On June 16, 2017 – without seeking either rehearing in the First District Court of Appeal or review by the Supreme Court – losing appellants Sierra Club and Center for Biological Diversity filed a letter asking the Supreme Court to depublish the First District’s (Division 1) recent opinion in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11 (“Sierra Club”). The Supreme Court on the same day extended its otherwise soon-to-expire time to order review of the case on its own motion to August 21, 2017.

In a well-researched and well-reasoned opinion resulting from extensive briefing (including supplemental briefing) from all parties, Sierra Club affirmed the trial court’s denial of appellants’ writ petition challenging the Sonoma County Agricultural Commissioner’s issuance of a 54-acre vineyard development permit, as a ministerial approval without CEQA review, under the detailed standards and controls of the County’s vineyard development and erosion control (aka “VESCO”) ordinance. My blog post analyzing this significant case (in which I represent real party Ohlson Ranch) can be found here.

Appellants’ depublication request letter argues that Sierra Club was wrongly decided, that it shifts the burden of environmental fact-gathering from agencies to petitioners, and that it will increase litigation. Conspicuously, it does not argue that Sierra Club fails to meet the standards for publication. Simultaneously filing substantively identical letters (apparently also drafted by appellants’ attorney) in support of their depublication request were a number of affiliated NGOs, including Friends of the Gualala River (a former plaintiff that dropped out of the litigation at the trial court level), Forest Unlimited (a group that unsuccessfully facially challenged the VESCO ordinance making the same arguments years ago), Land Watch Monterey County, and Sonoma County Conservation Action. Another appeal in an action filed by another group (represented by the same attorneys at trial and on appeal as appellants and making the same unsuccessful CEQA challenges to another ministerially issued VESCO vineyard permit) awaits oral argument before a different panel of the First District (Division 3) on July 12, 2017 (Watertrough Children’s Alliance v. County of Sonoma, Court of Appeal Case No. A145612); in Watertrough, the Court has entertained supplemental briefing on the effect of Sierra Club and, unsurprisingly, appellant there has argued it was wrongly decided and should not be followed.

The backstory behind Sierra Club is that it is not the first decision in which the County of Sonoma has successfully defended its VESCO ordinance, or a permit ministerially issued thereunder, from a CEQA challenge – but it is only the first published one. Groups like appellants have unsuccessfully brought numerous CEQA suits for years attempting to transform VESCO into something it is not, and was quite expressly never meant to be – i.e., a discretion-conferring permitting scheme under which even permit applications proposing projects strictly conforming to its exacting and detailed standards are nonetheless subject to CEQA. In Sierra Club, appellants essentially took their “best shot” and hoped to set a published precedent achieving their goal of subjecting ministerial vineyard (and other) permit approvals to CEQA and attendant litigation challenges.

But they lost. And precedent is a pesky thing when you lose. Obviously, appellants and their affiliated NGO groups would now prefer to simply erase Sierra Club as a published precedent so that such groups and their attorneys can continue to go about their business of bedeviling the County and permit recipients by endlessly relitigating VESCO issues in writ actions brought under CEQA.

But just as obviously, because Sierra Club was correctly decided and properly requires parties challenging individual permits under CEQA to first demonstrate that they are discretionary approvals within CEQA’s purview – i.e., that their issuer was actually authorized under the governing law to exercise meaningful discretion to address environmental issues when acting on the particular permit – the County would like to see Sierra Club remain published. On June 26, 2017, prevailing defendants and respondents County of Sonoma and its Agricultural Commissioner and real parties (Ohlson Ranch) filed a detailed joint letter opposing the depublication request, which letter was authored by myself and Jeff Brax of the Sonoma County Counsel’s office. Also filing and letters in support of the opinion remaining published were the California State Association of Counties, California Building Industry Association, Building Industry Association of the Bay Area, Building Industry Legal Defense Foundation, the County of Kern, a private developer (Cross Development, LLC) represented by Remy Moose Manley, and the law firm of Downey Brand LLP.

These letters point out that Sierra Club is a well-reasoned and well-supported, correctly decided, and useful precedent meeting numerous California Rules of Court criteria for publication and therefore should remain published. They observe that the decision helpfully reviews the development and significance of the “ministerial/discretionary” distinction, and the “functional test” for distinguishing between the two types of approvals, and that the matter is of considerable public interest because that distinction demarcates which project approvals are, and which are not, subject to CEQA. They note the decision provides additional clarity and guidance that will, contrary to appellants’ contentions, enhance certainty in this area of the law and thereby obviate and reduce future litigation – a proposition that should be self-evident, especially in light of the history (touched on above) of the VESCO litigation brought under CEQA by affiliated NGOs. The letters opposing appellants’ depublication request observe that the highly detailed and specific technical regulations governing VESCO permits, as applied by the Commissioner to the challenged permit here, present a factual context that differs significantly from the factual situations addressed by past precedents. They further echo Sierra Club’s footnoted observation that a contrary decision would have the perverse effect of discouraging public agencies from enacting ordinances specifically designed to mitigate environmental impacts through a permitting process, while at the same time avoiding onerous and unnecessary CEQA review.

It is now up to the Supreme Court to decide whether Sierra Club meets the criteria for publication and will remain published so as to provide a useful statewide precedent on CEQA issues of critical importance and public interest, or whether appellants and affiliated groups will succeed with their dubious depublication “do over” request strategy in erasing it so that they can be free to continue relitigating the same issues and seeking a different result. While no firm deadline is imminent, given the nature of these issues and the normal timing of the Supreme Court’s internal operating procedures, I anticipate it will act on the depublication requests by July 12, 2017.

My Subjective Takes

As a disclaimer, I’m obviously personally involved in this case and feel strongly about the issues, so the following observations should be assessed with that in mind. Depublication by the Supreme Court has been much criticized by legal scholars in recent years as an improper way to shape the law in general; indeed, the Rules of Court have been amended to eliminate automatic depublication of appellate decisions even where the Supreme Court has granted review. And while I believe that much of the criticism against the use of depublication has been unfairly leveled, from my perspective as a former California Supreme Court law clerk and current litigator of many writs and appeals, it remains my view that summary depublication of unreviewed appellate opinions is a tool that the Supreme Court should use only sparingly and always with extreme caution. Appellants’ request for depublication from the Supreme Court in this context, and the manner in which they have made it, just seem inappropriate to me. In my experience, depublication is normally requested in conjunction with – and as a “second-best” alternative to – a request that the Supreme Court take up review of a case. While in the context of a fully vetted petition for review the Court may properly decide to grant or to deny and depublish, for a losing party to skip straight to a depublication request premised on a 10-page letter claiming the decision is wrong is a dubious procedural gambit that cheapens the judicial process.

More specifically, it seems inappropriate for losing parties to make a “stand-alone” depublication request, directed to an obviously carefully-reasoned – and certainly not clearly erroneous – appellate opinion that thoroughly addresses important legal issues they have been litigating as plaintiffs and attempting to set a precedent on for years. This is especially the case where the opinion is the product of extensive briefing and painstakingly analyzes the settled legal principles and applies them to a different factual context than prior published precedents. And it’s even more so when the opinion so obviously meets numerous of the standards for publication – and the parties requesting its depublication have never even argued otherwise.

To me, the bottom line is that, having chosen to litigate what they obviously consider to be an important CEQA case through the trial and appellate court levels, Sierra Club and CBD should have at least mustered the courage of their purported convictions and straight-forwardly sought Supreme Court review if they truly believed Sierra Club was incorrectly decided – yet they did not. Instead, they have opted to ask for a short-cut – a “do-over” by depublication – because the published precedent they sought (and ultimately got) is not to their liking. But “buyer’s remorse” and the desire to continue to wastefully relitigate issues in multiple lower court litigations should not be recognized as valid grounds supporting depublication; in fact, such motivations are good reasons for opinions resolving longstanding disputes on issues like those here to be published. The approach advocated by appellants here is not only inherently unfair to the parties, but to the Court of Appeal, the entire judicial system, and the public entities, regulated public, and other interested parties who benefit from Sierra Club’s published status and its contribution to the legal literature.

As I noted in concluding my initial blog post on this decision, Sierra Club provides significant guidance to public agencies drafting or applying – and to applicants proposing projects under – detailed regulatory schemes such as VESCO that are designed to enable ministerial approval of fully compliant project applications. It clarifies the law and provides guidance to the regulators and the regulated community, as well as to plaintiff NGO groups purportedly suing “in the name of the environment.” The First District’s Sierra Club opinion constitutes a significant and valuable contribution to the body of CEQA jurisprudence, was thus properly published in the first place, and should remain so. Stay tuned.