Superior Court for the State of California
County of Inyo

Sierra Club, and Owens Valley Committee, Plaintiffs,
vs.
City of Los Angeles, et al, Defendant

Statement of Decision RE Compliance with Court Orders

     This case is but another skirmish in the ongoing battle over water in the Owens Valley. This particular skirmish began in the early 70's because the City of Los Angeles, through its Department of Water and Power (hereinafter jointly and sevarally referred to as "DWP") , built a second aqueduct to export water from the Owens Valley to the City without complying with CEQA, as discussed in County of Inyo v. Yorty (1973) 32 Cal.App.3d 795. Additional litigation ensued as follows: County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185; County of Inyo v. City of Los Angeles (1978) 78Cal.App 3d82; and County of Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1. DWP never did comply with the writ ordered in 1973 to provide an adequate E.I.R. concerning that project.

     Instead the parties, i.e. DWP, county of Inyo (hereinafter, "Inyo"), the Sierra Club, the Owens Valley Committee (hereinafter, "OVC") the California Department of Fish and Game (hereinafter, "Dept. of F & G") the California State Lands Commission (hereinafter, "Commission") and Carla Scheidlinger, in March, 1977, entered into a Memorandum of Understanding (hereinafter, "MOU"), based upon a previously developed Long Term Water Agreement, to develop the Lower Owens River Project (hereinafter, "LORP") as a CEQA mitigation measure resulting from the construction of the second aqueduct.  Pursuant to stipulation the writ previously ordered was dissolved. The MOU established deadlines for various things to be accomplished. None of those deadlines were met by DWP, even as thereafter extended by agreement of the parties. 

     On December 4, 2001, this action was commenced by Sierra Club and OVC to compel DWP and Inyo to comply with the MOU provisions requiring completion of a draft E.I.R. for the LORP. By stipulation dated May 30, 2002, it was agreed that the Draft E.I.R. would be completed and released by August 31, 2002. It was not. On September 12, 2002, this court ordered its completion and release by November 1, 2002, which was done. 

     On September 26, 2003, Sierra Club and OVC filed a second amended and Supplemental complaint for Declaratory and Injunctive Relief and for a Writ of Mandate. On December 4, 2003, Dept. of F. and G. and Commission filed a cross complaint for Declaratory Relief and for a Writ of Mandate.

     These actions seek to enforce the MOU.

     On February 10, 2004, a stipulation and proposed order "...to resolve the issues raised in the Amended Complaint and the Cross Complaint, and to resolve the issue of the capacity of the LORP pump station" was filed. The proposed order pursuant thereto was executed on February 13, 2004. 

     On May 19, 2004, the court denied DWP's request for more time to complete the LORP E.I.R. 

     On May 24, 2004, DWP announced that it would no longer seek to develop the E.I.R. in consultation with Inyo but, rather, would prepare its own. 

     On July 2, 2004, a document entitled "Final EIR/EIS" was released by DWP.  EPA voiced objection to it within days thereafter.  On July 30, 2004, the "Final EIR" was approved by DWP's Board of Water Commissions.

     On September 15, 2004, an amended Stipulation and Order was filed and was executed by the court that day. In paragraph 4, p.5, the stipulation again recites that "The purpose of this Stipulation and Order is to resolve the issues raised in the Amended Complaint and the Cross Complaint, and to resolve the issue of the capacity of the LORP pump station." 

     On the court's own motion, on November 17, 2004, the matter was set for trial on April 25, 2005. Thereafter, DWP brought the language of the amended stipulation and order to the court's attention, that its purpose was to "...resolve the issues raised in the Amended Complaint and the Cross Complaint...". Accordingly, the trial date was vacated and the matter was re-set on April 25, 2005, for hearing any motions the parties might bring concerning DWP's compliance with the order pursuant to the stipulation previously filed. 

     A three day hearing was held as scheduled. Closing briefs were ordered filed by May 11, 2005, at which time the matter was submitted for decision. 

     Although the focus of the hearing was DWP's compliance with the stipulated orders and whether any delays in compliance sere due to circumstances beyond DWP's control, it is important to note that DWP has been and is in violation of CEQA since the early 70's because the mitigation measures it agreed to have not been accomplished as agreed and ordered. 

     Relative to DWP's compliance with the stipulated order, the evidence is clear, convincing and overwhelming that DWP is in violation of its agreements set forth in the stipulations and the court's orders pursuant thereto. Whether the violations were inadvertent, negligent, or intentional seems to me to be irrelevant. A procedure is set forth in the stipulations for DWP to advise the parties in advance of inability to comply, for modification pursuant to agreement, or pursuant to court order. With rare exception, DWP has not utilized the procedures it agreed to and as ordered by the eourt.

     It appears that DWP needs the threat of immediate sanctions before it gets busy on the LORP.

     The evidence in this matter does not support a finding or conclusion that DWP's violations of the stipulated orders and consequential delays for completion of the LORP were due to circumstance beyond DWP's control.   In fact they appear to be more likely caused by the delay by litigation practice described by Gerald Gewe, Chief Operating Officer- Water System, until 2005, who has bragged about the amount of money and water DWP had save by litigation delay.  DWP now responds that it's not in business to make a profit, etc. and that its officers do not benefit financially from such a policy. Be that all as it may, saving money and water benefits the City and makes the officers look good for whatever benefits that may bring.

    DWP candidly concedes that it cannot meet the stipulated deadline of September 5, 2005 for the initial flows of water in the river.

     DWP is in violation of the stipulated orders because it did not provide an Administrative Draft of the Final EIR/EIS to the parties and the EPA as required by the Final EIR/EIS schedule, items 14-16.  DWP's explanation that it does not know what an administration draft is, and that such a draft is not required by CEQA is disingenuous, it not mendacious.  It agreed to provide one and did not in violation of the order.  If it had complied, perhaps water could be in the river as ordered.

     In fact a review of that schedule shows that DWP was required to work closely with EPA and it obviously did not.

     The stipulated order provides that "LADWP and the county shall complete and release to the parties a Final EIR/EIS addressing the LORP by June 23, 2004."  DWP is in violation of the order because: 

1.      Its "Final EIR/EIS" was done only by DWP.

2.      The document is not a final EIR/EIS because EPA did not approve it as an EIS and has not yet approved it.

DWP says that approval of an EIS by EPA is beyond its contract. So What?  DWP agreed to provide a Final EIR/EIS by June 23, 2004.  If it had not piddled around trying to play bureaucratic games with EPA and with the parties, about the capacity of the pump back station, for example, thereby losing a year or more, it appears likely they could have complied with the order.

     DWP is also in violation because it went alone to complete the EIR by June 23, 2004. 

     To my mind the issues of adaptive management and the need for a QAPP are intertwined. The stipulation clearly reflects the fact that Inyo needs the EPA grant funds to meet its obligations to the LORP.  The evidence discloses that EPA's QAPP concerns are about the same problem areas as are the parties adaptive management concerns.  DWP argues otherwise, however.   It appears to me that DWP's failure to develop a QAPP on a timely basis violates the stipulation by failing to proceed with due diligence.   

DWP argues that many delays were attributed to its consultants.  No evidence, however, is before the court as to what efforts DWP made to encourage its consultants to meet deadlines. No explanation has been offered as to why NWH was not utilized sooner or more fully.

DWP's explanations about why it did not meet with EPA and share its concerns and learn EPA's concerns appear to be excuses and not reasons.  Certainly, when I made inquiry about what EPA's position was regarding the "EIR/EIS" and was advised that it was unknown since no meeting had yet occurred, I was misinformed. The record, however, is now replete with correspondence from EPA expressing its concerns.

DWP is in violation of the stipulated order because within seven days of certification by its Board of the "EIR/EIS" it did not submit a "complete" application to Lahonton Regional Water Quality Control Board. The argument that they thought it was "complete" and were sandbagged when Lahonton said it would enforce all its regulation is not persuasive. Recent correspondence to Lahonton suggests that more delay by litigation may be in the offing.

DWP contends correctly that its still has the right to seek an extension of the September 5, 2005, deadline. Their failure to do so long ago is inexplicable.  DWP, however, cannot rely on problems or excuses it failed to report to the court and parties on a timely basis.

In sum, I find DWP in violation for the reasons stated and because it obviously did not proceed with due diligence.

The evidence shows that its approach to the LORP was on an ad hoc basis with no real planning involved.

Regarding the Yellow Billed Cuckoo and Hines Springs issues, we are finally seeing some progress. But again, DWP had not complied with agreed deadlines and no explanation has been presented.

The conduct of some of the other parties is worthy of comment. There is scant evidence, if any, that the Sierra Club or OVC made any effort to support timely completion of the LORP with any of the permitting agencies involved.  Such failure is reprehensible.

The question of sanctions will be heard on July 25, 2005, at 9:30 a.m.  All position papers in that regard must be served and filed by July 20, 2005.

Dated June 24, 2005

Lee E. Cooper, Jr., Judge