Filed 8/26/13 AG Land Trust v. Marina Coast Water Dist. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

AG LAND TRUST,

Plaintiff and Respondent,

v.

MARINA COAST WATER DISTRICT,

Defendant and Appellant.

 H038550

 (Monterey County

 Super. Ct. No. M105019)

I. INTRODUCTION

This CEQA1action arises from the approval of the Regional Desalination Project 

by appellant Marina Coast Water District (Marina Coast). The Regional Desalination 

Project was to be owned and operated by Marina Coast, the Monterey County Water 

Resources Agency (Water Resources Agency), and the California American Water 

Company (Cal-Am), a corporation regulated by the California Public Utilities 

Commission (PUC). Cal-Am‟s participation was to include the construction of a 

distribution system to deliver the desalinated water to customers on the Monterey 

Peninsula.

 

1 California Environmental Quality Act, Public Resources Code section 21000 

et seq. All further statutory references are to the Public Resources Code unless otherwise 

indicated.
2

Respondent Ag Land Trust, a nonprofit group interested in preserving Monterey 

County farmland, challenged Marina Coast‟s approval of the Regional Desalination 

Project by filing a petition for a writ of mandate in the superior court. In support of its 

petition, Ag Land Trust argued that Marina Coast, not the PUC, should be the lead 

agency for CEQA purposes and that the environmental impact report (EIR) prepared by 

the PUC was inadequate. After a court trial, the trial court granted the first amended 

petition for writ of mandate, entered judgment in Ag Land Trust‟s favor, and issued a 

peremptory writ of mandate directing Marina Coast to set aside its approval of the 

Regional Desalination Project.

While Marina Coast‟s appeal from the judgment was pending, the PUC issued a 

decision finding that Cal-Am had withdrawn its support for the Regional Desalination 

Project and stating that the project “has no reasonable prospect of achieving its goals.” 

(Application of California-American Water Company (2012) Cal. P.U.C. Dec. No. 12-07-

008 [2012 Cal.PUC LEXIS 300], p. *28 (Decision No. 12-17-008).) We took judicial 

notice of the PUC‟s decision (Evid. Code, §§ 459, 452, subd. (c)) and requested 

supplemental briefing from the parties on the issue of whether the decision had rendered 

the appeal moot. For the reasons stated below, we determine that the appeal is moot and 

the appropriate disposition under the circumstances of this case is to reverse the judgment 

with directions to the trial court to dismiss the petition for a writ of mandate as moot. 

(See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul); Coalition for a 

Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 944-945 

(Coalition for a Sustainable Future).)

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Regional Desalination Project

Appellant Marina Coast is a public utility that provides water service to the City of 

Marina and its vicinity as well as the former Ford Ord. Cal-Am is a corporation that 

provides water service to parts of the Monterey Peninsula adjacent to Marina Coast‟s
3

service area. As a privately-owned public utility, Cal-Am is regulated by the PUC. 

Within Monterey County, the Water Resources Agency is responsible for increasing the 

water supply and preventing its waste and diminution.2 As this court has previously 

noted, “[i]t is well documented that water availability is a critical problem throughout 

Monterey County.” (Save Our Peninsula Committee v. Monterey County Bd. of 

Supervisors (2001) 87 Cal.App.4th 99, 108 (Save Our Peninsula).)

The history of the Regional Desalination Project begins in 1995, when “the State 

Water Resources Control Board issued Order No. 95-10 and related Decision No. 1632. 

Order No. 95-10 found that [Cal-Am], which was the principal supplier of water to the 

Monterey Peninsula, had diverted excess water from the Carmel River basin „without a 

valid basis of right,‟ causing environmental harm. Cal-Am was ordered to substantially 

limit its diversions, to mitigate the environmental effects of its excess usage and to 

develop a plan for obtaining water legally.” (Save Our Peninsula, supra, 87 Cal.App.4th 

at p. 108.)

Among Cal-Am‟s subsequent efforts to find a legal water source was a proposal 

for the Coastal Water Project, which included a water desalination plant. In 2003, the 

PUC designated itself as the lead agency for environmental review of the Coastal Water 

Project. In 2004, Cal-Am filed an application with the PUC for a certificate of public 

convenience and necessity for construction and operation of the Coastal Water Project. 

The PUC issued a notice of preparation of an EIR in 2006.

In 2008, Marina Coast and other public agencies proposed an alternative 

desalination project known as the Regional Project. The Regional Project, also known as 

the Regional Desalination Project, involved three primary elements. The Water 

Resources Agency was to own, install, operate and maintain the wells from which 

brackish water would be extracted. Marina Coast was to own, construct, and operate the 

 

2

The Water Resources Agency and Cal-Am are not parties to this appeal.
4

desalination plant and transport desalinated water to a delivery point, where Marina Coast 

would receive some water for delivery to its customers and Cal-Am would also receive 

some water. Cal-Am was to construct a distribution system to deliver the desalinated 

water to its customers on the Monterey Peninsula. The PUC approved Cal-Am‟s 

participation in the Regional Desalination Project.

The PUC‟s January 2009 draft EIR evaluated the Regional Desalination Project 

and the Coastal Water Project proposed by Cal-Am. The final EIR was issued by the 

PUC and certified in December 2009. The PUC did not approve a specific project.

In March 2010, Marina Coast‟s Board of Directors approved acquisition of the 

Armstrong Ranch property for the location of a water desalination plant. Thereafter, on 

April 5, 2010, the Board of Directors approved the Regional Desalination Project on the 

condition that the PUC approve a settlement agreement pertaining to the Regional 

Desalination Project between Cal-Am, Marina Coast, and the Water Resources Agency. 

The PUC approved the settlement agreement and issued a certificate of public 

convenience and necessity to Cal-Am for the Regional Desalination Project in 

March 2011. (Application of California American Water Company (2011) Cal. P.U.C. 

Dec. No. 11-03-008 [2011 Cal.PUC LEXIS 141], p. *1.)

B. Ag Land Trust’s Petition for a Writ of Mandate

Ag Land Trust is a self-described “California nonprofit public benefit corporation 

created with the intent to preserve Monterey County farmland . . . .” In April 2010 

Ag Land Trust filed its first amended petition for a writ of mandate against respondent 

Marina Coast. In its petition, Ag Land Trust asserted that Marina Coast had formally 

approved the Regional Project on April 5, 2010, in reliance on the final EIR certified by 

the PUC in 2009 and a March 2010 addendum. Ag Land Trust sought declaratory relief, 

consisting of a declaration that Marina Coast had a duty to identify or obtain water rights 

for the Regional Project and a declaration that the Regional Project would violate the 

Monterey County Water Resources Agency Act. Additionally, Ag Land Trust sought a 
5

peremptory writ of mandate directing Marina Coast to set aside its approvals of the 

Regional Desalination Project and to prepare a legally adequate EIR in compliance with 

CEQA.

C. The Trial Court’s Statement of Decision and Judgment

A court trial on Ag Land Trust‟s petition for writ of mandate was held on 

October 27, 2011. The trial court‟s amended statement of decision granting the petition 

was filed on February 2, 2012. The court found that (1) the final EIR is deficient because 

Marina Coast, not the PUC, was the lead agency under CEQA for the Regional Project 

since Marina Coast was the first to approve the project; (2) the final EIR is inadequate 

because it did not include a discussion of the availability of groundwater for the Regional 

Project and assumes that groundwater rights will be perfected in the future; (3) the trial 

court had jurisdiction over the matter since the PUC did not have authority to regulate 

Marina Coast with respect to the Regional Project; and (4) the Water Resources Agency 

and Cal-Am were not indispensible parties.

The judgment granting the first amended petition for writ of mandate and ordering 

issuance of a peremptory writ of mandate was filed on April 17, 2012. The judgment 

also included the trial court‟s findings, as follows: “The Court FINDS AND 

DETERMINES that Marina Coast Water District prejudicially abused its discretion and 

failed to proceed in the manner required by law in making its approvals of the Regional 

Desalination Project on March 16, 2010 and April 5, 2010, by proceeding as a 

responsible agency rather than as a lead agency, by failing to properly analyze the 

environment impact report as a lead agency under CEQA, and by failing to properly and 

adequately identify, discuss, and address the environmental impacts of the project, 

including but not limited to water rights, contingency plan, assumption of constant 

pumping, exportation of groundwater from the Salinas Valley Groundwater Basin, brine 

impacts, impacts on overlying and adjacent properties, and water quality, as required here 

for a lead agency under CEQA.” The court reserved jurisdiction over Ag Land Trust‟s 
6

claim for an award of private attorney general fees and costs under Code of Civil 

Procedure section 1021.5.

On April 17, 2012, the trial court issued a peremptory writ of mandate directing 

Marina Coast to “[v]acate and set aside its March 16, 2010 and April 5, 2010 approvals 

of the Regional Desalination Project, and each step approved by [Marina Coast] pursuant 

to . . . section 21168.9, subdivision (a). Further action to approve the project beyond 

setting aside and vacating these approvals by [Marina Coast] shall not be taken, except in 

accordance with the Judgment Granting First Amended Petition for Writ of Mandate 

([CEQA]) and Ordering Issuance of Peremptory Writ of Mandate.” The peremptory writ 

of mandate also directed Marina Coast to prepare a legally adequate EIR and to otherwise 

comply with CEQA in any subsequent action to approve the project.

In June 2012, Marina Coast filed a timely notice of appeal from the judgment.

III. DISCUSSION

On appeal, Marina Coast contends that the trial court lacked jurisdiction in this 

case because collateral attacks on PUC decisions are prohibited under Public Utilities 

Code section 1759, subdivision (a). Marina Coast also contends that the judgment should 

be reversed due to several procedural bars, including “statutory preclusion,” res judicata, 

mootness with respect to the land acquisition, lack of ripeness in the absence of final 

project approvals, failure to exhaust administrative remedies, failure to join indispensible 

parties, and failure to grant Marina Coast‟s motion to augment the record with the PUC‟s 

final project approvals. Additionally, Marina Coast argues that the trial court erred on the 

merits, since the PUC properly acted as the lead agency under CEQA and the PUC‟s EIR 

for the Regional Desalination Project was adequate.3

 

3

This court granted the PUC‟s application to file an amicus curiae brief regarding 

the jurisdictional issue. Ag Land Trust filed an answer to the amicus curiae brief.
7

As we will discuss, we will not consider the merits of the appeal because we find 

that the appeal is moot due to an event that occurred while the appeal was pending. In its 

opening brief, Marina Coast acknowledges that in July 2012 the PUC granted Cal-Am‟s 

request to withdraw from the Regional Desalination Project and admits that “it is unlikely 

that the [Regional Desalination Project] will be built even if [Marina Coast] prevails in its 

appeal . . . .” On our own motion, we took judicial notice (Evid. Code, §§ 459, 452, 

subd. (c)) of the PUC‟s July 12, 2012 decision finding that Cal-Am has withdrawn its 

support for the Regional Desalination Project and granting Cal-Am‟s motion to withdraw 

its petition for clarification and modification of a prior PUC decision pertaining to the 

Regional Desalination Project. (Decision No. 12-07-008, supra, pp. **27-28, 36.) The 

PUC also found in its July 12, 2012 decision that the Regional Desalination Project “has 

no reasonable prospect of achieving its goals.” (Id. at p. *28.)

Since it appeared that Cal-Am‟s withdrawal was potentially fatal to the Regional 

Desalination Project, we asked the parties to submit supplemental briefing addressing the 

issue of whether the appeal must be dismissed because the PUC‟s action had rendered the 

appeal moot. We also asked the parties to include a discussion of the following issues: 

(1) the current status of the Regional Desalination Project; (2) the general rule that the 

reviewing court may not issue an advisory opinion; and (3) assuming for purposes of 

argument that the appeal is moot, whether the appropriate disposition is reversal of the 

judgment and remand with directions to the trial court to dismiss the petition for a writ of 

mandate.

A. The Parties’ Contentions

Ag Land Trust and Marina Coast submitted supplemental briefing in which they 

agree that the Regional Desalination Project “will not go forward.” Both parties also 

argue that the appeal is not moot.

Marina Coast contends in its supplemental letter brief that the appeal is not moot 

because Cal-Am “now seeks approval of a project that „includes many of the same 
8

elements previously analyzed‟ ” in the EIR prepared for the Regional Desalination 

Project. Citing section 21166, Marina Coast further explains that “[t]he existing EIR is 

being supplemented by a forthcoming Subsequent EIR that will „utilize relevant data‟ 

from the existing EIR.” 4 Marina Coast also asserts that the PUC‟s July 12, 2012 decision 

had no bearing on Marina Coast‟s property acquisition.

Alternatively, Marina Coast argues that even if the appeal is moot, this court 

should exercise its discretion to decide the issues raised on appeal under the exception for 

an issue of public importance likely to recur. Specifically, Marina Coast maintains that 

the issue of the superior court‟s jurisdiction “in collateral proceedings to review and 

correct CPUC decisions relating to time-sensitive CPUC projects” falls into that 

exception. Marina Coast also argues that resolution of the jurisdictional issue is 

necessary because Ag Land Trust has been awarded attorney‟s fees, which should have 

been denied since the trial court lacked jurisdiction in this case.

Ag Land Trust contends in its supplemental letter brief that the appeal is not moot 

because an actual controversy remains as to the adequacy of the EIR for the Regional

Desalination Project. According to Ag Land Trust, “Marina Coast is in the process of 

using [its 2010] approvals and the EIR to pursue a different desalination plant at 

Armstrong Ranch.” 5 Ag Land Trust therefore argues that an actual controversy remains 

as to the deficiencies in the EIR that were identified by the trial court in this case. 

Alternatively, if this court determines that the appeal is moot, Ag Land Trust urges that 

the appeal be simply dismissed, which will have the effect of affirming the judgment.

 

4 We granted Marina Coast‟s request for judicial notice of a PUC document 

entitled “NOTICE OF PREPARATION Environmental Impact Report for the CalAm 

Monterey Peninsula Water Supply Project,” dated October 2012.

5 We granted Ag Land Trust‟s request for judicial notice of various documents 

relating to Marina Coast‟s “new desalination plant” project and the February 6, 2013 

order awarding attorney‟s fees to Ag Land Trust.
9

B. Mootness

The rules governing the determination of whether an appeal is moot are well 

established. “It is settled that „the duty of this court, as of every other judicial tribunal, is 

to decide actual controversies by a judgment which can be carried into effect, and not to 

give opinions upon moot questions or abstract propositions, or to declare principles or 

rules of law which cannot effect the matter at issue in the case before it. It necessarily 

follows that when, pending an appeal from the judgment of a lower court, and without 

any fault of the defendant, an event occurs which renders it impossible for this court, if it 

should decide the case in favor of plaintiff, to grant him [or her] any effectual relief 

whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. 

[Citations.]‟ [Citations.]” (Paul, supra, 62 Cal.2d at p. 132; see also MHC Operating 

Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215 [case is moot 

when reviewing court‟s decision can have no practical impact].)

However, the appellate court has the inherent power to retain a moot appeal under 

three discretionary exceptions: (1) the case presents an issue of broad public interest that 

is likely to recur; (2) the parties‟ controversy may recur; and (3) “a material question 

remains for the court‟s determination [citation].” (Cucamongans United for Reasonable 

Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 480 

(Cucamongans).)

C. Analysis

In the present case, the actual controversy between the parties was set forth in 

Ag Land Trust‟s writ petition, which sought a peremptory writ of mandate directing 

Marina Coast to “vacate and set aside its approvals of the Regional Desalination Project, 

and each step approved by [Marina Coast], and . . . [to] prepare, circulate and consider a 

legally adequate environmental impact report and otherwise comply with the [CEQA] in 

any subsequent action taken to consider and/or approve the Project.” Thus, the actual 

controversy in this case centered on Ag Land Trust‟s challenge to Marina Coast‟s 
10

approvals of the Regional Desalination Project and the adequacy of the EIR for that 

particular project.

Although the parties agree that the Regional Desalination Project will not go 

forward since Cal-Am has withdrawn its support, the parties nevertheless contend that an 

actual controversy remains with regard to the adequacy of the EIR that was prepared for 

the Regional Desalination Project. We disagree, since the EIR was specific to the 

approved Regional Desalination Project, as is required under CEQA.

The provisions of CEQA provide, for example, that “[t]he purpose of an 

environmental impact report is to identify the significant effects on the environment of a 

project, to identify alternatives to the project, and to indicate the manner in which those 

significant effects can be mitigated or avoided.” (§ 21002.1, subd. (a), italics added.) 

“An EIR shall describe a range of reasonable alternatives to the project. . . .” (Cal. Code 

Regs., tit. 14, § 15126.6, subd. (a), italics added.) “The degree of specificity required in 

an EIR will correspond to the degree of specificity involved in the underlying activity 

which is described in the EIR. [¶] (a) An EIR on a construction project will necessarily 

be more detailed in the specific effects of the project . . . . ” (Cal. Code Regs., tit. 14, 

§ 15146, italics added.) Accordingly, where, as here, the issues on appeal concern the 

adequacy of the EIR for a project that will not be implemented, the appeal is generally 

moot. (See, e.g., Coalition for a Sustainable Future, supra, 198 Cal.App.4th at p. 941.) 

We are not also convinced that the challenge to the adequacy of the EIR for the 

Regional Desalination Project remains an actual controversy under section 21166, as 

Ag Land Trust suggests. Section 21166 concerns the conditions under which a 

supplemental EIR will be required, as stated in the statute in relevant part: “[w]hen an 

[EIR] has been prepared for a project . . . no subsequent or supplemental [EIR] shall be 

required . . . , unless one or more of the following events occurs: [¶] (a) Substantial 

changes are proposed in the project which will require major revisions of the [EIR]. [¶] 

(b) Substantial changes occur with respect to the circumstances under which the project is 
11

being undertaken which will require major revisions in the [EIR]. [¶] (c) New 

information, which was not known and could not have been known at the time the [EIR] 

was certified as complete, becomes available.”

Under section 21166, therefore, a supplemental EIR “is a subsequent version of an 

EIR that revises the earlier EIR to make it adequate for a project‟s approval after 

conditions have changed.” (Mani Brothers Real Estate Group v. City of Los Angeles

(2007) 153 Cal.App.4th 1385, 1397.) Section 21166 is not applicable under the 

circumstances of the present case, where the Regional Desalination Project approved by 

Marina Coast will not be implemented due to Cal-Am‟s withdrawal.

The additional argument that an actual controversy remains regarding the 

adequacy of the EIR for the Regional Desalination Project since some elements or data 

from that EIR may be used in the future environmental impact analysis of a new 

desalination project is similarly unconvincing. By making this argument, the parties are 

implicitly requesting that this court provide an advisory opinion regarding the merits of 

the trial court‟s finding that the EIR for the now defunct Regional Desalination Project is 

legally inadequate. However, we must decline the parties‟ request, since “ „[t]he 

rendering of advisory opinions falls within neither the functions nor the jurisdiction of 

this court.‟ [Citation.]” (Salazar v. Eastin (1995) 9 Cal.4th 836, 860 (Salazar).)

Absent an actual controversy, we also decline to issue an advisory opinion on the 

issue of whether the trial court properly exercised jurisdiction in this case under Public 

Utilities Code section 1759, subdivision (a). (See Salazar, supra, 9 Cal.4th at p. 860.) 

Further, we do not find that this moot appeal presents a jurisdictional issue of broad 

public interest that is likely to recur, since the record does not reflect that the 

jurisdictional issue has the potential to extend, if at all, beyond one proposed desalination 

project. (See Cucamongans, supra, 82 Cal.App.4th at p. 479.) In any event, we believe 

that if the jurisdictional issue arises, the issue may be determined in a future case 

involving an actual controversy.
12

Having determined that the appeal is moot, and also having declined to issue an 

advisory opinion, we next consider the appropriate disposition.

D. The Appropriate Disposition

The general rule is that “when a case becomes moot pending an appellate decision, 

„the court will not proceed to a formal judgment, but will dismiss the appeal.‟ 

[Citations].” (Paul, supra, 62 Cal.2d at p. 134.) It is also the general rule that “the 

involuntary dismissal of an appeal leaves the judgment intact.” (In re Jasmon O. (1994) 

8 Cal.4th 398, 413 (Jasmon O.).)

In Paul, the California Supreme Court noted that former Code of Civil Procedure 

section 955 provided that “ „[t]he dismissal of an appeal is in effect an affirmance of the 

judgment or order appealed from. . . .‟ ” (Paul, supra, 62 Cal.2d at p. 134.) Determining 

that the basis for the judgment in the case before it had “disappeared,” the Paul court 

further determined that “we should „dispose of the case, not merely of the appellate 

proceeding which brought it here.‟ [Citations.] That result can be achieved by reversing 

the judgment solely for the purpose of restoring the matter to the jurisdiction of the 

superior court, with directions to the court to dismiss the proceeding. [Citations.] Such a 

reversal, of course, does not imply approval of a contrary judgment, but is merely a 

procedural step necessary to a proper disposition of this case.” (Id. at pp. 134-135.)

In 1968, Code of Civil Procedure section 955 was repealed and replaced with 

Code of Civil Procedure section 913, which provides that “[t]he dismissal of an appeal 

shall be with prejudice to the right to file another appeal within the time permitted, unless 

the dismissal is expressly made without prejudice to another appeal.” (Stats. 1968, 

ch. 385, § 2.) Although the statutory language regarding the effect of the dismissal of an 

appeal has changed, courts have continued to follow the ruling in Paul that dismissal of 

an appeal as moot constitutes an affirmance of the judgment. (See Jasmon O., supra, 

8 Cal.4th at p. 413.)
13

Courts have also continued to apply the rule set forth in Paul that “ „ “[w]here an 

appeal is disposed of upon the ground of mootness and without reaching the merits, in 

order to avoid ambiguity, the preferable procedure is to reverse the judgment with 

directions to the trial court to dismiss the action for having become moot prior to its 

final determination on appeal. [Citations.]” [Citations.]‟ [Citation].” (Giles v. Horn

(2002) 100 Cal.App.4th 206, 229; see Coalition for a Sustainable Future, supra, 

198 Cal.App.4th at p. 944-945; Wilson & Wilson v. City Council of Redwood City (2011) 

191 Cal.App.4th 1559, 1585-1586; San Bernardino Valley Audubon Society v. 

Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 404; County of San Diego v. 

Brown (1993) 19 Cal.App.4th 1054, 1090; In re Marriage of Mcfarlane & Lang (1992) 

8 Cal.App.4th 247, 258; Lee v. Gates (1983) 141 Cal.App.3d 989, 992-994.)

We determine that a disposition under the rule of Paul and its progeny, rather than 

a simple dismissal of the appeal, is appropriate in the present case. “Reversal with 

directions to the trial court to dismiss is the equivalent of dismissal of the appeal, but 

avoids the ambiguity of the latter procedure which does not dispose of a subsisting trial 

court judgment in a case wherein the issues are moot.” (Bell v. Board of Supervisors 

(1976) 55 Cal.App.3d 629, 637.) Having concluded that the appeal is moot, and also 

having declined to reach the merits by way of an advisory opinion, we will appropriately 

avoid affirming the judgment by implication. (See Coalition for a Sustainable Future, 

supra, 198 Cal.App.4th at pp. 944-945.)

Finally, we emphasize that in our decision today we express no opinion regarding 

the pending appeal of the February 6, 2013 order awarding attorney‟s fees to Ag Land 

Trust (AG Land Trust v. Marina Coast Water District, H039559), of which we only take 

judicial notice. (Evid. Code, § 452, subd. (d)(1).)
14

IV. DISPOSITION

The judgment is reversed and the matter is remanded with directions to the trial 

court to dismiss the petition for writ of mandate as moot. The parties shall bear their own 

costs on appeal.

___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

________________________________

ELIA, ACTING P.J.

_________________________________

MÁRQUEZ, J.