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Filed 2/10/22; Certified for Publication 3/7/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

MONTEREY COASTKEEPER et al.,

Plaintiffs and Appellants,

v.

CENTRAL COAST REGIONAL WATER 

QUALITY CONTROL BOARD et al.,

Defendants and Respondents.

C090943

(Super. Ct. No. 34-2017-

80002655-CU-WM-GDS)

Can a court, in an action for traditional mandamus and declaratory relief, in effect 

order the state and local water boards to comply with the law as it pertains to water 

permits under the Porter-Cologne Water Quality Control Act (Wat. Code,1 § 13000 et 

seq. (Porter-Cologne Act))? In this case, the answer is no.

1 Undesignated statutory references are to the Water Code.
2

Appellants Monterey Coastkeeper (Coastkeeper) and others are dissatisfied with 

how the respondent State Water Resources Control Board (State Board) and the regional 

water boards, including respondent Central Coast Regional Water Quality Control Board 

(Central Coast Board), control water pollution resulting from agricultural runoff through 

the permitting process. Appellants filed an action seeking, among other things a 

declaratory judgment and writ of traditional mandamus regarding the water permits 

governed under section 13300. Specifically, the third cause of action in their first 

amended complaint sought traditional mandamus and declaratory relief regarding 

respondents’ alleged failure to comply with the State Board’s Nonpoint Source Pollution 

Control Policy (NPS Policy) in the permitting process, while the fourth cause of action 

sought traditional mandamus directing the State Board to comply with the public trust 

doctrine.

Appellants appeal from the trial court’s sustaining of demurrer without leave to 

amend of their third and fourth causes of action. They contend the trial court erred 

regarding both the NPS Policy and public trust doctrine, and erred in denying them leave 

to amend the complaint.

Declaratory relief is not available because appellants failed to present a 

controversy susceptible to definitive and conclusive relief by declaratory judgment, and 

they have not identified a clear rule that was ignored or improperly applied. Mandamus 

is likewise unauthorized as appellants attack respondents’ exercise of discretion rather 

than a failure to perform a ministerial duty or a quasi-legislative action. Since appellants 

assert no more than an abstract right to amend, it was within the trial court’s discretion to 

dismiss without leave to amend. We shall affirm.

LEGAL BACKGROUND

The Porter-Cologne Act is the principal law governing water quality regulation in 

California. Enacted in 1969, the Porter-Cologne Act establishes as state policy that “the 

quality of all the waters of the state shall be protected for use and enjoyment by the 
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people of the state.” (§ 13000.) It provides that “activities and factors which may affect 

the quality of the waters of the state shall be regulated to attain the highest water quality,

which is reasonable, considering all demands being made and to be made on those waters 

and the total values involved, beneficial and detrimental, economic and social, tangible 

and intangible.” (Ibid.)

The Legislature designated the State Board and nine regional water quality control 

boards (regional water boards) as the agencies with primary responsibility for the 

regulation of water quality under the Porter-Cologne Act. (§ 13001.) The State Board 

formulates and adopts state-wide policy for water quality control, allocates funds, and 

oversees the activities of the regional water boards. (§§ 13140, 13320.) Each regional

water board is responsible for, among other things, water quality protection, permitting, 

inspection, and enforcement actions within its region. (§ 13225, subd. (a).) The regional 

water boards formulate water quality management plans, known as “basin plans,” which 

must conform to the State Board’s policies. (§ 13240.) Basin plans identify beneficial 

uses of the water such as drinking water supply, fishing, agricultural water supply, and 

ecological functions. (§ 13050, subd. (f).) All beneficial uses must be protected.

(§ 13241.)

The regional water boards are also responsible for issuing waste discharge permits. 

(§§ 13263, 13269.) The State Board may review any regional water board’s action or 

failure to act on such a permit either via petition from any aggrieved person. (§ 13320, 

subd. (a).) The State Board’s decision on whether to review a regional water board’s 

action or failure to act is not subject to judicial review. (Johnson v. State Water Resource 

Control Bd. (2004) 123 Cal.App.4th 1107, 114.)

The Porter-Cologne Act also allows regional water board decisions on waste 

discharge permits to be challenged through a petition for writ of mandate in superior 

court pursuant to Code of Civil Procedure section 1094.5. (§ 13330, subds. (a), (b), (e).)
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The Legislature has also directed the State Board to implement a “nonpoint source 

management plan.” (§ 13369, subd. (b)(2).) Under this mandate, the State Board 

adopted the NPS Policy. The adoption of this policy is a quasi-legislative, rulemaking 

action. (WaterKeepers Northern California v. State Water Resources Control Bd. (2002)

102 Cal.App.4th 1448, 1452.) The NPS Policy regulations require nonpoint source 

pollution control permits to include five mandatory key elements. The elements are as 

follows: “(1) address NPS pollution in a manner that achieves and maintains water 

quality objectives and beneficial uses, including any applicable antidegradation 

requirements; (2) have a high likelihood that the program will attain water quality 

requirements, including consideration of the management practices to be used and the 

process for ensuring their proper implementation; (3) include a specific time schedule, 

and corresponding quantifiable milestones designed to measure progress toward reaching 

the specified requirements; (4) include sufficient feedback mechanisms to determine if 

the program is achieving its stated purpose; and (5) make clear, in advance, the potential 

consequences for failure to achieve the program’s stated purposes.” (Monterey 

Coastkeeper v. State Water Resources Control Bd. (2018) 28 Cal.App.5th 342, 349.)

FACTUAL AND PROCEDURAL BACKGROUND

Appellants filed a complaint and petition alleging two causes of action. The first 

cause of action, against respondent Central Coast Board, challenged the State Board’s

2017 Conditional Waiver of Waste Discharge Requirements for Discharges from 

Irrigated Lands, Order No. R3-2017-0002, and the related monitoring and reporting 

program, via a petition for writ of administrative mandamus pursuant to section 13330 

and Code of Civil Procedure section 1094.5. The second cause of action sought a writ of 

traditional mandamus and declaratory relief against the State Board directing it to comply 

with its obligations under law with respect to issuing or reviewing agricultural waste 

discharge permits and to take appropriate action when regional water boards have failed 
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to issue general agricultural orders or individual waste discharge requirements (WDR) for 

agricultural discharge.

According to the complaint, agricultural water pollution has harmed public health 

and ecological resources throughout California. Runoff from crop irrigation carries 

pollutants into creeks, rivers, and the ocean, and percolates into groundwater. Appellants 

alleged that this led to hundreds of thousands of Californians in rural communities 

lacking clean, safe water.

In support of the second cause of action, appellants alleged the regional water 

boards, either by adopting general agricultural orders or not issuing orders, systematically 

failed to ensure that the authorized discharges of agricultural pollutants do not cause or 

contribute to exceedance of water quality objectives, impairment of beneficial uses, or a 

condition of nuisance. Appellants further alleged the State Board failed to ensure the 

regional water boards’ general agricultural orders complied with: NPS Policy, 

antidegradation requirements, various water quality objectives, adequate monitoring and 

reporting requirements; consider the impact of agricultural discharges on public trust 

resources or protect public trust resources when feasible; prevent unreasonable use or 

method of use of waters in violation of article X, section 2 of the state Constitution and 

sections 100 and 275, and implement and protect the human right to use water. The 

complaint also alleged the State Board failed to issue its own orders to meet these various 

requirements and failed to investigate or undertake any action with respect to ongoing 

violations of the Porter-Cologne Act. It alleged these systematic and continuous failures 

demonstrated a pattern of the State Board neglecting its duty to comply with the PorterCologne Act’s mandate that water quality objectives be attained and maintained.

The State Board demurred to the second cause of action, asserting it failed to 

identify a ministerial duty supporting mandamus or a controversy susceptible to 

declaratory relief. The trial court sustained the demurrer with leave to amend.
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Coastkeeper filed an amended complaint retaining the first cause of action, while 

adding three new causes of action. The second cause of action related to the 2018 

agricultural waste discharge permit issued by the Central Valley Regional Water Control 

Board (Central Valley Board) and the State Board’s modification of the permit. This 

cause of action added the Central Valley Board as a defendant and two new plaintiffs.

The third cause of action, brought against the Central Coast Board, Central Valley 

Board, and the State Board, alleged the regional water boards failed to comply with the 

NPS Policy in a manner that achieves and maintains water quality objectives and protects 

beneficial uses, including antidegradation requirements. In support, appellants alleged 

that the State Board and the two regional water boards have long been aware that 

agricultural discharges were degrading water quality and preventing the attainment of 

water objectives and, through various means, failed to take measures to address the 

problems. Either through action or inaction, the respondents were alleged to have

systematically failed to comply with the NPS Policy. The complaint further alleged that 

the State Board’s revisions or decisions to decline to revise general agricultural orders 

adopted by the regional water boards failed to comply with the NPS Policy, and that the 

State Board picked and chose whether to review regional water board orders in a manner 

avoiding compliance with the NPS Policy and evading judicial review. In addition, the 

respondents were alleged to have evaded their legal duties by repeatedly ignoring 

judgments of the trial court and the appellate court specifying their failures to comply 

with the NPS policy. The third cause of action sought declaratory relief that the 

respondents act in accordance with their legal obligations to protect public health and the 

environment, and traditional mandamus directing them to comply with their legal 

obligations with respect to the harm to state water quality caused by agricultural 

discharges.

The fourth cause of action addressed the State Board’s duties under the public 

trust doctrine. It alleged the State Board had a continuing supervisory duty under the 
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public trust doctrine which it violated by failing to avoid or minimize harm associated 

with agricultural discharges. Appellants sought a writ of mandate directing the State 

Board to comply with its obligation to protect public trust resources and avoid or 

minimize harm caused by agricultural discharge.

Appellants alleged that the Central Valley Board’s 1982 and 2003 waivers largely 

exempted agricultural operations or had no controls for pollution at the source, and that 

the 2003 waiver had been found to be inconsistent with antidegradation regulations. The 

renewal of the 2003 waiver led to additional litigation, resulting in a stipulated judgment 

with a 2011 deadline to establish a regulatory program for irrigated lands. The 2006 

waiver was renewed in 2011, but the trial court found the renewed waiver did not comply 

with the NPS Policy or antidegradation regulations. A permit for the Eastern San Joaquin 

Regional Board allegedly also did not comply with the NPS Policy.

Respondents filed a motion to strike the second cause of action and a demurrer to 

the third and fourth causes. The motion to strike asserted the second cause of action 

should be stricken because it did not respond to the reason for sustaining the earlier 

demurrer, and new plaintiffs may be added only after petitioning to intervene. The 

demurrer asserted the third cause of action failed to identify a mandatory ministerial act, 

or failure to act to be controlled by writ, and did not identify a controversy amenable to 

declaratory relief. Respondents asserted the fourth cause of action fails because 

administration of the public trust necessarily involves discretion.

Following briefing and argument, the trial court granted the motion to strike the 

second cause of action and the new parties.2 The court also sustained the demurrer to the 

third and fourth causes of action without leave to amend. The court found that appellants 

had not identified a mandatory, ministerial duty but instead brought a broad, generalized 

2 Appellants do not appeal this decision. The parties agreed to a stipulated judgment 

regarding the first cause of action, which likewise is not a subject of this appeal.
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challenge to an agency’s discretionary decisions. The fact that appellants thought 

respondent’s choices were not aggressive enough to achieve the state’s water policy goals 

did not entitle them to relief. Declaratory relief was not supported by the complaint 

because appellants had not identified a controversy that could be resolved by this type of 

action. According to the court, appellants essentially sought “a declaration that 

Respondents’ ongoing efforts to address non point source pollution and protect public 

trust resources are not sufficiently ‘effective’ and ‘environmentally protective.’ ” The 

trial court found this was “not the type of controversy that can, or should, be resolved by 

declaratory judgment.”

DISCUSSION

I

Standard of Review

“Because the function of a demurrer is to test the sufficiency of a pleading as a 

matter of law, we apply the de novo standard of review in an appeal following the 

sustaining of a demurrer without leave to amend. [Citation.] We assume the truth of the 

allegations in the complaint, but do not assume the truth of contentions, deductions, or 

conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the 

plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of 

discretion for the court to sustain a demurrer without leave to amend if the plaintiff has 

shown there is a reasonable possibility a defect can be cured by amendment. [Citation.]” 

(California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “We 

will affirm the trial court’s decision to sustain the demurrer was correct on any theory. 

[Citation.]” (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 

531, 539.)

“When considering an appeal from a judgment entered after the trial court 

sustained a demurrer without leave to amend, we ‘accept as true all well-pleaded facts in 

the complaint and give a reasonable construction to the complaint as a whole.’
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[Citations.] In addition, we may consider matters that are properly the subject of judicial 

notice, and were considered by the trial court. [Citation.]” (La Serena Properties, LLC v. 

Weisbach (2010) 186 Cal.App.4th 893, 897.)

II

Declaratory Relief

Appellants contend the trial court erred in sustaining the demurrer as to 

declaratory relief by requiring more than allegations of respondents’ ongoing failure to 

comply with the NPS Policy.

Declaratory relief is available to a party “who desires a declaration of his or her 

rights or duties with respect to another . . . .” (Code Civ. Proc., § 1060.) A complaint for 

declaratory relief is legally sufficient if it sets forth facts showing the existence of an 

actual controversy relating to the legal rights and duties of the parties and requests that 

the rights and duties of the parties be adjudged by the court. If these requirements are 

met and no basis for declining declaratory relief appears, the court should declare the 

rights of the parties whether or not the facts alleged establish the plaintiff is entitled to 

favorable declaration. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 

82 Cal.App.4th 592, 606.) “Declaratory relief operates prospectively, serving to set 

controversies at rest before obligations are repudiated, rights are invaded or wrongs are 

committed. Thus the remedy is to be used to advance preventative justice, to declare 

rather than execute rights. [Citation.]” (Kirkwood v. California State Automobile Assn. 

Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59.) In essence, declaratory relief operates 

to declare future rights, not to address past wrongs. (Canova v. Trustees of Imperial 

Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497.)

A party seeking declaratory relief must show a very significant possibility of 

future harm. (Coral Construction, Inc. v. City and County of San Francisco (2004) 

116 Cal.App.4th 6, 17.) In assessing whether declaratory relief is available, a court 

determines whether “a probable future dispute over legal rights between parties is 
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sufficiently ripe to represent an ‘actual controversy’ within the meaning of the statute 

authorizing declaratory relief (Code Civ. Proc., § 1060), as opposed to purely 

hypothetical concerns . . . .” (Steinberg v. Chiang (2014) 223 Cal.App.4th 338, 343.)

“An ‘actual controversy’ under the declaratory relief statute is ‘one which admits of 

definitive and conclusive relief by judgment within the field of judicial administration, as 

distinguished from an advisory opinion upon a particular or hypothetical state of facts.’

[Citation.]” (Gilb v. Chiang (2010) 186 Cal.App.4th 444, 459.)

The trial court summed up appellants’ claims thusly: “The gravamen of 

Petitioners’ complaint is that, despite years of regulating agricultural discharges, 

Respondents have failed to take meaningful steps to regulate agricultural discharges in a 

manner that would achieve and maintain water quality objectives and protect beneficial 

uses. Petitioners specifically allege that Respondents knowingly and systematically have 

failed to address nonpoint source pollution and protect public trust resources.”

We agree with this summation and with the trial court’s conclusion that this type 

of claim cannot support declaratory relief. Appellants’ complaint asserted that one means 

by which the State Board systematically fails to abide by the NPS Policy is through its 

decisions on whether to review regional water board actions. The State Board’s decision 

to review a regional water board action is entirely within the State Board’s discretion and 

not subject to judicial review. (Johnson v. State Water Resources Control Bd., supra,

123 Cal.App.4th at p. 1114.) Using declaratory relief to force the State Board to exercise 

its discretion in a particular manner cannot be squared with this principle. More 

importantly, the complaint does not allege a dispute amenable to resolution through 

declaration.

Declaratory relief requires a court to have “narrow, precise questions to guide its 

examination, without which it is unable to ‘decree, and not suggest, what the parties may 

or may not do.’ [Citation.]” (Zetterberg v. State Dept. of Public Health (1974)

43 Cal.App.3d 657, 664.) The NPS Policy is a complex matter which will take 
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substantial time to resolve and will necessarily require different approaches in different 

localities.

3 An issue as intricate and complex as water pollution from agricultural runoff 

cannot be “solved” by a court decree in a declaratory relief action.

Appellants argue declaratory relief is available because they have alleged a 

mandatory duty to follow the NPS Policy and that respondents have systematically 

ignored this duty for decades. They find their claim for declaratory relief supported by 

Californians for Native Salmon etc. Assn. v. Department of Forestry (1990) 

221 Cal.App.3d 1419 (Native Salmon) and Venice Town Council, Inc. v. City of Los 

Angeles (1996) 47 Cal.App.4th 1547 (Venice Town Council). Neither case supports the 

declaratory relief sought here.

Native Salmon and Venice Town Council allowed declaratory action where an 

agency has an alleged policy or pattern and practice of ignoring applicable laws. In 

Native Salmon, the plaintiffs alleged the Department of Forestry violated state law and 

the relevant implementing regulations by approving timber harvesting plans without 

notice to the public or responding to significant environmental objections and failing to 

consider the cumulative environmental impact of timber harvesting. (Native Salmon, 

supra, 221 Cal.App.3d at pp. 1424-1425.) According to the plaintiffs, this was a “quasilegislative policy” set by the agency. (Id. at p. 1429.) The First District Court of Appeal 

found that a quasi-legislative policy of applying or interpreting a statute or rule in a 

3 “The NPS Policy recognizes that the ‘challenges to implementing statewide prevention 

and control of NPS pollution discharges are significant.’ ‘Current land use management 

practices that have resulted in NPS pollution have a long and complicated physical, 

economic and political history. . . . Therefore, it is expected that it will take a significant 

amount of time for the [regional water boards] to approve or endorse NPS control 

implementation programs throughout their regions, and even longer for those programs to 

achieve their objectives.’ ‘Most NPS management programs typically depend, at least in 

part, upon discharger implementation of management practices (MPs) to control nonpoint 

sources of pollution.’ ” (Monterey Coastkeeper v. State Water Resources Control Bd., 

supra, 28 Cal.App.5th at p. 349.)
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particular manner was subject to declaratory action. (See ibid.; Bess v. Park (1955) 

132 Cal.App.2d 49, 52-54 [declaratory relief available to “any interested person” to 

review “any rule, regulation, order or standard of general application adopted by any state 

agency to implement, interpret or make specific, any law enforced or administered by 

it . . . .”].) Allowing a declaratory action to proceed also served judicial economy by 

avoiding piecemeal litigation of these issues. (Native Salmon, at p. 1430.) The trial court 

therefore erred in granting the demurrer to the declaratory action. (Id. at pp. 1430-1431.)

Venice Town Council involved a dispute over whether the Mello Act (Gov. Code, 

§§ 65590 & 65590.1) mandated local governments to “require developers to replace 

residential units, or pay an in-lieu fee, whenever they demolish or convert dwelling units 

occupied by low or moderate-income persons in the coastal zone.” (Venice Town 

Council, supra, 47 Cal.App.4th at p. 1552.) Plaintiffs alleged the City misinterpreted the 

relevant law “by subjecting every decision to a feasibility standard,” and, notwithstanding 

a formal policy of complying with the Mello Act, “the City has an informal policy of 

nonenforcement in violation of the Mello act.” (Id. at p. 1565.) The Second District 

Court of Appeal found the “complaint properly alleges a present and actual controversy 

whether the City’s interpretation of [Government Code] section 65590 and the duties that 

statute imposes on local governments is erroneous, and whether it has an informal policy 

of nonenforcement of the Mello act. The City’s interpretation of its responsibilities under 

the Mello act is a recurring problem and one involving the interpretation of a statute. The 

proper interpretation of a statute is a particularly appropriate subject for judicial 

resolution. [Citations.]” (Id. at p. 1566.) Noting that Native Salmon found declaratory 

relief is available “when it is alleged an agency has a policy of ignoring or violating 

applicable laws,” (ibid.) the Venice Town Council court concluded that the cause of 

action stated grounds for declaratory relief. (Id. at p. 1567.)

While we must accept all factual allegations in the complaint as true, a reviewing 

court “may not consider conclusions of fact or law, opinions, speculation or allegations 
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which are contrary either to law or to judicially noticed facts. [Citations.]” ( Long Beach 

Equities v. County of Ventura (1991) 231 Cal.App.3d 1016, 1024; accord, City of Chula 

Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1718-1719; see also Shea 

Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246

[applying rule to analogous review of judgment on pleadings]; Bettencourt v. Hennessy 

Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111 [same].)

The trial court granted respondents’ request to take judicial notice of the State 

Board’s 2018 Waste Discharge Requirements General Order No. RS-2012-0116, Order 

WQ 2018-002, upholding the Central Valley Board’s WDR for growers in the East San 

Joaquin Valley. In that document, the State Board acknowledges the permit must 

conform to the NPS Policy. The order also analyzes the NPS Policy and makes specific 

findings in support of its conclusion that the East San Joaquin Valley order is consistent 

with the NPS Policy. For example, the order noted efforts by the Central Valley Board to 

address salt and nitrate impacts.4 The order also discussed how the NPS Policy guides 

4 The order stated: 

“[W]ith regard to implementation consistent with the water quality control plans within 

the Central Valley region, the State Water Board recognizes that considerations regarding 

mixing, averaging periods, time schedules, and the implementation of cooperative

monitoring and compliance strategies are currently being considered as part of the effort 

to address salt and nitrate impacts through the Central Valley Salinity Alternatives for 

Long-term Sustainability Initiative (CV-SALTS), a collaborative, stakeholder process 

initiated by the Central Valley Water Board. This initiative, which is in the final phases 

of development, is intended to establish a Central Valley-wide salt and nitrate control 

program based on recommendations from the CV-SALTS-developed Salt and Nitrate 

Management Plan (SNMP). To implement the SNMP, the Central Valley Water Board is 

considering amendments to the Water Quality Control Plans for the Sacramento River 

and San Joaquin River Basins and the Tulare Lake Basin. These amendments, as 

currently contemplated, would incorporate new implementation plans, strategies, policies 

and guidance into the water quality control plans. Because the State Water Board has not 

yet been presented the CV-SALTS-driven water quality control plan amendments for 

review, it is premature for us in this order to opine on how any approved new direction 
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the State Board’s interpretation and implementation of the Water Code’s requirements 

regarding nonpoint source discharges. It found the Central Valley Board’s WDR’s 

complied with key element one of the NPS Policy by establishing water quality 

requirements and making water limitations effective immediately unless a member was 

implementing an approved plan with an approved timeline. The WDR’s also complied 

with key element three by setting a maximum time limit of 10 years for a nonpoint source 

program, requires the third party to propose (with technical or economic justification) a 

schedule that is as short as practicable, and requiring the plans to incorporate a specific 

schedule and milestones for the implementation of management practices and tasks and 

measurable performance goals.

The State Board recognized that key element one required not just setting 

objectives, but also mandated programs to address nonpoint source pollution in a manner 

that achieves and maintains water quality objectives and beneficial uses. Accordingly, 

the regional water boards must not just set water quality objectives but must also 

determine that there is a high likelihood the program will attain the regional water 

boards’ stated objectives. The State Board recognized that “a broad scale nonpoint 

source regulatory program does not necessarily generate the type of data that facilitates 

easy determination and enforcement of compliance with receiving water limitations”

because “monitoring the numerous and sometimes indeterminate set of all farm discharge 

points to surface water and groundwater is an impractical, prohibitively costly, and often 

ineffective method for compliance determination and the Non point Source Policy 

accordingly does not mandate such monitoring.” It found that management practice 

may affect implementation of the Eastern San Joaquin Agricultural General WDRs or the 

remainder of the Central Valley Regional Board irrigated lands regulatory program. 

However, the State Water Board acknowledges the extensive effort by the Central Valley 

Water Board and stakeholders to study and develop alternatives to address existing 

groundwater salinity problems in the Central Valley.”
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implementation was not a substitute for compliance, but “a schedule of management 

practice implementation, assessment, and adaptive management may act as a proxy for 

assessing regulatory program progress.”

This conclusion was consistent with the NPS Policy’s key element two’s 

requirement that the program describe management practices, program elements, and the 

necessary processes to implement them, as well as key element four’s requirement of 

sufficient feedback mechanisms. The WDR’s at issue required members to implement 

management practices to “1) minimize waste discharge offsite in surface water; 

2) minimize percolation of waste to groundwater; and 3) protect wellheads from surface 

water intrusion,” to prepare farm evaluations to document implemented practices, and, 

where necessary, act similarly with regard to nitrogen management as well as erosion and 

sediment control. The Central Valley Board’s WDR appropriately used third parties to 

collect data on management practices and reported every year to the Central Valley 

Board regarding “the degree of implementation of management practices and evaluation 

of the [e]ffectiveness of the management practices with the data in aggregated form.” 

The State Board engaged in similar analysis and detailed findings regarding the WDR’s 

with respect to the other key elements of the NPS Policy.

We need not (and do not) accept the conclusions of the State Board order 

regarding whether the WDR’s complied with the NPS Policy. However, we cannot 

ignore this judicially noticed evidence that the State Board and the Central Valley Board 

do not ignore or refuse to implement the NPS Policy. A quasi-legislative policy of 

ignoring or refusing to apply relevant law as was done in Native Salmon and Venice 

Town Council is not consistent with the findings and analysis on the State Board order. 

Those findings and analysis may be wrong with regard to whether the WDR’s are 

consistent with the requirements of the NPS Policy or the Port-Cologne Act, but a dispute 

over the correctness of these decisions is not amenable to declaratory relief.
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Declaratory relief generally is not available to use the courts to tell an 

administrative agency how to do its job. An action for declaratory relief “does not confer 

upon the court the authority to make pronouncements in a field reserved to other branches 

of government. [Citation.]” (Bautista v. State of California (2011) 201 Cal.App.4th 716, 

734.) Such is the case here. Although the complaint generally alleges a pattern and 

practice of ignoring or not implementing the NPS Policy, at its heart, the complaint 

contests the effectiveness of the State Board’s and local regional water boards’ efforts to 

implement the policy. This will not support an action for declaratory relief, and the trial 

court did not err in sustaining the demurrer with regards to the declaratory relief action 

here.

III

No Mandamus

Appellants also contend the trial court erred in sustaining the demurrer to their 

traditional mandamus actions in their second and third causes of action. They claim the 

two causes stated claims for mandamus relief to correct respondents’ continuing illegal 

practice of failing to comply with the NPS Policy and the State Board’s “utter failure of 

its duty to consider the public trust doctrine.” They claim the trial court erred in failing to 

recognize respondents’ respective duties under the NPS Policy and public trust doctrine 

are mandatory.

This is an action under section 1085 of the Code of Civil Procedure, which 

provides in pertinent part: “A writ of mandate may be issued by any court to any inferior 

tribunal, corporation, board, or person, to compel the performance of an act which the 

law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the 

admission of a party to the use and enjoyment of a right or office to which the party is 

entitled, and from which the party is unlawfully precluded by that inferior tribunal, 

corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).) “Two basic 

requirements are essential to the issuance of the writ: (1) A clear, present and usually 
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ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and 

beneficial right in the petitioner to the performance of that duty [citation]. [Citation.]”

(People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491.) “A 

ministerial act is one that a public functionary ‘ “ ‘is required to perform in a prescribed 

manner in obedience to the mandate of legal authority,’ ” ’ without regard to his or her 

own judgment or opinion concerning the propriety of such act. [Citation.] ‘Thus, 

“[w]here a statute or ordinance clearly defines the specific duties or course of conduct 

that a governing body must take, that course of conduct becomes mandatory and 

eliminates any element of discretion.” ’ [Citation.]” (Ellena v. Department of Insurance

(2014) 230 Cal.App.4th 198, 205.) “ ‘Discretion, on the other hand, is the power 

conferred on public functionaries to act officially according to the dictates of their own 

judgment.’ [Citation.]” (Transdyn/Cresci JV v. City and County of San Francisco (1999) 

72 Cal.App.4th 746, 752.)

A. NPS Policy

Appellants’ claim regarding the NPS Policy fails because, like the action for 

declaratory relief, it is, in essence, based on the alleged failure of respondents to do 

enough to comport with the NPS Policy. Application of the NPS Policy necessarily 

involves discretionary acts by the local and state boards. The NPS Policy statement 

recognizes the discretion inherent in applying this policy: “[Regional Water Boards] 

have broad flexibility and discretion in using their administrative tools to fashion NPS 

management programs, and are encouraged to be as innovative and creative as possible, 

and, as appropriate, to build upon Third-Party Programs. The State Board, in turn, is 

encouraged to establish a program that recognizes and honors successful and outstanding 

third-party efforts.” Application of the NPS Policy is a quintessentially discretionary task 

not subject to traditional mandamus.

In support of their claim, appellants rely on two cases allowing petitioners to 

challenge administrative decisions under both traditional and also administrative 
18

mandamus. (Code Civ. Proc., § 1094.5.) Conlan v. Bonta (2002) 102 Cal.App.4th 745 

(Conlan) addressed claims that the State Department of Health Services (DHS) failed to 

reimburse the plaintiffs for payments they made while their Medi-Cal applications were 

pending. (Id. at p. 748.) The First District Court of Appeal held “that the state has failed 

to establish a reasonable procedure by which recipients may obtain prompt 

reimbursement for covered services for which they paid during the three months prior to 

applying for Medi-Cal coverage, as required by federal law, and that DHS therefore 

should have been ordered to take appropriate measures to ensure that at least two of the 

petitioners receive their reimbursement.” (Id. at p. 749.) DHS had no procedure in place 

to allow a recipient to obtain reimbursement from the provider or the government for 

expenses incurred while eligibility was pending in spite of a legal obligation to ensure the 

recipient was reimbursed. (Id. at pp. 754-756.) Traditional mandamus was therefore 

appropriate, as it challenged “the agency’s practice of refusing to directly reimburse 

Medi-Cal recipients under circumstances in which DHS assertedly is required to do so.”

(Id. at p. 752.)

Timmons v. McMahon (1991) 235 Cal.App.3d 512 (Timmons) involved an action 

by a temporary guardian of children to obtain benefits under the state-mandated Aid to 

Families with Dependent Children-Foster Care (AFDC-FC) program for the period when 

she was the children’s guardian. (Id. at p. 514.) The petitioner filed a claim for 

administrative mandamus to obtains benefits for the period of her guardianship, and also 

sought traditional mandamus “to correct the Department’s eligibility policies so that 

otherwise eligible applicants would not be denied benefits solely because they were 

temporary rather than permanent guardians.” (Ibid.) The department denied the claim 

for benefits solely because the petitioner was a temporary rather than permanent 

guardian. (Id. at pp. 514-515.) When an administrative law judge ruled the statutory 

scheme distinguish between temporary and permanent guardians, the department rejected 

the decision and issued a decision denying the claim because the petitioner was a 
19

temporary guardian. (Id. at p. 515.) In granting administrative mandamus, the trial court 

found the department had a policy and practice of distinguishing between temporary and 

permanent legal guardians for the purpose of establishing AFDC-FC eligibility, which

violated the controlling statutes. (Ibid.)

The First District Court of Appeal found traditional mandate was appropriate in 

this case. (Timmons, supra, 235 Cal.App.3d at p. 517.) The petition addressed the 

department’s “legal interpretation of the relevant eligibility requirements.” (Ibid.) The 

department’s legal interpretation that led to the improper denial of the petitioner’s claim 

was based in part on a misleading departmental regulation. (Ibid.) Since the policy of 

denying AFDC-FC benefits to temporary guardians violated the relevant statutes, 

traditional mandamus was appropriate to compel the department to conform to the law. 

(Id. at p. 518.)

As we have previously discussed, respondents do not have a policy denying that 

the NPS Policy applies to and governs their actions. The real dispute regards the 

sufficiency of those actions, which distinguishes Timmons and Conlan, and is the reason 

the trial court was correct with respect to sustaining the demurrer on the third cause of 

action.

B. Public Trust Doctrine

Under the public trust doctrine, the state “holds all of its navigable waterways and 

the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’

[Citations.]” (Colberg, Inc. v. State of California ex rel. Dept. of Public Works (1967) 

67 Cal.2d 408, 416.) The state has the “ ‘duty . . . to protect the people’s common 

heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection 

only in rare cases when the abandonment of that right is consistent with the purposes of 

the trust.’ ” (San Francisco Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal.App.4th 

202, 234, quoting National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441

(National Audubon).) “The state has an affirmative duty to take the public trust into 
20

account in the planning and allocation of water resources, and to protect public trust uses 

whenever feasible.” (National Audubon, at p. 446, fn. omitted.)

Appellants argue the State Board had a mandatory duty to apply the doctrine and 

their allegation that the State Board had public trust obligations with regard to both 

individual permits and to the entire program governing irrigated agriculture supported 

mandamus relief. (See Environmental Law Foundation v. State Water Resources Control 

Bd. (2018) 26 Cal.App.5th 844, 862 [public trust doctrine applies to State Board in 

conjunction with the Water Code].) They note the claim alleges the existence of a public 

trust duty, the many public uses under threat, the failure of all of the many agricultural 

permits to consider the impacts of the permits or program on the public trust resources, 

and to the failure protect and avoid or minimize harm to public trust resources to the 

extent feasible, and find that this supports traditional mandamus.

As the Supreme Court found in National Audubon and appellants admit in the trial 

court and on appeal, public trust uses are to be protected wherever feasible. The public 

trust resources therefore need not be protected under every conceivable circumstance, but 

only in those where protection or harm minimization is feasible. “As a matter of practical 

necessity the state may have to approve appropriations despite foreseeable harm to public 

trust uses.” (National Audubon, supra, 33 Cal.3d at p. 446.) The public trust doctrine 

necessarily involves the exercise of discretion by state agencies. “[T]he state is free to 

choose between public trust uses and that selecting one trust use ‘in preference to

. . . [an]other cannot reasonably be said to be an abuse of . . . discretion.’ [Citation.]”

(Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 577.)

Accordingly, the relevant governing case law does not “impress into the public trust 

doctrine any kind of procedural matrix.” (Id. at p. 576.)
21

This inherently discretionary doctrine generally does not allow for intervention by 

the courts other than in the context of judicial review of administrative decisions.5

“ ‘Intervention by the courts [through a separate lawsuit under the public trust doctrine], 

other than by exercising oversight over the administrative process and ensuring that 

proper standards are applied, not only would threaten duplication of effort and 

inconsistency of results, but would require courts to perform an ongoing regulatory role 

as technology evolves and conditions change.’ [Citation.]” (Citizens for East Shore 

Parks v. State Lands Com., supra, 202 Cal.App.4th at pp. 577-578.)

Appellants’ fourth cause of action, which would require the State Board to protect 

public trust resources statewide, is particularly ill-suited to traditional mandamus. 

Simply ordering the State Board to apply the public trust doctrine would be an empty 

judgment, while actually determining whether the State Board is properly applying the 

doctrine would necessarily require the trial court to consider the many decisions within 

the State Board’s mandate, decisions that will typically require the exercise of 

administrative discretion and will often require technical expertise.

When ruling on the demurrer to the first petition, the trial court stated: “But isn’t 

that just such an open-ended remedy, where I say, ‘Okay, I order you guys to follow the 

law,’ and then what? You guys come back in two or three months and say, ‘Judge, 

they’re not following the law, they’re not doing what you told them to do. The law says 

this and they’re not following it.’ [¶] I mean, it would be ongoing—I would be a 

5 A narrow exception exists where there is an unresolved question regarding whether the 

public trust doctrine applies in a particular context. (See Environmental Law Foundation 

v. State Water Resources Control Bd, supra, 26 Cal.App.5th at pp. 851-852 [addressing 

in the absence of administrative decision “extraordinarily narrow” issue of whether 

government entities have “common law fiduciary duties to consider the potential adverse 

impact of groundwater extraction on the Scott River, a public trust resource, when issuing 

well permits”].) No such narrow question is present here.
22

receiver. I would be sitting on top of them—I’d be—I’d be reviewing everything they 

did, to make sure they’re following the law.”

The trial court was right. Traditional mandamus in this case would make the trial 

court the effective overseer of the State Board and the regional water boards, making the 

court one of the most, if not the most, powerful entities in setting water policy. The 

causes of action here cannot support such a result.

IV

Leave to Amend

Appellants’ final contention is the trial court erroneously denied them leave to 

amend the complaint.

“Where, as here, the trial court sustains the demurrer without leave to amend, we 

must decide whether there is a reasonable possibility the plaintiff can cure the defect with 

an amendment. [Citation.] If we find that an amendment could cure the defect, we must 

find the court abused its discretion and reverse. If not, the court has not abused its 

discretion.” (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 809.) 

It is well settled that, on appeal, the plaintiff bears the burden of proving an amendment 

would cure the defect. (Ibid.; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 

1081.)

Appellants have not proposed an amendment that would cure the defects. We 

accordingly conclude the trial court was within its discretion to deny leave to amend.
23

DISPOSITION

The judgment is affirmed. Costs on appeal to respondent State Board. (Cal. Rules 

of Court, rule 8.278(a).)

 \s\ ,

BLEASE, J.

We concur:

 \s\ ,

RAYE, P. J.

 \s\ ,

HULL, J.
24

Filed 3/7/2022

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

MONTEREY COASTKEEPER et al.,

Plaintiffs and Appellants,

v.

CENTRAL COAST REGIONAL WATER 

QUALITY CONTROL BOARD et al.,

Defendants and Respondents.

C090943

(Super. Ct. No. 34-2017-

80002655-CU-WM-GDS)

ORDER CERTIFYING 

OPINION FOR 

PUBLICATION

THE COURT:

The opinion in the above-entitled matter filed on February 10, 2022, was not 

certified for publication in the Official Reports. For good cause it now appears that the 

opinion should be published in the Official Reports and it is so ordered.
25

EDITORIAL LISTING

APPEAL from a judgment granting a petition for writ of mandate of the Superior 

Court of Sacramento County, James P. Arguelles, Judge. Affirmed.

Environmental Law and Justice Clinic; Helen H. Kang, Lucas Williams, Deborah 

A. Sivas and Susann M. Bradford for Plaintiffs and Appellants, Monterey Coastkeeper, 

California Sportsfishing Protection Alliance, Environmental Justice Coalition for Water, 

Pacific Coast Federation of Fisherman’s Associations, Institute for Fisheries Resources, 

California Coastkeeper Alliance, Santa Barbara Channelkeeper, Orange County 

Coastkeeper, and Inland Empire Waterkeeper.

California Rural Legal Assistance, Inc.; Marisol F. Aguilar; for Plaintiffs and 

Appellants, Fairmead Community and Friends and Planada En Acción.

Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney 

General, Tracy L. Windsor, Supervising Deputy Attorney General, Taylor Rhodes, Sierra 

Arballo and Linda Gándara, Deputy Attorneys General for Defendants and Respondents, 

Central Coast Regional Water Quality Control Board, et al.

Kahn, Soares & Conway, Theresa A. Dunham, for East San Joaquin Water Quality 

Coalition; Spaletta Law; Jennifer Lynn Spaletta, for San Joaquin County Resource 

Conservation District, Kaweah Basin Water Quality Association, Tule Basin Water 

Quality Coalition, and California Farm Bureau Federation; Kari E. Fisher, for California 

Farm Bureau Federation as Amici Curiae on behalf of Defendants and Respondents.
26

BY THE COURT:

 \s\ ,

BLEASE, J.

 \s\ ,

RAYE, P. J.

 \s\ ,

HULL, J.