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5 UNITED STATES DISTRICT COURT

6 FOR THE EASTERN DISTRICT OF CALIFORNIA

7 UNITED STATES OF AMERICA, 2:19-cv-000547-LJO-EPG 8 Plaintiffs, ORDER FOR SUPPLEMENTAL 9 BRIEFING RE PENDING MOTION TO v. DISMISS (ECF NO. 17) 10

STATE WATER RESOURCES CONTROL

11 BOARD & STATE WATER RESOURCES

CONTROL BOARD CHAIR E. JOAQUIN

12 ESOUIVEL, in his official capacity,

13 Defendants.

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15 On March 28, 2019, Plaintiff United States of America filed two similar lawsuits, one in

16 Sacramento County Superior Court, the other in this Court, concerning amendments adopted by

17 Defendant State Water Resources Control Board (“State Water Board” or “Board”) to the Water Quality

18 Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan

19 Amendments” or “Amended Plan”). See ECF No. 1; ECF No. 18 (Request for Judicial Notice (“RJN”)),

20 Ex. 6. The First Amended Complaint (“FAC”) in this (the federal) action raises three causes of action

21 under the California Environmental Quality Act (“CEQA”)–(1) failure to provide an accurate, stable and

22 finite project description; (2) improper compression of impacts and mitigation; and (3) failure to

23 Adequately Evaluate Impacts–along with (4) a cause of action based upon the doctrine of

24 intergovernmental immunity (“IGI”). ECF No. 14 (“FAC”).

25 2 dismissal of the entire federal lawsuit is warranted under four separate abstention doctrines, including

3 Burford v. Sun Oil Co., 319 U.S. 315, 317-318 (1943). Under Burford, federal courts vested with

4 jurisdiction may nonetheless “decline to rule on an essentially local issue arising out of a complicated

5 state regulatory scheme.” Knudsen Corp. v. Nevada State Dairy Comm’n, 676 F.2d 374, 376 (9th Cir.

6 1982) (citations omitted). The doctrine applies when:

7 first, that the state has chosen to concentrate suits challenging the actions of the agency involved in a particular court; second, that federal issues

8 could not be separated easily from complex state law issues with respect to which state courts might have special competence; and third, that federal

9 review might disrupt state efforts to establish a coherent policy.

10 Id. at 377. The Supreme Court has not “provide[d] a formulaic test for determining when dismissal

11 under Burford is appropriate,” but it has made it clear that “Burford represents an ‘extraordinary and

12 narrow exception to the duty of the District Court to adjudicate a controversy properly before it.’ ”

13 Quackenbush v. Allstate, 517 U.S.706, 727-28 (2011).

14 The Board’s argument in favor of application of Burford in this case rests, at least in part, on the

15 fact that CEQA claims are central to the federal complaint and that, under California law, CEQA cases

16 can be given special judicial priority. Specifically, California Public Resources Code § 21167.1(b)

17 provides:

18 To ensure that actions or proceedings brought pursuant to [CEQA] may be quickly heard and determined in the lower courts, the superior courts in all

19 counties with a population of more than 200,000 shall designate one or more judges to develop expertise in this division and related land use and

20 environmental laws, so that those judges will be available to hear, and quickly resolve, actions or proceedings brought pursuant to [CEQA].

21 Relying in part on this statute, at least one district court in California has applied Burford abstention to

22 CEQA claims. See, e.g., Emeryville Redevelopment Agency v. Clear Channel Outdoor, No. C 06-01279

23 WHA, 2006 WL 1390561, at *4-5 (N.D. Cal. May 22, 2006) (CEQA claim qualified for Burford

24 abstention because “California has put into place a specialized procedure to quickly and consistently

25 2 922 F. Supp. 2d 1089, 1108 (E.D. Cal. 2013) (the undersigned finding that “California has adopted a

3 comprehensive scheme for suits brought under CEQA” because “California concentrates suits brought

4 under CEQA before specially designated judges with specialized expertise in the statute, and that special

5 procedures apply, including shortened statutes of limitations, fast-tracked case management, and limited

6 appellate review,” but declining to apply Burford because the state and federal claims at issue did not

7 turn on an interpretation of CEQA).

8 However, while California has implemented legislation that permits CEQA cases to be

9 concentrated before judges with experience in the statute, judicially noticeable docket entries in the

10 United States’ parallel state lawsuit (that post-date the pending motion to dismiss) suggest the state

11 matter was recently transferred from a judge designated as a CEQA specialist California Public

12 Resources Code § 21167.1(b) to one that is not (at least not publicly) so designated. See Sacramento

13 Cty. Sup. Court Case No. 34-2019-80003111-CU-WM-GDS, Docket No. 21 (indicating that the case

14 had been reassigned from Department 27 to Department 18); compare Sacramento County Superior

15 Court 2019 Civil Judicial Assignments, available at saccourt.ca.gov/civil/docs/cv-2019-judicial-

16 assignments.pdf (last visited November 4, 2019) (indicating that Department 27 is designated to handle

17 CEQA cases) with Sacramento County Superior Court Phone Directory- Judicial (indicating that

18 Department 18 is designated to handle “Trial/ Civil Harassment TROs/ Fee Waivers (Back-up)/

19 Misdemeanor Warrants”). Therefore, it is decidedly unclear whether the parallel state lawsuits are

20 actually being handled by a judge designated under California Public Resources Code § 21167.1(b) as a

21 CEQA specialist.

22 Accordingly, because the parties have not had the opportunity to address this issue, the Board

23 shall, on or before November 12, 2019, file a supplemental brief no longer than five pages in length

24 explaining its position on how this development impacts the Burford analysis. Alternatively, the Board

25 may withdraw its reliance on Burford. Thereafter, the United States shall have three days to file a 2

3 IT IS SO ORDERED.

4 Dated: November 4, 2019 /s/ Lawrence J. O’Neill _____

UNITED STATES CHIEF DISTRICT JUDGE

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