SUPERIOR COURT OF THE STATE OF CALIFORNIA
12345MICHAEL A. BRODSKY, SBN 219073Law Offices of Michael A. Brodsky201 Esplanade, Upper SuiteCapitola, California 95010Telephone: (831) 469-3514 Fax: (831) 471-9705Email: Michael@brodskylaw.netAttorney for Petitioner/PlaintiffSAVE THE CALIFORNIA DELTA ALLIANCE6789101112131415SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF SAN FRANCISCOSAVE THE CALIFORNIA DELTAALLIANCEPetitioner and Plaintiff,v.DELTA STEWARDSHIP COUNCIL, astate public agency, andDoes 1 through 100, inclusive,1617Respondents and Defendants.CEQA CASECase No.:VERIFIED PETITION FOR A WRITOF MANDATE AND COMPLAINTFOR INJUNCTIVE ANDDECLARATORY RELIEF (Pub. Res.Code §§ 21000 et seq.; Water Code §§85000 et seq.; Code Civ. Proc. §§ 1060,1085, 1094.5; Gov. Code §§ 11342.2,11350)181920212223242526Petitioner Save the California Delta Alliance’s Verified Petition and Complaint
12INTRODUCTIONPetitioner alleges:341.This action challenges the Delta Stewardship Council’s (“Council”)5approval of the Delta Plan and proposed Delta Plan Regulations because the Plan and6Regulations violate the Sacramento-San Joaquin Delta Reform Act of 2009, Cal. Water78910Code §§ 8500–85350 (“Delta Reform Act”), which created the Council and directed it toformulate the Plan and Regulations. This action also challenges the Council’scertification of the Delta Plan’s Final Programmatic Environmental Impact Report11(“PEIR”) and adoption of Findings and a Statement of Overriding Considerations because12the PEIR, Findings, and Statement fail to comply with the California Environmental13Quality Act, Pub. Res. Code § 21000 et seq (“CEQA”) and fail to comply with CEQA’s14implementing regulations, 14 Cal. Code Regs. § 15000 (“CEQA Guidelines”).151617182.The Sacramento, San Joaquin, Cosumnes, and Mokelumne Rivers, alongwith their tributaries, drain the vast Delta watershed, which covers 45,000 square miles(30,000,000 acres) stretching from Fresno to the Oregon border. The Delta is formed at19the confluence of these rivers and covers an area of approximately 1300 square miles20located in a triangular area roughly between Sacramento, Manteca, and Benicia. The21Delta’s myriad branching sloughs, marshes, and islands provide critical habitat for2223numerous species, a boating and recreational wonderland enjoyed by hundreds ofthousands of Californian’s each year, and a productive agricultural landscape rich in242526culture and history. Proposed Final Delta Plan Redline Version, adopted May 16, 2013 at1Save the California Delta Alliance’s Verified Petition and Complaint
19 (“Delta Plan”). The Delta is also the hub of California’s water infrastructure system;2more than two thirds of the state’s residents and over two million acres of farmland3456receive water exported from the Delta through state and federal pumping plants andcanals. Cal. Water Code § 85004(a). The federally operated Central Valley Project, stateoperated State Water Project, and locally operated regional canals form the largest7contiguous piece of water supply infrastructure in the world, reaching almost every corner8of the state. The vast amount of water exported through this water conveyance system9from the Delta’s critical aquatic habitat causes “an ever spiraling tension over water1011exports and ecosystem decline.” Delta Plan at 10 (citation omitted).3.The Council and the Delta Plan came to life because in 2009 the legislature121314found that the “Sacramento-San Joaquin Delta watershed and California’s waterinfrastructure are in crises and existing Delta policies are not sustainable. Resolving the15crisis requires fundamental reorganization of the state’s management of Delta watershed16resources.” Cal. Water Code § 85001(a). To achieve the requisite reorganization the17legislature created the Council and charged it with developing the Delta Plan, which is18192021the “comprehensive, long-term management plan for the Delta . .” Cal Water Code §85059. Because of the urgency, vast scale, and complexity of the problem, the legislatureendowed the Council with the powers of a super-agency and authorized it to coordinate22the activities of all other state agencies responsible for the Delta, directing the Council to23“establish and oversee a committee of agencies responsible for implementing the Delta24Plan.” Cal. Water Code § 85204.25262Save the California Delta Alliance’s Verified Petition and Complaint
1234564.The crux of Petitioner’s complaint and proximate cause of the Council’sCEQA and Delta Reform Act violations, is that the Council has utterly fallen down on itsmission. With only a few narrow exceptions, the Council has failed to take up thelegislature’s charge to promulgate a concrete and specific action plan to resolve the crises.Instead it has done little more than rehearse existing law and policy, discuss problems7facing the Delta in general terms, and conclude that the Council is an innocent but8impotent bystander: “The Delta Plan’s likelihood of nudging already considered projects9forward, and the Delta Plan’s degree of influence on future undefined projects, is1011unclear.” DPEIR at 2B-2. “How much influence the Council will have is unclear.” Id. Inthe critical area of water conveyance the Council’s view of its own authority is so timid1213141516171819that it believes that it has only “the authority to opine generally about improving Deltaconveyance as it may relate to the rest of the Delta Plan . .” DPEIR at 23–25.5.The net result of the Council’s abdication is to convert the DeltaPlan into little more than a rubber stamp for the massive and controversialwater diversion project known inaptly as the Bay Delta Conservation Plan(“BDCP”) while leaving the Bay-Delta ecosystem without protection.THE PARTIES2021Petitioner and Plaintiff Save the California Delta Alliance226.23242526Petitioner Save the California Delta Alliance is anunincorporated association validly existing under the laws of the State ofCalifornia. Its organizational purpose is to work with local, state, and federal3Save the California Delta Alliance’s Verified Petition and Complaint
1government to create a balanced state water plan that keeps the California2Bay-Delta Estuary a safe and healthy environment while providing345reasonable water exports for other parts of the state.7.STCDA represents an active membership of over 7006individuals. STCDA members own waterfront homes with attached docks in7the Delta, swim, fish, boat, water-ski, wakeboard, and otherwise recreate in891011the Delta. STCDA members earn their livings in Bay-Delta relatedbusinesses, including marinas, fishing enterprises, water sports enterprises,Delta waterfront real estate agencies, and many other Bay-Delta related12enterprises. STCDA members also live, work, boat, fish, and recreate in San13Francisco, on San Francisco Bay, and in the Pacific Ocean adjacent to San14151617Francisco.Respondent and Defendant Delta Stewardship Council8.Respondent and Defendant California Delta Stewardship Council18(“Council) is an agency of the State of California. Cal. Water. Code, § 85200(a) The19Council has powers including the power to be sued. Cal. Water. Code, § 85210(a).20212223242526Does 1 through 1009.Petitioners are currently unaware of the true names and capacities of Does1 through 100, inclusive, and therefore sue those parties by such fictitious names. Does 1through 100, inclusive, are agents of the State government who are responsible in somemanner for the conduct described in this Petition, or other persons or entities presently4Save the California Delta Alliance’s Verified Petition and Complaint
1unknown to the Petitioners who claim some legal or equitable interest in the program that2is the subject of this action. Petitioners will amend this Petition and Complaint to show3the true names and capacities of Does 1 through 100 when such names and capacities45become known.JURISDICTION6710.This Court has jurisdiction over this action pursuant to sections 21168 and821168.5 of the Public Resources Code, sections 1085 and 1094.5 and of the Code of Civil9Procedure, and sections 11342.2 and 11350 of the Government Code.1011121311.This action is timely filed in accordance with Public Resources Codesection 21167(b) and CEQA Guideline section 15112.12.Petitioner has complied with Public Resources Code section 21167.5 by14providing written notice of commencement of this action to the Council prior to filing this15Petition and Complaint. A true and correct copy of the notice, along with proof of service,16is attached hereto as Exhibit A.1718VENUE13.Venue for this action properly lies in the San Francisco Superior Court1920because in a CEQA case the cause of action arises in the county where the effects of the21action will be felt not in the County where the public agency sits or made its approval.22California State Parks Found. v. Superior Court, 150 CA 4th 826, 834 (2007) (holding23that “a cause arises in the county where the effects of the administrative action are felt, not2425265Save the California Delta Alliance’s Verified Petition and Complaint
1where the agency signs the challenged order or takes the challenged action.”) (citation and2quotation marks omitted).314.The Council’s action will have significant negative impacts on multiple456aspects of environmental quality throughout the San Francisco Bay-Delta estuary andbeyond. However, the Council’s action will have a highly visible and infamous impact on7the waters of San Francisco Bay and the Pacific Ocean within and adjacent to San8Francisco.915.10111213The Council’s action will likely lead to the extirpation of winter run andspring run Chinook Salmon in the Sacramento River. See National Marine FisheriesProgress Assessment, April 4, 2013, available nmfs progress assessment regarding th14e bdcp administrative draft 4-11-13-sflb.pdf (last visited June 15, 2013). The Chinook15is the largest of Salmon, often exceeding forty pounds and growing up to 100 pounds. No16other Salmon approaches this size. Although the Chinook spawns in the Sacramento17River, it spends a good portion of its life in the waters in and around San Francisco.18Disappearance of these marvelous fish from San Francisco waters would strike a sharp1920blow to recreational and commercial fishing in San Francisco. The Bay Area’s most21visible symbol of a thriving fishery and productive estuary, Fisherman’s wharf, will be22significantly and adversely impacted.232416.Disappearance of the Sacramento Run Chinook Salmon will likely be themost visible failure of the Delta Plan and will likely receive statewide, national, and25266Save the California Delta Alliance’s Verified Petition and Complaint
1international attention. The hope for recovery of the Chinook is on par with what recovery2of the Bald Eagle has been to the national commitment to environmental stewardship.3Members of STCDA live in San Francisco, fish for Chinook Salmon in and around San456Francisco, and would be directly harmed by the extirpation of this species due to theCouncil’s failures. Petitioner’s mission to achieve a healthy Bay-Delta ecosystem would7be shattered by the disappearance of the Chinook. It “is where the shaft strikes the8plaintiff, not where it is drawn that counts.” State Parks Found., 150 CA 4th at 8349(quotation marks and citation omitted). Although thrown from Sacramento, the Delta10Stewardship Council’s shaft strikes plaintiff a hard blow in the County of San Francisco.11STANDING121317.The purposes of STCDA, to curtail excessive water exports and restore and14protect the Bay-Delta ecosystem including vital fisheries, while enhancing and protecting15the unique agricultural and cultural character of the Delta, and to create a balanced plan to16manage the Bay-Delta ecosystem and statewide water conveyance system will all be17directly, indirectly, substantially and irreparably harmed by the Council’s actions.1818.STCDA members reside within the project area, many within the statutory1920Delta and others in San Francisco and the secondary Delta. Members will suffer direct21and concrete injury in being deprived of their use and enjoyment of the Delta, San22Francisco Bay, and Ocean waters because of the Council’s actions, including diminished23ability to engage in water sports, fishing, and recreational boating.2425267Save the California Delta Alliance’s Verified Petition and Complaint
1219.STCDA and its members have a beneficial interest in preventing theenvironmental harm that will be caused by the Council’s actions.320.STCDA and its members also have a strong interest in enforcing the public456duty of the Council to comply with CEQA and the Delta Reform Act. The Council hasbreeched an important public duty by failing to comply with the CEQA and the Delta7Reform Act. Many persons, such as individual property owners throughout the Delta,8water sports enthusiasts, and others who use the Delta’s waterways and are beneficially9interested in this action would find it difficult to vindicate their own rights. STCDA has101112demonstrated a long-term commitment to the health of the Delta and the rights assertedherein.21.13STCDA and its members have also suffered procedural injury within the14meaning of CEQA and have been and will continue to be directly, indirectly,15substantially, and irreparably harmed by the Council’s failure to provide an adequate and16stable definition of the project, failure to provide an adequate Notice of Preparation, and17failure to provide a concrete and specific plan upon which the public could comment.1822.The Delta Plan as proposed will have a significant negative impact on the1920Bay-Delta’s aquatic environment, will significantly and negatively impact the Delta as21place, will significantly and negatively impact agriculture in the Delta, will harm the22livelihood of STCDA members, and will significantly increase exports of water from the23Delta.2425268Save the California Delta Alliance’s Verified Petition and Complaint
12323.The claims asserted by Petitioner and relief requested are broad: Petitionerseeks to have the Delta Plan, proposed Regulations, and PEIR set aside and remanded tothe Council with instructions to conform the Plan and PEIR to law. Because of the broad4567nature of the claims and relief requested, participation by individual members of STCDAis not required.24.STCDA participated extensively in the Council’s administrative process,8submitting written comments and testifying at public Council meetings. STCDA was9represented in front of the Council by its attorney and numerous individual members also10111213spoke at public Council meetings and noticed public hearings.25.STCDA and its members are directly, adversely, and irreparably affectedand will continue to suffer ongoing harm by the Delta Plan and associated actions, and by14the failure of the Council to comply with CEQA, the Delta Reform Act, and other15provisions of law.1626.1718Petitioner has no adequate remedy at law to redress the extensive, actual,concrete, specific, imminent and irreparable environmental harm caused by the Council’sactions.19EXHAUSTION OF ADMINISTRATIVE REMEDIES202127.Petitioner participated in the administrative process, submitting written22comments, attending and commenting at public Council meetings, and testifying at the23Council’s noticed public hearings. Petitioners raised all the claims raised in this Petition24and all those claims fairly included therein, in their comments to the Council, or those25269Save the California Delta Alliance’s Verified Petition and Complaint
1claims were raised by others to the Council in the course of administrative proceedings2prior to the Council’s approval of the Delta Plan, adoption of the proposed Regulations,3and certification of the PEIR. Petitioner submitted requests for revisions to the Plan and456789Regulations in the form of proposed changes in language to the Plan and Regulations tothe Council and argued for Petitioner’s proposed language at public Council meetingsprior to the Council’s final actions.28.rehearing before the Council or any other state administrative body.10111213There is no further recourse available for administrative appeal orPUBLIC BENEFIT AND ATTORNEY FEES29.Petitioner seeks enforcement of an important right affecting the publicinterest. Petitioners will confer a substantial benefit to the residents of the state of14California generally as well as the residents of the Bay-Delta region. Petitioner will15therefore seek an award of reasonable attorneys’ fees pursuant to section 1021.5 of the16Code of Civil Procedure.17181920212223242526GENERAL ALLEGATIONSThe Council Has Abdicated Its Responsibility To Oversee ConveyanceIn General And The BDCP In Particular30.The legislature did not intend to create a passive and tepidagency; rather by “enacting this division, it is the intent of the Legislature toprovide for the sustainable management of the Sacramento-San JoaquinDelta ecosystem [and to] establish a governance structure that will directefforts across state agencies.” Cal. Water Code § 85001(c).10Save the California Delta Alliance’s Verified Petition and Complaint
12345631.The legislature’s charge regarding the content of the Delta Plan wasspecific and included improving the state’s water conveyance system. The Council shall“develop, adopt, and commence implementation of the Delta Plan [in a way] that furthersthe coequal goals.” Cal. Water Code § 85300(a). The coequal goals are “providing amore reliable water supply for California and protecting, restoring, and enhancing the7Delta ecosystem.” Cal. Water Code § 85054. The legislature found that “achiev[ing]8[certain] objectives [is] inherent in the coequal goals for management of the Delta.” Cal9Water Code § 85020. One of the inherent objectives is to “[i]mprove the water1011conveyance system and expand statewide water storage.” Cal. Water Code § 85020(f).32.However, despite the legislature’s direct charge to the Council to121314“commence implementation,” of the Delta Plan, Cal. Water Code § 85300(a), the specificrequirement that the Delta Plan be the “comprehensive, long-term management plan for15the Delta,” Cal. Water Code § 85059, the Council’s responsibility to “establish and16oversee a committee of agencies responsible for implementing the Delta Plan,” Cal. Water17Code § 85204, and the explicit charge to “further[] the coequal goal,” Cal. Water Code §1819202185300(a), of providing a “more reliable water supply,” Cal. Water Code § 85054, with theinherent objective to “[i]mprove the water conveyance system and expand statewidestorage,” Cal. Water Code § 85020(f), the Council has abdicated its responsibility to22address California’s water conveyance system. It has taken the remarkable position that23conveyance improvements are somehow outside the scope of its mission. In the Council’s24view, its only authority with regard to water conveyance is “the authority to opine252611Save the California Delta Alliance’s Verified Petition and Complaint
1generally about improving Delta conveyance as it may relate to the rest of the Delta Plan2and the coequal goals.” DPEIR at 23–25.345633.Because of its timid view of its own authority with regard to conveyance,the Council has decided that other “agencies are in the best position to complete theplanning process, including defining acceptable ranges of exports and through-Delta7Flows . . ” PEIR at 3-15. Rather than answer the direct, explicit, and mandatory call of8the legislature to improve the state’s water conveyance system, the Council paints itself as9an innocent bystander when it comes to addressing the water infrastructure needs of the1011121314state. “State and federal agencies are exploring options to reconfigure the manner in whichthe Delta is used to convey water . . At this time, the Delta Plan does not makerecommendations regarding Delta conveyance.” Delta Plan at 9.34.The Council’s statement that other agen
13. Venue for this action properly lies in the San Francisco Superior Court because in a CEQA case the cause of action arises in the county where the effects of the action will be felt not in the County where the public agency sits or made its approval. California State Parks Found. v. Superior Court, 150 CA 4th 826, 834 (2007) (holding
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