that are so often the plaintiffs.
Cantil-Sakauye doesn't quite fit this definition. Since her ascension to the Third District Court of Appeals, she has written four opinions that have captured CP&DR's attention. Unsurprisingly for an appellate court whose territory covers the Central Valley, three of them dealt primarily with natural resources issues. And three of the four – though not the same three – were CEQA cases. Her record in these cases shows her to be highly case-specific, focusing on the facts in each case and steering clear of opportunities to score ideological points.
Perhaps the best example of her non-ideological approach was her ruling in the only non-CEQA case whose opinion she wrote – a quirky takings case called Herzberg v. County of Plumas, 133 Cal.App.4th 1 (2005), which was issued in her first year on the appellate court.
If ever there was an opportunity to show pro-property rights zealousness, Herzberg was it. In the 1980s, Plumas County has passed an ordinance making it illegal for property owners in certain "open range" grazing areas to seize an animal that had strayed onto their property unless their property was fenced in. Represented by strident property rights lawyer Ronald Zumbrun, property owner Jack Herzberg sued, arguing that the ordinance required him to build a fence and, among other things, was an unconstitutional taking of his property because the cattle wandering onto his property created a physical occupation. Herzberg lost in the trial court and appealed to the Third District.
But Cantil-Sakauye didn't bite. She noted that the ordinance didn't require Herzberg to fence in his property and that he had other legal recourse besides confiscating the stray animals. She also knocked down the takings argument by citing cases all the way back to the granddaddy of them all, the 1978 U. S. Supreme Court ruling in Penn Central. She concluded that Herzberg had not been robbed of all economic use of his property, as takings law requires, because "the only potential economic burden of this ordinance is the occasional use of and damage to property caused by wandering cattle as they move on. Plaintiffs have not shown, nor can we perceive how plaintiffs could show, this limited burden interferences with their reasonable investment-backed expectations in buying this particular property within a traditional open grazing area when plaintiffs can always avoid it by fencing their property."
In other words, far from requiring Herzberg to fence in his property and trampling on his property rights, the ordinance protected Herzberg by allowing him to built a fence to keep stray animals out in an area otherwise designated for open grazing.
In all three CEQA cases, Cantil-Sakauye had to deal with the typical problem: a lawsuit filed to deal with a political, rather than a legal, difference. In one case, a city tried to shoot down a CEQA plaintiff opposed to a local Walmart based on standing. In a second case, local enviros pushed the envelope in arguing that an initial contract over the possible sale of water was subject to CEQA. In the third and most interesting case, the California Farm Bureau Federation fought a state effort to turn agricultural land into wetlands and habitat by arguing that the action was subject to CEQA.
The Walmart case, Citizens for Open Government v. City of Lodi, 144 Cal. App. 4th 865 (2006), was pretty straightforward. Citizens for Open Government had sued Lodi over the EIR on a local Walmart, but the city challenged the group's standing because the group had appealed based on issues raised by a different organization in the administrative hearing. Cantil-Sakauye disposed of this one quickly by noting that even the city's own notice to the group had stated it could appeal based on somebody else's issues.
The water contract case involved one of the most controversial natural resource issues in far northern California in recent years – the 2003 decision by the McCloud Community Services District (in Siskiyou County) to sell up to 1,600 acre-feet of water per year to a bottled water company owned by Nestlé. (Nestlé sells dozens of brands of bottled water, including Calistoga and Arrowhead). Local residents sued, claiming that the contract between the McCloud and Nestlé was subject to CEQA. In the Third District ruling, Cantil-Sakauye disagreed, saying that execution of the contract was conditional on many future steps, including CEQA analysis.
In so doing, she relied on a pretty well-known CEQA case from nearby Shasta County, Stand Tall on Principles (STOP) v. Shasta Union High Sch. Dist. (1991) 235 Cal.App.3d 772, in which the Third District ruled that the selection of a site for a high school was not subject to CEQA so long as CEQA analysis was completed before the project was constructed. It is interesting to note that in the '70s and '80s the STOP case easily could have gone the other way, but the Third District's ruling in STOP came down less than a year after the California Supreme Court's ruling forceful in Citizens of Goleta Valley, telling lower courts to rein in the environmentalists – and less than a year after Cantil-Sakauye was first appointed to the bench in Sacramento.
The third CEQA case is by far the most interesting, because the Farm Bureau – not always the biggest defender of CEQA – went to court to force the state to do a CEQA analysis on conversion of farmland to habitat. Despite this somewhat manipulative use of a CEQA lawsuit, Cantil-Sakauye agreed with the Farm Bureau – and read the law and the CEQA guidelines very narrowly in order to do so.
California Farm Bureau Federation v. California Wildlife Conservation Board, 143 Cal App.4th 173, was decided a month after the Lodi case and three months before the Nestle case. It involved an agreement between the Wildlife Conservation Board and a Colusa County farmer named Leroy Traynham for the WCB to buy a conservation easement on 235 acres of Traynham's property to expand a wetlands and riparian habitat corridor in the Lower Colusa Trough, an area important to waterfowl. A plan to restore the wetlands and habitat was approved – including, quite literally, the construction of new wetlands – and the Department of Fish & Game approved a CEQA exemption for the project. (Most of the property in question would be flooded as a seasonal wetland.)
The Farm Bureau Federation sued, claiming the land conversion should not be exempt from CEQA. In a long and very detailed opinion, Cantil-Sakauye agreed with the Farm Bureau, interpreting four potential CEQA exemptions narrowly along the way.
The most important exemption the state had put forth as a rationale for skipping CEQA was a so-called Class 13 Categorical Exemption, contained in the CEQA Guidelines, which provides an exemption for "the acquisition of land for fish and wildlife purposes including (a) preservation of fish and wildlife habitat; (b) establishing ecological reserves … and (c) preserving access to public lands and waters where the purpose of the acquisition is to preserve the land in its natural condition."
In her opinion, Cantil-Sakauye interpreted these provisions quite literally, concluding that the conversion of farmland to wetlands and habitat with the help of heavy construction equipment did not constitute preserving existing habitat, preserving land in its natural condition, or establishing ecological reserves. She even quoted Webster's Dictionary for a definition of "preserve:" "The language simply does not stretch to cover acquisitions for the purpose of physically constructing or creating and activity managing new wildlife habitat."
After dispensing with a couple of less-strongly-argued exemptions, she even rejected what is commonly known as the "common sense exemption," which permits a CEQA exemption if "it can be seen with certainty that the project will not have a significant effect on the environment."
Though the state asserted that converting farmland to wetlands and habitat quite obviously meets this criterion, Cantil-Sakauye did not agree. "In fact, this project is not a mere passive change in use, a cession of farming on the property," she wrote. "This project involves the physical reshaping of the land to create wetlands and upland for habitat." She then went into detail about how this reshaping would occur and how it might alter the environment.
If you ran across this kind of reasoning in a decision by somebody like the dense-but-reliably-conservative Samuel Alito, you'd conclude that he had burrowed deeply into the facts of the case in order to justify his conservative bias without actually revealing it too obviously. But with Cantil-Sakauye, it's hard to come to the same conclusion. Maybe she is fundamentally pro-landowner and will find any way – even rejecting CEQA exemptions – to get the government out of the way. More likely, like so many Republican-appointed judges these days, she's a case judge, focusing on the facts of the case and often interpreting the underlying laws almost too literally to reach a conclusion.
Of course, Cantil-Sakauye has not written a takings or CEQA decision in the last 3½ years; all four of the decisions described her came in her first two years on the bench. So perhaps her thinking has evolved. And it may be that over time she – like so many Supreme Court justices – will grow in a direction we can't predict and take the court with her. I'm betting that she won't. I'm betting that she will get the California Supreme Court to stick to the knitting on CEQA and takings cases, and not lift her head up very far out of the facts of the case at hand. That's likely to add up to a court that respects precedent and doesn't push too hard in one direction or the other in the years ahead.
-- Bill Fulton