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BRIGGS LAW CORPORATION [FILE: 1434.14]
Cory J. Briggs (State Bar no. 176284)
Mekaela M. Gladden (State Bar no. 253673)
Anthony N. Kim (State Bar no. 283353)
99 East “C” Street, Suite 111
Upland, CA 91786
Telephone: 909-949-7115
Attorneys for Petitioner San Diego Navy
Broadway Complex Coalition

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF SAN DIEGO--HALL OF JUSTICE

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SAN DIEGO NAVY BROADWAY COMPLEX )
COALITION; and DOES 1 through 10,
)
)
Petitioners,
)
)
vs.
)
)
SAN DIEGO UNIFIED PORT DISTRICT; and )
DOES 11 through 100,
)
)
Respondents;
)
)
SUNROAD ENTERPRISES; SUNROAD )
MARINA PARTNERS, L.P.; DOES 101 through )
1,000,
)
)
Real Parties in Interest.
)

CASE NO.
VERIFIED PETITION FOR WRIT OF
MANDATE UNDER THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT AND
OTHER LAWS

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Petitioner SAN DIEGO NAVY BROADWAY COMPLEX COALITION is informed and
believes and on that basis alleges as follows:

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Parties
1.

Petitioner San Diego Navy Broadway Complex Coalition (“Petitioner”) is a non-profit,

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public-benefit organization formed and operating under the laws of the State of California. At least one

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of Petitioner’s members (i) resides and pays taxes in or near the City of San Diego, California, and

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within the geographical jurisdiction of Defendant and Respondent SAN DIEGO UNIFIED PORT

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DISTRICT; (ii) has an interest in protecting the region’s air quality, minimizing and ameliorating

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traffic, ensuring informed and responsible growth and responsible comprehensive planning therefor,

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and promoting other environment-related quality-of-life issues, including those issues involving San

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Diego Bay and its waterfront; and (iii) has an interest in, among other things, ensuring open, transparent,

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and accountable government decision-making, and protecting the region’s environment.

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2.

Respondent SAN DIEGO UNIFIED PORT DISTRICT (the “Port,” including DOES 11

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through 100) is a public agency under Section 21063 of the Public Resources Code. The Port was

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created by the state Legislature to manage San Diego Bay and its surrounding waterfront land. The Port

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was also the lead agency for purposes of the California Environmental Quality Act (“CEQA”) when

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approving the project that is the subject of this lawsuit.

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3.

Real Parties in Interest SUNROAD ENTERPRISES and SUNROAD MARINA

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PARTNERS, L.P., are the applicants for, claim an ownership interest in, or have some other cognizable

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interest in the project that is the subject of this lawsuit.

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4.

The true names and capacities of the Respondents identified as DOES 11 through 100

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and Real Parties in Interest identified as DOES 101 through 1,000 are unknown to Petitioner, who will

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seek the Court’s permission to amend this pleading in order to allege the true names and capacities as

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soon as they are ascertained. Each of the fictitiously named DOES 11 through 100 has jurisdiction by

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law over one or more aspects of the project that is the subject of this lawsuit and that each of the

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fictitiously named DOES 101 through 1,000 either claims an ownership interest in the proposed project

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or has some other cognizable interest in it.

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Background Information

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5.

On or about March 4, 2014, the Port’s governing body held a public hearing and

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following the closing thereof passed and adopted a resolution certifying that certain revised final

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environmental impact report assigned State Clearinghouse no. 2006021027 (“EIR”) for the proposed

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Sunroad Harbor Island Hotel and East Harbor Island Subarea Port Master Plan Amendment Project

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(“Project”).

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6.

In general terms, the Project involves the construction of a 117,00-square-foot, 175-room

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hotel with related facilities, amenities, and improvements, as well as an amendment of the Port Master

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Plan to change the applicable land-use designation to increase the number of hotels that may be

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developed in the area from one to three.

P ETITION

FOR

W RIT O F M AN D ATE ETC .

Page 2

 1

Notice Requirements and Time Limitations

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3

7.

This proceeding is being commenced not more than 30 days after the notice authorized

by Public Resources Code Section 21152 was filed with the county clerk (if such a notice was filed).

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8.

Petitioner has caused a Notice of Commencement of Action to be served on

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Respondents, as required by Public Resources Code Section 21167.5. A true and correct copy of the

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Notice of Commencement of Action is attached to this pleading as Exhibit “A.”

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9.

Petitioner will have caused a copy of this pleading to be served on the Attorney General

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not more than ten days after the commencement of this proceeding, as required by Public Resources

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Code Section 21167.7 and Code of Civil Procedure Section 388.

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Jurisdiction and Exhaustion of Administrative Remedies

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10.

Petitioner seeks review by and relief from this Court under Public Resources Code

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Sections 21168 and 21168.5, as applicable, and Code of Civil Procedure Sections 1060 et seq. and 1084

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et seq., among other provisions of law.

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11.

Petitioner exhausted administrative remedies to the extent required by law; by way of

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example and without limitation, Petitioner submitted written comments to the Port prior to the close

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of the public hearing on the Project.

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12.

Respondents’ conduct in approving this Project without complying with CEQA

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constitutes a prejudicial abuse of discretion because, as alleged in this pleading, they failed to proceed

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in a manner required by law.

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13.

Petitioner has no plain, speedy, and adequate remedy in the ordinary course of law, since

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its members and other members of the public will suffer irreparable harm as a result of Respondents’

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violations of CEQA and other applicable laws. Respondents’ approval of the Project also rests on their

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failure to satisfy a clear, present, ministerial duty to act in accordance with the applicable laws. Even

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when Respondents are permitted or required by law to exercise their discretion in approving projects

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under those laws, they remain under a clear, present, ministerial duty to exercise their discretion within

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the limits of and in a manner consistent with those laws. Respondents have had and continue to have

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the capacity and ability to approve the Project within the time limits of and in a manner consistent with

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P ETITION

FOR

W RIT O F M AN D ATE ETC .

Page 3

 1

those laws, but Respondents have failed and refused to do so and have exercised their discretion beyond

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the limits of and in a manner that is not consistent with those laws.

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4

14.

Petitioner has a beneficial right and interest in Respondents’ fulfillment of all their legal

duties, as alleged in this pleading.

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FIRST CAUSE OF ACTION:
Violations of the California Environmental Quality Act
(Against All Respondents and Real Parties in Interest)

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7

15.

Paragraphs 1 through 14 are fully incorporated into this paragraph.

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16.

CEQA requires that every environmental impact report identify and analyze the

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significant adverse environmental impacts of a proposed project, giving due consideration to both short-

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term and long-term impacts, providing decision-makers with enough information to enable them to

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make an informed decision with full knowledge of the likely consequences of their actions, and

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providing members of the public with enough information to participate meaningfully in the project-

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approval and environmental-review process. CEQA also requires that every environmental impact

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report identify and analyze a reasonable range of alternatives to a proposed project. CEQA further

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requires that every environmental impact report identify and analyze all reasonable mitigation measures

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for a proposed project’s significant adverse environmental impacts. CEQA even that when significant

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new information is added to an EIR after public notice is given of the availability of the draft EIR for

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public review, but before certification, the lead agency must re-circulate the EIR. Additionally, a lead

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agency must re-circulate the EIR when it is so fundamentally flawed that it precludes meaningful public

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review and comment. In each respect, CEQA mandates that the analyses contained in an environmental

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impact report and all decisions of the lead agency based on the report be supported by substantial

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evidence in the administrative record.

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17.

The Project’s EIR fails to provide adequate identification and analysis of the significant

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adverse environmental impacts of the Project, including but not limited to the following: (i) traffic and

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transportation; (ii) air quality; (iii) greenhouse gas emissions; (iv) water supply; (v) hydrology and water

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quality; and (vi) cumulative impacts. Further, neither the analysis of impacts in the Project’s EIR nor

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Respondents’ certification of the EIR in this respect is supported by substantial evidence in the

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administrative record.

P ETITION

FOR

W RIT O F M AN D ATE ETC .

Page 4

 1

18.

Additionally and alternatively, the Project’s EIR fails to provide adequate identification

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and analysis of a reasonable range of alternatives to the Project. Further, neither the analysis of

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alternatives in the EIR nor Respondents’ certification of the EIR in this respect is supported by

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substantial evidence in the administrative record.

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19.

Additionally and alternatively, the Project’s EIR fails to provide adequate identification

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and analysis of measures to mitigate the Project’s significant adverse environmental impacts and fails

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to eliminate or substantially reduce all such impacts. Further, neither the analysis of mitigation

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measures nor Respondents’ certification of the EIR in this respect is supported by substantial evidence

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in the administrative record.

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20.

Additionally and alternatively, significant new information was added to the EIR after

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public notice was given of the availability of the draft EIR. By way of example and without limitation,

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new reports were prepared after the public-comment period but prior to certification, leaving the public

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and/or public agencies without the opportunity to evaluate the new data and the validity of the

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conclusions drawn from them.

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21.

Respondents’ failure to provide adequate identification and analysis of the significant

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adverse environmental impacts, reasonable range of alternatives, and mitigation measures for this

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project constitutes multiple violations of CEQA, as does the failure to re-circulate the EIR.

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22.

As a result of Respondents’ violations of CEQA, Petitioner has been harmed in that

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Petitioner, the public, and the decision-makers who approved the Project were not fully informed about

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the impacts of, mitigation measures for, and alternatives to the Project prior to its approval.

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Prayer

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FOR ALL THESE REASONS, Petitioner respectfully prays for the following relief against

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Respondents and Real Parties in Interest (and any and all other parties who may oppose Petitioner in

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this proceeding):

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A.

A judgment or other appropriate order determining or declaring that Respondents failed

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to fully comply with CEQA and other applicable laws as they relate to the Project and that there must

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be full compliance therewith before final approval of the Project may be granted;

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P ETITION

FOR

W RIT O F M AN D ATE ETC .

Page 5

 1

B.

A judgment or other appropriate order determining or declaring that Respondents failed

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to comply with CEQA and other applicable laws as they relate to the Project and that its approval

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(including all associated entitlements) was illegal in at least some respect, rendering the approval null

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and void;

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C.

Injunctive relief prohibiting Respondents and Real Parties in Interest (and any and all

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persons acting at the request of, in concert with, or for the benefit of one or more of them) from taking

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any action on any aspect of, in furtherance of, or otherwise based on the Project unless and until

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Respondents comply with CEQA and all other applicable laws, as determined by the Court;

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10

D.

Any and all other relief that may be authorized by CEQA or other applicable laws, or

any combination of them, but is not explicitly or specifically requested elsewhere in this Prayer;

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E.

Any and all legal fees and other expenses incurred by Petitioner in connection with this

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proceeding, including but not limited to reasonable attorney fees as authorized by the Code of Civil

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Procedure; and

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F.

Any and all further relief that this Court may deem appropriate.

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Date: April 2, 2014.

Respectfully submitted,

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BRIGGS LAW CORPORATION

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18

By:

______________________________
Cory J. Briggs

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Attorneys for Petitioner San Diego Navy Broadway
Complex Coalition

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P ETITION

FOR

W RIT O F M AN D ATE ETC .

Page 6

 PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT AND OTHER LAWS
Exhibit “A”

 BRIGGS LAW CORPORATION
San l[)jego Ciffice:
814 !Morena lfJouCevartf, Suite 107
San l[)jego, c;l92110

Infant! 'Empire Office:
99 'East "C" Street, Suite 111

Vpfantf, c;l91786
'I'efepfione: 909-949-7115
'Facsimife: 909-949-7121

'I'efepfione: 619-497-0021
'Facsimife: 619-515-6410
!I'Cease respontf to: Infant! 'Empire Office

IJJLC 'Fife(s) 1434.14

2 April2014

Via Fax to 619-686-6555

San Diego Unified Port District
Board of Port Commissioners
c/o District Clerk Tim Deuel
3165 Pacific Highway
San Diego, CA 9210 I
Re:

Notice of Commencement of Action

Dear San Diego Unified Port District:
I represent the San Diego Navy Broadway Complex Coalition and am sending this Notice
of Commencement of Action on my client's behalf.
Please be advised that an action is to be commenced by my client in San Diego County
Superior Court against your agency. The action will challenge your agency's approval (and all
associated entitlements and certifications) of the project that was the subject ofltem 26 on the Board
of Port Commissioners' March 4, 2014 agenda (i.e., Sunroad Harbor Island Hotel Project and East
Harbor Island Subarea Port Master Plan Amendment), on the grounds that the approval violated the
California Environmental Quality Act (PUB. REs. CODE§ 21000 et seq.) and the California Coastal
Act (PUB. REs. CoDE§ 30000 et seq.). The action may also challenge your agency's approval of the
project based on one or more violations of other laws.
If you have any questions, please feel free to contact me.
Sincerely,

 BRIGGS LAW CORPORATION
InCand !Empire Office:

San ([)ieoo Office:
814 'Morena (]3ou{evartf, Suite 101
San (])ieoo, CJI 92110

99 'East

~c~

Street, Suite 111
Vp{amf, C)I 91786

<Tdepfione: 619-49?-0021

<TeCepfione: 909-949-7115

Pacsimde: 619-515-6410

Pacsimife: 909-949-7121

FACSIMILE COVER SHEET
Recipient: Board of Port Commissioners c/o District Clerk Tim Deuel
Recipient's fax number: :::.61.:..:9::....-::::68~6::....-::::65~5::::5:...___ _ _ _ _ _ __
Date: 2 April 2014

B LC

File :_,_14.:. :3::.. .:4.:. .:.1c..:4_ __

Total Pages (including cover sheet): :::.2.:...A:~::P:..::rii'-'2'-"0c.:.14-'-----Sender: Cory J. Briggs
Sender's fax number:

619-515-6410

X

909-949-7121
'7H~t~-~l(

Message:Piease see the following Notice of Commencement of Action.~

Original Document to Follow? _ _ Yes

__x_ No

CONFIDENTIALITY
The document accompanying this facsimile transmission contains information that may be either
confidential, legally privileged, or both. The information is intended only for the use of the recipient(s)
named on this cover sheet. If not done by or at the direction of the recipient(s), disclosure, copying.
distribution, or reliance on any of the contents of this transmission is strictly prohibited. If you have
received this facsimile transmission in error, please notify us immediately by telephone so that we can
arrange for its return at no cost to you.

Yrtl ·

 TRANSMISSION VERIFICATION REPORT
TIME
NAME
FAX
TEL
SER.#

DATE, TIME
FAX NO. /NAME
DURATION
PAGE(S)
RESULT
MODE

04/02/2014 09:10AM
BRIGGS LAW CORP
9099497121
U53088K2N278525

04/02 09:09AM
915195855555
00:00:38
02

OK
STANDARD
ECM

BRIGGS LAW CORPORATION
San tiJugo offico:
814

~anna

ln&tru('£mpir< Offict:
99 !/last
Stre<t. Suite 111

·c·

lBouft:'J}an£. Suitsl_l)'1

Satt a:JUao, CA 92110

Vpfan~ CA 91'186

'I'.Csp~on•: 6!9-497-002!
PacsimiU..• 619-515-6410

'I't:Upfum6: 909-949-7115

Pac.simi(e; 909-949-'1121

FACSIMILE COVER SHEET
Recipient: Board of Port Commissioners c/o District Clerk Tim Deuel
Recipient •s fax number: :<6.:.:19::...-~68:;::6::...-6:;::5;:.:;5::;:5_ _ _ _ _ _ _ __
Date: 2 April 2014

BLC

File:..:.14..:.:3::..:4~.1..:..4_ __

Total Pages (including cover sheet): .:2.:;.A:~::p~ril~2:.:!:0..:...14..:....__ _ __
Sender: Cory J. Briggs
Sender's fax number:

619-515-6410 L

909-949-7121
'JH~t~-~K '/nt•

Message: Please see the following Notice of Commencement of Action.

<uD

 VERIFICATION

0
0

STATE OF CALIFORNIA, COUNTY OF San Bernardino
I have read the foregoing Petition for Writ of Mandate under
the California Environmental Quality Act etc.
and know its contents.
(S] CHECK APPLICABLE PARAGRAPH
I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to
those matters which are stated on information and belief, and as to those matters I believe them to be true.
I am D an Officer D a partner
D a
of _ _ _ _ _ _ _ _ _ __
a party to this action, and am authorized to make this verification for and on its behalf, and I make this verification for that
reason. D I am informed and believe and on that ground allege that the matters stated in the foregoing document are
true. D The matters stated in the foregoing document are true of my own knowledge except as to those matters which
are stated on infonnation and belief, and as to those matters I believe them to be true.
I am one of the attorneys for San Diego Navy Broadway Complex Coalition
a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make
this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that the
matters stated in the foregoing document are true.
Executed on April 2
, 20 14
, at Upland
, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and c rrect.

Cory J. Briggs
Type or Print Name

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF
I am employed in the county of
I am over the age of 18 and not a party to the within action; my business address is,

, State of California.

, I served the foregoing document described as

On _ _ _ _ _ ,20

on

0
0

"b"y-:p"Iac:-c~i-n-:g-;t;:-he.,-;ctr"u"e-c=-o-:pccie-:s:-tcchc:e-re-o-cf;ce-n-c'Io-s-e-d'i,-n-s-c-a'Ie'""d'e-c-nvelopes addressed as stated on the attached mailing list:

0

BY MAIL

0
0
0

by placing

D

the original

D

in this action

a true copy thereof enclosed in sealed envelopes addressed as follows:

0 * I deposited such envelope in the mail at
, California.
The envelope was mailed with postage thereon fully prepaid.
0 As follows I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing.

Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at
California in the ordinary course of business. I am aware that on motion of the
party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit.
Executed on
, 20 _,at
, California.
**(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee.
, at
, California.
Executed on
, 20
I declare under penalty of perjury under the lawSOf the State of California that the above is true and correct. I
(State)
(Federal)
declare that I am employed in the office of a member of the bar of this court at whose direction the service was
made.

Type or Print Name

Signature
• (By MAIL SIGNATURE MUST BE OF PERSON DEPOSITING ENVELOPE IN
MAIL SLOT BOX. OR BAG}
"(FOR PERSONAL SERVICE SIGNATURE MUST BE THAT OF MESSENGER}
2001 © Amencan LegaiNet, Inc

 SAN DIEGO NAVY BROADWAY COMPLEX COALITION VS. SAN DIEGO UNIFIED PORT DISTRICT [E-FILE], Docket No.

General Information

Court

California Superior Court, San Diego County

Docket Number

201400009407

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 12

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BRIGGS LAW CORPORATION [FILE: 1593.081
Cory J. Briggs (State Bar no. 176284)
Mekaela M. Gladden (State Bar no. 253673)
99 East "C" Street, Suite 111

L

E D
2P!!NOY23 P11M2:St

G.d of tia $uporkw Cowt

NOV 2 3 2011

Upland, CA 91786
Telephone: 909-949-7115
Fax: 909-949-7121
COAST LAW GROUP, LLP
Marco A. Gonzalez (State Bar no. 190832)
Livia Borak (State Bar no. 259434)
1140 South Coast Highway 101
Encinitas, CA 92024
Telephone: 760-942-8505
Fax: 760-942-8515
Attorneys for Plaintiffs and Petitioners San Diegans for Open Government
and Coastal Environmental Rights Foundation

ORIGINAL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO--CENTRAL DIVISION
SAN DIEGANS FOR OPEN GOVERNMENT
and COASTAL ENVIRONMENTAL RIGHTS
FOUNDATION;

CASE NO.

Plaintiffs and Petitioners,
vs.
}

CITY OF SAN DIEGO and DOES 1 through 100, )

37-2011-00101571-CU-TT-CTL

VERIFIED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF AND PETITION FOR WRIT OF
MANDATE UNDER THE SAN DIEGO
MUNICIPAL CODE, CALIFORNIA
ENVIRONMENTAL QUALITY ACT AND
OTHER LAWS

Defendants and Respondents;

DOES 101 through 1,000,
22

Defendants and Real Parties in Interest.

23
24
25

Plaintiffs and Petitioners SAN DIEGANS FOR OPEN GOVERNMENT and COASTAL
ENVIRONMENTAL RIGHTS FOUNDATION allege as follows:

26
27
28

Parties
I.

Plaintiff and Petitioner SAN DIEGANS FOR OPEN GOVERNMENT ("SanDOG") is

a non-profit, social-advocacy organization formed and operating under the laws of the State of

 1

California. SanDOG's members reside in or near the City of San Diego, California, and have an interest

2 in ensuring open, accountable, responsive government and in protecting the region's environment.
3

SanDOG has been an active participant in storm water issues affecting the City of San Diego.

4

SanDOG's members regularly use areas within and throughout the City of San Diego that are affected

5

by storm water and runoff.

6

2.

Plaintiff and Petitioner COASTAL ENVIRONMENTAL RIGHTS FOUNDATION

7

("CERF") is a non-profit public benefit corporation, organized and existing under the laws of the State

8

of California, with its principal place of business in Encinitas, California. CERF is an environmental

9

organization dedicated to the protection and enhancement of coastal natural resources and the quality

10

of life for coastal residents, including the beaches, coastline and ocean waters in and around San Diego,

11

California. Members of CERF regularly use areas within and throughout the City, including parks,

12

beaches and ocean waters.

13

3

Defendant and Respondent CITY OF SAN DIEGO ("CITY") is a public agency under

14

Section 21063 of the Public Resources Code. CITY is authorized and required by law to hold public

15

hearings, to determine the adequacy of and certify environmental documents prepared pursuant to the

16

California Environmental Quality Act ("CEQA"), and to take other actions in connection with the

17

approval of projects within its jurisdiction.

18

4

The true names and capacities of the Defendants/Respondents identified as DOES 1

19

through 100 and Real Parties in Interest identified as DOES 101 through 1,000 are unknown to

20

Plaintiffs/Petitioners, who will seek the Court's permission to amend this pleading in order to allege

21

the true names and capacities as soon as they are ascertained. Plaintiffs/Petitioners are informed and

22

believes and on that basis alleges that each of the fictitiously named Defendants/Respondents 1 through

23

100 has jurisdiction by law over one or more aspects of the proposed project that is the subject of this

24

proceeding and that each of the fictitiously named Real Parties in Interest 101 through 1,000 either

25

claims an ownership interest in the proposed project or has some other cognizable interest in the

26

proposed project.

27
28

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 2

 Background Information
5.

The project that is the subject of this proceeding is known as the Master Storm Water

System Maintenance Program ("Project").
6.

In October 2004, Defendants/Respondents issued aNotice ofPreparation for the Project.

7.

In July 2005, Defendants/Respondents issued a Revised Notice of Preparation for the

8.

By July 2009, Defendants/Respondents had prepared a draft Programmatic

Project.

Environmental Impact Report ("PEIR"). During the public-comment period, Defendants/Respondents
received written comments from the Department of Fish and Game, Department of Parks and
Recreation, Department of Toxic Substances Control, Department of Transportation, District 11, the
City of San Diego Wetlands Advisory Board, the County of San Diego Department of Public Works,
the California Native Plant Society, Friends of Chollas Creek, Friends of Rice Canyon, Friends of Rose
Canyon, Friends of Switzer Canyon, the Greater Golden Hill Planning Committee, Los Penasquitos
Lagoon Foundation, Marian Bear Natural Park Recreation Council, San Diego Audubon Society, San
Diego Canyonlands, San Diego Canyons Coalition, San Diego Coastkeeper, San Diego County
Archaeological Society, Inc., Thirty-Second Street Canyon Task Force, and a number of individuals.
9.

On Mary 13, 2010, Defendants'/Respondents' planning commission voted to approve

the Project, certify the PEIR, adopt the Findings and Statement of Overriding Considerations, adopt the
Mitigation, Monitoring and Reporting Program, and to approve a coastal development permit and site
development permit.
10.

On May 27,20 10, San Diego Coastkeeper, CERF, San Diego Audubon Society, Friends

of Rose Canyon, Sierra Club, San Diego Chapter, San Diego Canyonlands, and the California Native
Plant Society appealed the planning commission's decision to Defendants'/Respondents' city council.
11.

On June 15, 2011, Defendants/Respondents posted a Notice of Availability for a

Recirculated Draft PEIR for a public-comment period ending on July 29, 2011 (i.e. a 44-day public
comment period).

12.

Despite the 44-day public-comment period, a number of individuals and groups

submitted written comments on the Recirculated Draft PER, including Plaintiffs/Petitioners.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 3

 13.

On October 24, 2011, Defendants'/Respondents' city council held a hearing to consider

the appeal filed in 2010 over the planning commission's approval of the original PEIR. However, the
city council was considering the Recirculated PEIR, which was never considered by the planning
4

commission, and new coastal development and site development permits, which were substantially
modified from what was considered by the clanning commission.

A number of written and oral

comments were considered at the city council's appeal hearing. The city council ultimately certified
the Recirculated PEIR and approved modified coastal development and site development permits.
14.

Plaintiffs/Petitioners have appealed the coastal development permit to the California

Coastal Commission.
15.

Plaintiffs/Petitioners oppose the Project and challenge certain actions taken by

Defendants/Respondents. In particular, Plaintiffs/Petitioners seek to invalidate the certification of the
Recirculated PEIR and related actions and approvals with respect to the Project on the grounds that
Defendants/Respondents violated CEQA and other laws.
Notice Requirements and Time Limitations
16.

This proceeding is being commenced not more than 30 days after the notice authorized

by Public Resources Code Section 21108(b) or 21152(b) was filed. The notice of determination was
filed with the San Diego County Clerk on October 28, 2011.
17

SanDOG has caused a Notice of Commencement of Action to be served on

Defendants/Respondents, as required by Public Resources Code Section 21167.5. A true and correct
copy of the Notice of Commencement of Action is attached to this pleading as Exhibit "A."
18.

CERF has caused a Notice of Commencement of Action to be served on

Defendants/Respondents, as required by Public Resources Code Section 21167.5. A true and correct
copy of the Notice of Commencement of Action is attached to this pleading as Exhibit "B."
19

Plaintiffs/Petitioners will have caused a copy of this pleading to be served on the

Attorney General not more than ten days after the commencement of this proceeding, as required by
Public Resources Code Section 21167.7 and Code of Civil Procedure Section 388.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 4

 Jurisdiction and Exhaustion of Administrative Remedies
20.

Plaintiffs/Petitioners seek review by and relief from this Court under Public Resources

Code Section 21168 or 21168.5, as applicable; and Code of Civil Procedure Sections 1060 etseq. and
1084 et seq., among other provisions of law.
21.

Plaintiffs/Petitioners exhausted administrative remedies to the extent required by law.

Alternatively and additionally, neither Public Resources Code Section 21177(a)-(b) nor any other
exhaustion-of-remedies requirement maybe applied to Plaintiffs/Petitioners. By way of example, and
without limitation, Plaintiffs/Petitioners submitted written comments during the administrative
proceedings as well as provided oral testimony at the appeal hearing on the Project.
22.

Defendants'/Respondents' conduct in approving the Project without complying with

CEQA and the San Diego Municipal Code ("SDMC") constitutes a prejudicial abuse of discretion
because, as alleged in this pleading, they failed to proceed in the manner required by law and made
findings not supported by substantial evidence.
23.

Plaintiffs/Petitioners have no plain, speedy, adequate remedy in the ordinary course of

law, since their members and other members of the public will suffer irreparable harm as a result of
Defendants'/Respondents' violations of CEQA, the California Coastal Act, the SDMC, and other laws.
Defendants'/Respondents' approval of the Project also rests on the failure to satisfy a clear, present,
ministerial duty to act in accordance with those laws.

Even when Defendants/Respondents are

permitted or required by law to exercise their discretion in approving projects under those laws, they
remain under a clear, present, ministerial duty to exercise their discretion within the limits of and in a
manner consistent with those laws. Defendants/Respondents have had and continue to have the capacity
and ability to approve the Project within the limits of and in a manner consistent with those laws, but
Defendants/Respondents have failed and refuse to do so and have exercised their discretion beyond the
limits of and in a manner that is not consistent with those laws.
24.

Plaintiffs/Petitioners have a beneficial right and interest in Respondents' fulfillment of

all their legal duties, as alleged in this pleading.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 5

 FIRST COUNT:
Invalid Coastal Development Permit
(Against All Defendants/Respondents and Real Parties in Interest)
25.

Paragraphs 1 through 24 are fully incorporated into this paragraph.

26.

Section 126.0708 of the San Diego Municipal Code sets forth a number of findings that

must be made before the issuance of coastal development permits, including a finding that the proposed
coastal development will not adversely affect environmentally sensitive lands and the proposed coastal
development is in conformity with the certified Local Coastal Program land-use plan.
27.

The Project constitutes "coastal development" within the meaning ofthe SDMC and the

California Coastal Act.
28.

The findings cannot be made for the Project, or such findings are unsupported by

substantial evidence. By way of example and not limitation, the finding that the Project will not
adversely affect environmentally sensitive lands cannot be made. Defendants/Respondents determined,
among other things, that the Project will have a significant and unmitigated cumulative impact because
loss of vegetation could increase downstream urban pollutants due to the loss of natural removal
through root systems of in-channel vegetation. This is an adverse impact to environmentally sensitive
lands.
29.

Plaintiffs/Petitioners, their members, and other members of the public have been harmed

as a result of Defendants'/Respondents' violation of the California Coastal Act and the SDMC because
they have been denied the benefits and protections provided by compliance with the California Coastal
Act and the SDMC.
SECOND CAUSE OF ACTION:
Failure to Prepare Adequate Environmental Impact Report
(Against All Defendants/Respondents and Real Parties in Interest)
30.

Paragraphs 1 through 29 are fully incorporated into this paragraph.

31.

CEQA requires that every environmental impact report identify and analyze the

significant adverse environmental impacts of a proposedproject, giving due consideration to both shortterm and long-term impacts, providing decision-makers with enough information to enable them to
make an informed decision with full knowledge of the likely consequences of their actions, and
providing members of the public with enough information to participate meaningfully in the projectapproval and environmental-review process. CEQA also requires that every environmental impact

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 6

 1

report identify and analyze a reasonable range of alternatives to a proposed project. CEQA further

2

requires that every environmental impact report identify and analyze all reasonable mitigation measures
for a proposed project's significant adverse environmental impacts. In each respect, CEQA mandates
that the analyses contained in an environmental impact report and all decisions of the lead agency based
on the report be supported by substantial evidence in the administrative record. Overall, CEQA requires
that the analysis compare baseline conditions--that is, the physical conditions at the time the analysis

7

is performed--to the conditions expected as a result of the proposed project.
32.

The PER fails to provide adequate identification and analysis of the significant adverse

environmental impacts of the Project, including but not limited to the following: (i) water supply and
quality; (ii) air quality; (iii) biological impacts, (iv) public services/utilities; and (v) cumulative impacts.
Further, neither the analysis of impacts in the PEIR nor Defendants'/Respondents' certification of the
PEIR in this respect is supported by substantial evidence in the administrative record.
33.

Additionally and alternatively, the PEIR fails to provide adequate identification and

analysis of a reasonable range of alternatives to the Project. Further, neither the analysis of alternatives
in the PEIR nor Defendants'/Respondents' certification of the PEIR in this respect is supported by
substantial evidence in the administrative record.
34.

Additionally and alternatively, the PEIR fails to provide adequate identification and

analysis of measures to mitigate the Project's significant adverse environmental impacts and fails to
eliminate or substantially reduce all such impacts. Further, neither the analysis of mitigation measures
in the PER nor Defendants'/Respondents' certification of the PEIR in this respect is supported by
substantial evidence in the administrative record.
35.

Additionally and alternatively, the PER relied on the wrong baseline insofar as it failed

to compare the physical conditions at the time the analysis of the Project was performed to the
conditions expected as a result of the Project.
36.

As a result ofDefendants'/Respondents'violations ofCEQA, Plaintiffs/Petitioners have

been harmed in that they, other members of the public, and the decision-makers who approved the
Project were not fully informed about the impacts of, mitigation measures for, and alternatives to the
Project prior to its approval.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 7

 THIRD CAUSE OF ACTION:
Failure to Make Adequate Written Findings Regarding Project's Significant Impacts
(Against All Defendants/Respondents and Real Parties in Interest)
37.

Paragraphs 1 through 36 are fully incorporated into this paragraph.

38.

CEQA requires every lead agency to identify all adverse environmental impacts of a

proposed project that will be significant and determine whether such impacts can be avoided or
6

mitigated. With respect to any such impacts that cannot feasibly be avoided or mitigated, the lead

7

agency must make at least one written finding that there are specific overriding economic, legal, social,
technological, or other benefits of the proposed project that outweigh the impacts.
39.

Defendants/Respondents approved theProjectbased ononeormorewritten findings that

there exist considerations outweighing the Project's significant adverse environmental impacts, but
there is not substantial evidence in the administrative record to support all such findings. Additionally
and alternatively, Defendants/Respondents approved the Project based on one or more non-written
findings that such considerations exist.
40.

Defendants/Respondents also failed to make all required written findings regarding the

Project's impacts.

41.

As a result ofDefendants'/Respondents' violations of CEQA, Plaintiffs/Petitioners have

been harmed in that they, their members, and other members of the public will have to endure
significant, avoidable, unmitigated adverse environmental impacts without there being any (or there
being insufficient) benefits to outweigh such impacts.
FOURTH CAUSE OF ACTION:
Failure to Respond Adequately to Comments on Environmental Impact Report
(Against All Defendants/Respondents and Real Parties in Interest)
42.

Paragraphs 1 through 41 are fully incorporated into this paragraph.

43.

CEQA requires every lead agency to provide a good-faith, reasoned analysis in response

to comments received on a draft environmental impact report, to address recommendations and
objections in detail, and to explain why specific comments and suggestions were not accepted.
44.

Plaintiffs/Petitioners and others commented on, made recommendations about, and

objected to the Project and the PEIR throughout the process leading up to Defendants'/Respondents'
certification of the PEIR and approval of the Project.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 8

 1

45.

Defendants/Respondents

failed

to

respond

adequately to the comments,

2

recommendations, and objections made by Plaintiffs/Petitioners and others with regard to the Project,

3

the sufficiency of the PEIR, and the overall process for considering whether the Project should be
approved. Defendants/Respondents also failed to provide written responses to public agencies on
comments made by them with respect to the PEIR at least ten days prior to certification of the EIR.
46.

As a result ofDefendants'/Respondents'violationsofCEQA,Plaintiffs/Petitionershave

been harmed in that they, their members, other members of the public, and the decision-makers who
approved the Project were not fully informed about the impacts of the Project prior to the PEIR's
certification and about Defendants'/Respondents' reasons for rejecting the various comments,
recommendations, and objections.
FIFTH COUNT:
Failure to Provide Adequate Notice of Recirculated Environmental Impact Report
(Against All Defendants/Respondents and Real Parties in Interest)
47.

Paragraphs 1 through 46 are fully incorporated into this paragraph.

48.

When a draft environmental impact report is submitted to the State Clearinghouse for

review, the public-review period must be at least 45 days. The posting of notice triggers the start of the
public-review period.
49.

The PEIR was submitted to the State Clearinghouse for review.

50.

Notice of the availability of the PEIR for public review was posted at the San Diego

County Clerk's Office on June 15, 2011, for a public-review period ending on July 29, 2011. A true
and correct copy of the posted notice is attached hereto as Exhibit "C." Based on the date of posting,
the public-review period was 44 days.
51.

Plaintiffs/Petitioners, their members, and other members of the public have been harmed

as a result ofDefendants'/Respondents' violations of CEQA because they have been denied the benefits
and protections provided by compliance with CEQA. By way of example and without limitation,
Plaintiffs/Petitioners, their members, other members of the public, and the decision-makers who
approved the Project were not fully informed about the impacts of, mitigation measures for, and
alternatives to the Project prior to its approval.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 9

 SIXTH COUNT:

Illegal Consideration of Recircul
ated Environmental Impact Report
(Against All Defendants/Respondents and Real Parties in Interest)
52.

Paragraphs 1 through 51 are fully incorporated into this paragraph.

53.

SDMC Section 113.0103 defines "environmental determination" to mean "a decision

by any non-elected City decision maker, to certify an environmental impact report, adopt a negative
declaration or mitigated negative declaration, or to determine that a project is not subject to the
California Environmental Quality Act (CEQA), under State CEQA Guidelines section 15061(b)(2) or
(3) „
54.

SDMC Section 112.0520(d) provides as follows: "The City Council shall consider the

appeal [of an environmental determination] and shall, by a majority vote: (1) Deny the appeal, approve
the environmental determination and adopt the CEQA findings and statement of overriding
considerations of the previous decision-maker, where appropriate; or (2) Grant the appeal and set aside
the environmental determination, in accordance with Section 112.0520(e)." Neither Section 112.0520
nor any other provision in the SDMC authorizes the city council to consider at an administrative-appeal
hearing an environmental determination that has not been considered by a non-elected decision-maker
and appealed to the city council with the single exception of matters within the city council's original
approval jurisdiction; none of the permits or other decisions being challenged in this proceeding falls
within the city council's original approval jurisdiction.
55.

The decision by Defendants'/Respondents' planning commission to certify the original

PEIR and issue the original associated permits was appealed to the city council. The only PEIR in
existence at the time the appeal was filed was the original PEIR; the Recirculated PEIR did not exist
at that time and thus did not constitute an "environmental determination" under SDMC Section
112.0520(d). In ruling on the appeal, however, the city council considered the adequacy of the
Recirculated PEIR and did not consider the adequacy of the original PER. Defendants'/Respondents'
city council therefore acted in excess of its legal authority when it ruled on the adequacy of the
Recirculated PEIR and approved the associated revised permits.
56.

Furthermore, Defendants'/Respondents' planning commission never considered the

adequacy of the Recirculated PEIR or the associated revised permits. Under SDMC Section 126.0707,
the city council has no jurisdiction to issue a coastal development permit in the first instance; and under

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 10

 SDMC Section 126.0503(a)-(b), the city council has no jurisdiction to issue a site development permit
in the first instance. The revised permits should have been considered and approved in the first instance
by the planning commission; having been approved by the city council, they are null and void.
57.
5

CEQA requires that appeals ofenviromnental determinations be processed in accordance

with the lead agency's own administrative-appeal procedures if they exist. Defendants/Respondents
therefore violated CEQA when they failed to follow their own appellate procedures and allowed the city
council to hold an appeal hearing on the Recirculated PEIR instead of the original PEIR that was the
subject of the appeal.
58.

Plaintiffs/Petitioners, their members, and other members of the public have been harmed

as a result of Defendants'/Respondents' violations of CEQA and the SDMC because they have been
denied the benefits and protections provided by compliance with CEQA and the SDMC. By way of
example and not limitation, Plaintiffs/Petitioners, their members, other members of the public, and the
decision-makers who approved the Project did not receive the procedural and substantive benefits of
having the Recirculated PEIR and the revised coastal development permit and site development permit
considered by the planning commission and then (only if necessary on appeal) by the city council.
Prayer
FOR ALL THESE REASONS, Petitioner respectfully prays for the following relief against
Respondents and Real Parties in Interest (and any and all other parties who may oppose Petitioner in
this proceeding):

A.

Ajudgment determining or declaring that Defendants/Respondents failed to fullycomply

with CEQA, the California Coastal Act, and/or the SDMC as they relate to the Project and that the
PEIR's certification was illegal in at least some respect, rendering the PEIR null and void;
B.

Ajudgment determining or declaring that Defendants/Respondents failed to fully comply

with CEQA, the California Coastal Act, and/or the SDMC as they relate to the Project and that its
approval (including all associated entitlements) was illegal in at least some respect, rendering the
approval null and void;
C.

A judgment determining or declaring that Defendants/Respondents must prepare an

environmental impact report and certify it fully in accordance with CEQA and the SDMC before final
approval of the Project may be granted;

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page I I

 I

D.

Injunctive relief prohibiting Defendants/Respondents and Real Parties in Interest (and

2

any and all persons acting at the request of, in concert with, or for the benefit of one or more of them)

3

from taking any action on any aspect of, in furtherance of, or otherwise based on the Project unless and

4

until Defendants/Respondents comply with all applicable provisions of CEQA, the California Coastal

5

Act, and/or the SDMC, as determined by the Court;

6
7
8

9

E.

Any and all other relief that may be authorized by CEQA, the California Coastal Act,

and/or the SDMC but is not explicitly or specifically requested elsewhere in this Prayer.
F.

All legal fees and other expenses incurred in connection with this proceeding, including

but not limited to reasonable attorney fees as authorized by the Code of Civil Procedure; and

10

G.

11

Date: November 22, 2011.

Any and all further relief that this Court may deem appropriate.
Respectfully submitted,

12

BRIGGS LAW CORPORATION
COAST LAW GROUP, LL P

13
By:
Me cae a M. a en
Attorneys for Plaintiffs and Petitioners San Diegans for
Open Government and Coastal Environmental Rights
Foundation

23
24
25
26
27
28

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC.

Page 12

 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION
FOR WRIT OF MANDATE UNDER THE SAN DIEGO MUNICIPAL CODE,
CALIFORNIA ENVIRONMENTAL QUALITY ACT AND OTHER LAWS

Exhibit "A"

 BRIGGS LAW CORPORATION
Jn.Gnflmprrr 0974V
99 East C'S'dre4 Soto -flf
Zl,farr,< C#.91716

San 9411fo 09uu1
114Aforma Omderarrl, SYdte 107
San Vigo, CA 92110

gekplrone.• 909349.7115
0acnmrtev 909.909-7121

'le !e p b o n G• 6/9 4 97.00 21
Eaannua.• 619-J1J-6410

ace F46X
0 1J9J.08

Pfearerripondta•JrdmrdEmpirr afire

21 November 2011

1

Via Facsimile Only to 619-533-4045

Elizabeth Maland, City Clerk
City of San Diego
202 "C" Street, 2nd Floor
San Diego, CA 92101
Re:

Notice of Commencement of Action

Dear City Clerk:
I represent San Diegans for Open Government and am sending this Notice of
Commencement of Action on my client's behalf.
Please be advised that an action is to be commenced by my client in San Diego County
Superior Court against your agency. The action will challenge your agency's approval ofthe project
that was the subject of Item-200 on the City Council's October 24, 2011 agenda (Appeal of the
Master Storm Water System Maintenance Program), on the grounds that the approval violated the
California Environmental Quality Act (PUS. RES. CODE § 21000 et seq.). The action may also
challenge your agency's approval of the project based on one or more violations of other laws.
If you have any questions, please feel free to contact me.
Sincerely,

Mekaela M. Gladden

rHt yoedr..Me Emrl• 6fedime,

we, Regvk

 BRIGGS LAW CORPORATION
Inland Empire Office:
99 East °C" Sireeb Suite I11
Upland, CA 91786

San Diego Office:
814 Moreno Blvd., Suite 107
San Diego, CA 92110
Telephone: 619-497-0021
Facsimile: 619-575-6410

Telephone: 909-949-7115
Facsimile: 909-949-7121

FACSIMILE COVER SHEET
Recipient: San Diego City Clerk
Recipient's fax number: 619-533-4045
Date: November 21, 2011

Total Pages (including cover sheet): 2
Sender: ValerieMosqueda

Sender's fax number:

3 619-515-6410

_ 909-949-7121

Message: Please see attached.

Original Document to Follow? _ Yes

No

CONFIDENTIALITY
The document accompanying this facsimile transmission contains information that may be either
confidential, legally privileged, or both. The information is intended only for the use of the recipient(s)
named on this cover sheet. If not done by or at the direction of the recipient(s), disclosure, copying,
distribution, or reliance on any of the contents of this transmission is strictly prohibited. If you have
received this facsimile transmission in error, please notify us immediately by telephone so that we can
arrange for its return at no cost to you.
:Ar Good io the Curt fit Rcdua, RPu.v. Treyrk

0

 TRANSMISSION VERIFICATION REPORT
TIME : 11/21/2011 13:53
NAME
FAX
TEL
SER.# : 000M3J198110

DATE, TIME
FAX NO./NAME
DURATION
PAGE(S)

11/21

13:53

16195334045

00:00:21
02
OK
STANDARD
ECM

RESULT
MODE

BRIGGS LAW CORPORATION
Intend ,Empire Office:
99 East "C"Street, Suite III

San Diego Ofce:

814 Morena Blvd., Suite 107
San Diego, CA 92110

Upland, CA 91786
'+ Telephone: 909-949-7115
Facsimile: 909-949-7121

Telephone: 619-497-0021
Facsimile: 619-S1 S-6410

FACSIMILE COVER SHEET
Recipient: San Diego city clerk

Recipient's fax number: 619-533-4045
Date: November 21, 2011

Total Pages (including cover sheet): 2
Sender: Valerie Mosqueda

Sender's fax number:

3 619-515-6410

Message: Please see attached.

909-949-7121

 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION
FOR WRIT OF MANDATE UNDER THE SAN DIEGO MUNICIPAL CODE,
CALIFORNIA ENVIRONMENTAL QUALITY ACT AND OTHER LAWS

Exhibit "B"

8

 1
2

COAST LAW GROUP, LLP
MARCO A. GONZALEZ (SBN 190832)
LIVIA BORAK (SBN 259434)
1140 South Coast Highway 101
Encinitas, CA 92024
Ph: (760) 942-8505
Fx: (760) 942-8515
email: marco@coastlawgroup.com

Attorneys for Petitioner,
COASTAL ENVIRONMENTAL RIGHTS FOUNDATION

SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, CENTRAL DIVISION

COASTAL ENVIRONMENTAL RIGHTS
FOUNDATION, INC., a California non-profit
public benefit corporation;

)

Case No.

Petitioner,

)

v.

)

NOTICE OF COMMENCEMENT OF
ACTION PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL
QUALITY ACT

CITY OF SAN DIEGO, a California public
agency;

[Pub Res. Code § 21167.5]

Respondent.

NOTICE OF COMMENCEMENT OF ACTION - CEQA

 TO RESPONDENT CITY OF SAN DIEGO:
Please take notice, on or before November 28, 2011, Coastal Environmental Rights Foundation
(CERF) intends to commence an action seeking a writ of mandamus, declaratory review, and injunctive
4

relief to overturn, set aside, void, and annul the City of San Diego (City)'s October 24, 2011 action to:

5

(1) approve the Master Storm Water System Maintenance Program (MSWSMP); (2) approve permits

6

(including a Coastal Development Permit and Site Development Permit) for the MSWSMP; and (3)
certify the Program Environmental Impact Report (PEIR) for the MSWSMP. This action will be based
on the grounds that the City's approval of the MSWSMP, associated permits, and certification of the
PEIR was in violation of the California Environmental Quality Act (CEQA) (Public Resources Code
Section 21000 et seq), the California Coastal Act, the City's Local Coastal Plans (Public Resources
Code Section 30000 et seq), and the City's Municipal Code.
CERF intends to seek attorneys' fees pursuant to C.C.P 1021.5.

vAiL'L: iVovemoer LL, /V11

LUA 1 LAW ViCVVY LL

ll^ )6^v

illla

Marco A. Gonzalez

Attorney for Petitioner,

COASTAL ENVIRONMENTAL RIGHTS
FOUNDATION

1
NOTICE OF COMMENCEMENT OF ACTION - CEQA

 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION
FOR WRIT OF MANDATE UNDER THE SAN DIEGO MUNICIPAL CODE,
CALIFORNIA ENVIRONMENTAL QUALITY ACT AND OTHER LAWS

Exhibit "C"

 •ILED Itl THE OFFICE OF THE COUNTY CLERI(r

San Diego County on _
, fl4 t
_JUN
Posted
1 5 nt11 Removed
Returned to kWgim
Deputy

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M-^
HE CITY OF SAN DIEGO

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Enx910 arena uryl^ Rrc d r ®tk E

JUN I%)LuI

VELOPMENT SERVICES DEPARTMENT
BY_
I
Date of Notice: JUNE 14, 2011
P
NOTICE OF AVAILABILITY FOR A
RECIRCULATED DRAFT PROGRAM ENVIRONMENTAL IMPACT REPORT
INTERNAL ORDER NUMBER: 21000287

iY

The City of San Diego Entitlements Division has prepared a Recirculated draft Program Environmental Impact Report (PEIR)
for the following project in accordance with Section 15088.5(a) of the State CEQA Guidelines which requires that an EIR be
recirculated for an additional public review when significant new information is added to the EIR after public notice is given
of the availability of the draft Elk for public review, but before certification. Information, resulting in the need to recirculate
an EIR can include changes in the project or environmental setting as well as additional data or other information. This
Recirculated draft PEIR is consistent with the requirements of Section 15088.5(a) of the CEQA Guidelines.
This Recirculated draft PEER addresses modifications to the Master Storm Water System Maintenance Program, Master. Program (Master Program) which were made subsequent to preparation of the previous Final PEIR, dated March 17, 2010 and
includes additional information that has become available since public review of the original PEAL
In accordance with CEQA Section 15088.5(f)(1), the City is requiring reviewers to submit new comments on the Recirculated
PEIR. As the comments and associated responses to the original PER are included in Appendix A.2, the Final Recirculated
PEIR will only Include responses to comments submitted during the public review period for the Recirculated PEIR.
Your comments most be received by JULY29, 2011 to be included in the final document considered by the decisionmaking authorities. Please send your written comments to the following address: Myra Herrmann, Environmental
Planner, City of San Diego Development Services Center, 1222 First Avenue, MS 501, San Diego, CA 92101 or e-mail
your comments to DSDEAS(asandieeo.eov with the Project Number in the subject line.
General Project Information:
•
•
•

Project: MASTER STORM WATER SYSTEM MAINTENANCE PROGRAM (MSWSMP)
Project No. 42891, SCH No. 2004101032
Community Plan Area: CITYWIDE
Council District: ALL COUNCIL DISTRICrs

Applicant: Cityof $an Diego, Transportation &.Storm Water Department, Storm Water Division
Subject: MASTER SITE DEVELOPMENT (SDP) and COASTAL DEVELOPMENT PERMIT (CDP) for the long-term
maintenance of storm water facilities maintained by the Storm Water Division (S WD) of the City of San Diego's
Transportation and Storm Water Department (T&SWD). The storm water facilities include a series of natural and/or
constructed drainage channels. The Master Program identifies the maintenance activities anticipated to be carried out for each
storm water facility. The Master Program also establishes a series of protocols to be carried out during maintenance activities
that are intended to minimize impacts related to soil and erosion, water quality, and wildlife disruption.
On an annual basis, the SWD would identify specific maintenance activities to be undertaken the next fiscal year which would
then be subject to a Substantial Conformance Review (SCR) process to allow maintenance activities to proceed under the
terms of the master permits. The SCR package would include an Individual Maintenance Plan (IMP); Individual Biological
Assessment (1EA), Iadividual.Historical Assessment (IM), Individual Hydrologic and Hydraulic Assessment (IHHA),
Individual Water Quality Assessment (IWQA), and Individual Noise Assessment (INA) prepared for each storm water facility
prior to maintenance to evaluate the current capacity and the condition and extent of sensitive resources within the facility,
and maintenance activity details such as method(s) and equipment to be used, maintenance requirements, and schedule.

Fenn Revised IN4

 The SCR package would be evaluated by designated City departments as well as state and federal agencies to confirm that the
proposed maintenance activities would be consistent with the Master Program, and that environmental impacts would be
mitigated pursuant to the Mitigation Monitoring and Reporting Program. Following the SCR process, the specific
maintenance activities would be authorized through one of three of the City's approval processes. If the maintenance activity
is fully consistent with the Master Program and PEIR, Process One would apply. If a consistent activity would occur in the
Coastal Zone, Process Two would apply. If the activity is not included in the Master Program and PEIR, Process Four would
apply..
Recommended Finding: The Draft PEIR concludes that the project would result in significant, but mitigated impacts to
Historical and Paleontological Resources (Direct), Biological Resources (Direct/Indirect), Land Use (MSCP/MHPA)
(Direct) and Water Quality (Direct). Cumulative impacts related to the following issues would be significant and
unmitigated: Aesthetics/Neighborhood Character, Air Quality, Greenhouse Gases, Biological Resources, Historical and
Paleontological Resources, and Solid Waste Disposal.
Availability in Alternative Format: To request this Notice, the Recirculated Program Environmental Impact Report
(PEIR), Initial Study, and/or supporting documents in alternative format call the Development Services Department at 619446-5460 or (800) 735-2929 (TEXT TELEPHONE).

1

Additional Information: For environmental review information, contact Myra Herrmann at (619) 446-5372. The
recirculated draft PEIR has been posted on the City's website at tt ://www.sandieao.gov/stormwater/. Although not part of
the CEQA process, informational meetings will be held by the Storm Water Division. See the Think Blue website for more '
details, The draft PEIR, Initial Study, and supporting documents may be reviewed or purchased for the cost of reproduction, at
the Fifth floor of the Development Services Center. For information regarding public hearings on this project; contact Project
Manager Patricia Grabski at (619) 446-5277. This notice was published in the SAN DIEGO DAILY TRANSCRIPT, placed
on the City of San Diego web-site (lip://www sandiego mov/city-clerktofficialdocs/notices/index shtml) and distributed on
JUNE 14, 2011.
Cecilia Gallardo, AICP
Assistant Deputy Director
Development Services Department

 VERIFICATION
STATE OF CALIFORNIA, COUNTY OF SAN DIEGO

q

I have read the foregoing VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
and know its contents.
PETITION FOR WRIT OF MANDATE
x CHECK APPLICABLE PARAGRAPH
q

1 am a party to this action. `The. matters stated in the foregoing document are true of my own knowledge except as to

those matter: which arc stated on information and belief, and as to those matters I believe them to be true.
q
x
of
I am ® an Officer q a partner
q a
San Diegans for Open Government
a party to this action, andam authorized to make this verification for and on its behalf, and I make this verification for that
reason. ® I am informed and believe and on that ground allege that the matters stated in the foregoing document are
true. q The matters stated in, the foitgoing document am true of my own knowledge except as to those matters which
are stated on information and belief, and as to those matters I believe them to be true.
q
I am one of the attorneys for
a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make
this verification for and on behalf of that party for that reason. 1 am informed and believe and on that ground allege that the
matters stated in the foregoing document are true.
, 20 1 1, at San Diego
, California.
Executed on November 23
I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct.
Ian Trowbridge
Type or Print Name

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF
I am employed in the county of
am over the age of 18 and not a party to the within action; my business address is,
On

, State of California.

, 20 _, I served the foregoing document described as

in this action
on
by placing the true copies thereof enclosed in scaled envelopes addressed as stated on the attached mailing list:

by placing q the original q atrue copy thereof enclosed in sealed envelopes addressed as follows:

, California.
The envelope was mailed with postage then= fully prepaid.
q As follows I am "readily familiar"with the firm's practice of collection and processing correspondence for mailing.
Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at
California in the ordinary course of business. I am aware that on motion of the
party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit
, California.
, at
Executed on
, 20.
'^(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee.
q
, California.
20
at
Executed on
I declare under penalty of perjury under the laws of the State of California that the above is true and corect, 1
q (State)
q (Federal) declare that I am employed in the office of a member of the bar of this court at whose direction the service was
made.
" I deposited such envelope in the mail at
IT L

Type or Print Name

Signature
(By MNL SIGNATURE MUST BE OF PERSON DEPO60ING ENVELOPE IN
MNL SLOT. BOX OR BAG)
"(FOR PEFSONAL sERVIce SIONATURE MUST BE TNAT OF MESSENGER)

OO1 OAmMtsa LOONNOL tic

 I
2
3
4
5
6
7
8
9

BRIGGS LAW CORPORATION [FILE: 1593.08]
Cory J. Briggs (State Bar no. 176284)
E p
F I L
cory@briggslawcorp.com
Mekaela M. Gladden (State Bar no. 253673)
(Bark of Yta Supsrior Cowt
mekaela@briggslawcorp.com
99 East "C" Street, Suite 111
NOV 2 3 2011
Upland, CA 91786
Telephone: 909-949-7115
Fax: 909-949-7121

2011 NOV 23 P1H 2_:51

COAST LAW GROUP, LLC
Marco A. Gonzalez (State Bar no. 190832)
marco@coastlawgroup. com
Livia Borak (State Bar no. 259434)
livia@coastlawgroup.com
1 140 South Coast Highway 101
Encinitas, CA 92024
Telephone: 760-942-8505
Fax: 760-942-8515
Attorneys for Plaintiffs/Petitioners San Diegans for Open Government
and Coastal Environmental Rights Foundation

ORIGINAL

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO--CENTRAL DIVISION

16
17
SAN DIEGANS FOR OPEN GOVERNMENT ) CASE NO.
and COASTAL ENVIRONMENTAL RIGHTS
FOUNDATION;
Petitioner,
vs.

)

37-2011-00101571-CU-TT-CTL

NOTICE OF PETITIONER'S ELECTION
TO PREPARE ADMINISTRATIVE
RECORD

)

[Pub. Res. Code § 21167.6]
CITY OF SAN DIEGO and DOES I through 100,
Respondents;
DOES 101 through 1,000,
Real Parties in Interest.

)
)
)

 I

TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS:

2

PLEASE TAKE NOTICE that Petitioners SAN DIEGANS FOR OPEN GOVERNMENT and

3

COASTAL ENVIRONMENTAL RIGHTS FOUNDATION elects, pursuant to Section 21167.6(b)(2)

4

of the Public Resources Code, to prepare the administrative record for the project that is the subject of

5

this proceeding. Petitioner therefore requests that Respondents notify Petitioner's attorneys of record

6

in writing when the items constituting the administrative record are available for inspection and

7

photocopying. To the extent necessary to facilitate Respondents' prompt response to this notice,

8

Petitioner's request should be deemed a request to inspect public records under the California Public

9

Records Act.

10

Petitioner reserves the right to request that Respondents prepare any portion of the record that

11

is not otherwise reasonably available except from one or more of Respondents. However, nothing in

12

this notice shall be construed as Petitioner's express or implied agreement to make any payment to

13

Respondents for their assembly of the items that constitute the administrative record or for any other

14

expense incurred by Respondents in providing Petitioner with access to the items constituting the

15

record. In the absence of Petitioner's express written acknowledgment to the contrary, this notice asks

16

Respondents to do nothing more than provide access to the items constituting the record.

Respectfully submitted,

Date: November 23, 2011.

By:
Mekaela M. Gladden
BRIGGS LAW CORPORATION
Attorneys for Plaintiffs/Petitioners San Diegans for Open
Government and Coastal Environmental Rights
Foundation

26
27
28

NOTICE OF PETITIONER'S ELECTION TO PREPARE ADMINISTRATIVE RECORD

Page 2

  


'Case -WVG Document1

7 ORIGINAL

Cory I. Briggs (State Bar no. 176284)
Mekaela M. Gladden (State Bar no. 253673)
99 East Street, Suite 111

Upland, CA 91786

Telephone: 909-949?7115 -

FacSImile: 909-949-7121

 

LA CUNA DE AZTLAN SACRED SITES
PROTECTION CIRCLE ADVISORY
CALIFORNIANS FOR
RENEWABLE ALFREDO
ACOSTA PHILLIP, 
PATRICIA RONALD VAN
and CATHERINE OHRIN-GREIPP,

Plaintiffs, . 

VS.

UNITED STATES DEPARTMENT OF THE
KEN SALAZAR, in the of?cial
capacity of Secretary of the United States
Department of the' Interior; UNITED STATES
BUREAU OF LAND 
ROBERT ABBEY, in the official capacity of
Director of the United States Bureau of Land
Management; TERI RAML, in the official;
capaclty of District Manager of the California
Desert District of the United States Bureau of)
Land Management; MARGARET GOODRO, in 
the official capacity of Field Manager of the El
Centro Field Office ofthe United States Bureau
of Land Management; JOHN KALISH, in the
official capacity Of Field Manager of the Palm 1




 

Spring South Coast Field Office of the United
States Bureau of Land Management; RUSTY
LEE, in the official ca acity of Field Manager
ofthe Needles Field 0 fice ofthe United States
Bureau of Land Management; and ROXIE
TROST, in the official ca acity of Field
Manager of the BarstowFie Office of the
United States Bureau of Land Management,

Defendants.

 

 

BRIGGS LAW CORPORATION 1190.03]

Attorneys for Plaintiffs La Cuna de Aztlan SacredSit?s
Protection Circle Advisory Committee, CAlifornianS for
Renewable Energy, Alfredo Acosta Figueroa, Phillip Smith, 
Patricia Figueroa, Ronald Van Fleet, and Catherine Ohrin-Greipp

Filed 12/27/10 Page 1 of 68


 ED
10 015027 A1111: 10~

1.4.8. DISTRICT CI
DISTRICT OF 

WENT 



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

WVG

CASE NO.

COMPLAINT FOR DECLARATORY,
INJUNCTIVE, AND MANDAMUS
RELIEF UNDER THE
ADMINISTRATIVE PROCEDURES
ACT, THE NATIONAL HISTORIC
PRESERVATION . ACT, THE
NATIONAL, ENVIRONMENTAL
POLICY ACT, THE FEDERAL LAND 
POLICY AND MANAGEMENT ACT,
AND THE NATIVE AMERICAN
GRAVES PROTECTION AND
REPATRIATION ACT

00V 266.1; 

 

h,

 

 



IxCase -WVG- Document 1 - Filed 12/27/10 Page 2 of 68

Plaintiffs LA CUNA DE SACRED SITES PROTECTION CIRCLE
ADVISORY COMMITTEE, CALIFORNIANS FOR RENEWABLE ENERGY, ALFREDO
ACOSTA FIGUEROA, PHILLIP SMITH, PATRICIA FIGUEROA, RONALD VAN FLEET,
and CATHERINE OHRIN-GREIPP allege as follows: 

Parties 

1. Plaintiff La Cuna de Aztlan'Sacred Sites Protection Circle Advisory Committee 
is a non-profit, 501 organization and a party to that'certainAmendmentNo.
I to Memorandum ofUnderstanding Between United States Department ofthe Interior Bureau
ofLand Management and the Southern Low Desert Resource Conservation and Development
Council. LA CUNA is comprised of 15 indigenous and culturally aware individuals who are
dedicated to physically protecting the Giant Intaglios, other and several
hundred sacred sites that are located along the Colorado River from Needles, California, to
Yuma, Arizona. (A true and correct'copy of Amendment No. 1 is attached to this pleading as
Exhibit 

2. Plaintiff CAlifornians for Renewable Energy is a non?profit organization formed
to promote public education concerning the responsible deveIOpment of renewable energy and
in the preservation of and respect for Native American culture.

3. Plaintiffs Alfredo Acosta Figueroa, Phillip Smith, Patricia Figueroa, Ronald Van
Fleet. and Catherine Ohrin-Greipp are individuals who'reside in the areas affecting by the
actions challenged in this lawsuit and have an interest in the responsible developmentof .
renewable energy and in the preservation of and respect for Native American culture. I

4. The United States Department of the Interior and the United States Bureau of
Land Management are agencies or instrumentalities ofthe United States.

5. A The following Defendants arebeing sued in their official capacities: Ken Salazar,
in the of?cial capacity of Secretary of the United States Department of the Interior; Robert
Abbey, in the official capacity of Director of the United States Bureau of Land Management;
Teri Ram], in the official capacity of District Manager ofthe California Desert District of the

United States Bureau of Land Management; Margaret Goodro,'in the official capacity of Field

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

Rage 2

 

 

 

 



u?I a?d o?I in.? u?Case -WVG Document 1 Filed 12/27/10 Page?3 of 68



Manager ofthe El Centro Field Office ofthe-United States Bureau of Land Management; John
Kalish, in the official capacity of Field Manager of the Palm Spring South Coast Field Office
ofthe United States Bureau of Land Management; Rusty Lee, in the official capacity of Field
Manager of theNeedles Field Office ofthe United States Bureau of Land Management; and
Roxie Trost, in the official capacity ofField Manager ofthe Barstow Field Office ofthe United
States Bureau of Land Management. I
Background Information

6. Generally speaking, this lawsuit challenges Defendants?iactions in connection
with six solar-electricity generation projects taking place on federal (public) land: namely,
Ivanpah Solar Electric Generating System Project andAssociatedAmendment to the California
Desert Conservation Area Plan (?Ivanpah Project?), approximately 3,472 acres in size; Genesis
Solar Energy Project and Amendment to the California Desert Conservation Area Plan
(?Genesis Project?), approximately 1,950 acres in size; Imperial Valley Solar Project and
Amendment to the California Desert Conservation Area Land Use ManagementPlan (?Imperial
Project?), approximately 6,360 acres in size; Chevron Energy Solutions Lucerne Valley Solar
Project andAmendment to the California Desert Conservation Area Plan (?CheVron Project?),
approximately 422 acres in size; Calico Solar Project and Amendment to the California Desert
Conservation Area Land Use Management Plan (?Calico Project?), approximately 4,613 acres
in size; and Solar Power Project and Amendment to the California Desert Conservation
Area Plan Project?), approximately 7,025 acres in size. The records of decision

adopted. by and the approvals given by Defendants for each of the challenged projects

(collectively, ?Projects?) are as follows:

A. For the Ivanpah Project, Defendants have (among other things) approved
an amendment to the California Desert Conservation Area Plan Plan?) to include the
Ivanpah Project as'aln approved power generation location under the Energy Production and

Utility Corridors Element ofthe CDCA Plan; and granted four right-of?way authorizations]

 

The-right-of-way authorizations are for the Construction Logistics sitel(CACA-49502) to Solar
Partners 1, II, and for the Ivanpah 1 site (GAGA-49504) to Solar Partners 11, for
Ivanpah 2 site (CACA-48668) to Solar Partners 1, and for Ivanpah 3 site (GAGA-49503) to Solar

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

Page 3

 

 

 



I?Case -WVG Document 1 Filed 12/27/10 Page 4 of ?68.

B. For the Genesis Project, Defendants have (among other things) approved
an amendment to_the CDCA Plan to include the Genesis Project as an approved power
generation location under the Energy Production and UtilityCorridors Element ofthe CDCA 
Plan; and granted a right?of?way authorization.

C. i For the Imperial Project, Defendants have (among other things) approved
an. amendment to the CDCA Plan to include the Imperial Project as an approved power
generation location under the Energy Production and Utility Corridors Element ofthe CDCA
Plan; and granted a right-of-way authorization.

D. For the Chevron Project, Defendants have(among other things) approved

an amendment to the CDCA Plan to include the Chevron Project as an approved power

generation location under the Energy Production and Utility Corridors Element ofthe CDCA
Plan; and granted a right-of-way, authorization.

E. For the Calico Project, Defendants have (among other things) approved an
amendment to the CDCA Plan to include the Calico Project as an approved power generation
location under the Energy Production and Utility Corridors Element of the CDCA Plan; and
granted a right?of?way authorization. I

F. For the Project, Defendants have (among other things) approved an
amendment to the CDCA Plan to include the Project as an approved power generation
loCation under the Energy Production and Utility Corridors Element of the CDCA Plan; and
granted a right-of?way authorization. I I

7. Plaintiffs challenge the Projects on a variety of grounds. By way of example and
not limitation: I
I A. For each of the Projects, Defendants failed to properly engage in the
consultations required for the Project under the National Historic Preservation Act 
16 U.S.C. 470 etseq.
B. i For each ofthe Projects, Defendants failed to conduct an adequate analysis

of the cumulative impacts, failed to prepare a programmatic environmental impact statement,

 

Partners LLC,

Page 4

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

 

 

 

failed to adequately identify and evaluate the signi?cance of the affected cultural environment,

and failed to conduct an adequate analysis of alternatives to the Projects under the National

Environmental Policy 42 U.S.C. 4321 et seq.

C. For the Projects collectively, Defendants failed to prepare a programmatic
environmental impact statement for the broad major federal action contemplated by the Projects,
in violation In a presentation delivered at Defendants? National Land Use Planning
Conference in 2009, Defendants announced publicly that they were in the process ofpreparing
a programmatic statement covering the Projects (and other solar-electricity generation projects).
It turns out, however, that Defendants failed to complete the programmatic statement before
approving the Projects. (A true and correct copy ofthe presentation is attached to this pleading
as Exhibit I
D. For each-ofthe Projects, Defendants violated the Federal Land Policy and
Management Act of 1976 43 1701 etseq., by authorizing solar-electricity
generation activities on lands designated in the CDCA Plan as Class  (Limited Use) lands even
though such-activities are permitted under the CDCA Plan only on Class (Moderate Use) or 
Class I (Intensive Use) lands, and by allowing the permanent impairment ofthe lands affected
by the Projects and allow unnecessary or undue degradation on these lands. 

.E. Defendants? approval of the Projects will result in the intentional
excavation, disposal, or other removal of Native American cultural items (including human
remains) known to be or strongly suspected of being on the Projects? sites, in violation ofthe
Native American Graves Protection and Repatriation Act 25 U.S.C. 3001 et
seq. .

Jurisdiction, Venue, and Exhaustion of Remedies?
8. This Court has jurisdiction over this proceeding pursuant to Sections 1331 and
1361 of Title 28 of the US. Code because this pleading alleges violations of federal law and
seeks to compel Defendants to perform duties owed to Plaintiff, its members, and other
members ofthe public; The Court also hasjurisdiction over this proceeding pursuant to Section -

551 at sea. of Title 5 ofthe US. Code, commonly known as the Administrative Procedure Act

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

PageS

 

 

 






 

 

Case -WVG Document 1 Filed 12/27/10 Page 6 of 68

because the pleading seeks judicial review of actions taken by one or mere agencies
or officers ofthe United States. I i

9. Venue is proper in this Court under Section 139 1 of Title.28 ofthe US. Code,
because Defendants are either officers, employees, or agencies of the United States and/or
(ii) both a substantial part of the events or omissions giving rise to this proceeding were
committed in this judicial district and a substantial part of the property at issue in this
proceeding is located in this judicial district. I I

10. Plaintiffs have satisfied each and every exhaustion;of-remedies requirement that
must be satisfied?in order to maintain this proceeding. Alternatively, no exhaustion-of-remedies
requirement may be applied to Plaintiffs.

1 l. Plaintiffs have no plain, speedy, adequate remedy in the ordinary course of law
since Plaintiffs, their respective members, and other members of the public will suffer
irreparable harm as a result of Defendants' violations of federal law as alleged in this pleading.
Defendants? violations rest on the failure to satisfy a clear, present, ministerial duty to act in
accordance with federal law.

12. Plaintiffs have a beneficial right and interest in Defendants? ful?llment of-all their
legal duties, as alleged in this pleading. I

FIRST CLAIM:
Violation of National Himion Act--Ivanpah Project
(Against All Defendants except Kalish, Goodro, and Trost) 
13. Paragraphs 1 through 12 are fully incorporated into this paragraph.
14. NHPA Section 101(d)(6)(Bj provides as-follows: Properties oftraditional

religious and cultural importance to an Indian tribe or Native Hawaiian organization may be 

determined to be eligible for inclusion on the National Register. (B) Incarrying out its

responsibilities under section 106 ?of this Act, a Federal agency shall consult With any Indian
tribe or Native Hawaiian organization that attaches religious and cultural significance to
properties described in subparagraph NHPA Section 106 provides as follows: ?The head
of any Federal agency having direct or indirectjurisdiction over a proposed Federal or federally

assisted undertaking in any State and the head ofany Federal department or?independent agency

COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC.

Page 6

 

 






 

Case -WVG Document 1- Filed 12/27/10 Page 7 of 68

having authority to license any undertaking shall, prior to the approval ofthe expenditure ofany
Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take
into account the effect ofthe undertaking on any district, site, building, structure, or object that
is included in or eligible for inclusion in the National Register. The head of any 'such?Federal
agency shall afford the Advisory Council on Historic Preservation established under Title II of
this Act a reasonable opportunity to comment with regard to such undertaking.?

15.

Plaintiffs, both separately and collectively, attach religious and cultural

significance to the federal (public) land that will be affected by the Ivanpah Project. This land

- has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently,

- Plaintiffs will be seriously harmed by Defendants? failure to comply with NHPA.

16. Under AmendmentNo. 1 (Exhibit Defendants were required to perform the I
NHPA?prescribed consultations with Plaintiff LA CUNA. Even in the absence ofAmendment
No. 1, Defendants were required to perform the NHPA-prescribed consultations for the benefit
of Plaintiffs (among others). i i I

17. Defendants failed to perform the NHPA-prescribed consultations for the Ivanpah
Project; Their failure in this regard was contrary to NHPA and arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law as required by the APA.

18. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NHPA and the APAI'because they have been
denied the bene?ts and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public,-and the decision-makers who
approved and are carrying out the Ivanpah Project were not fully informed about the traditional
religidus and cultural importance attached by Plaintiffs and Indian tribes to the federal (public)
land that will be affected by the Ivanpah Project.

SECOND CLAIM: I
Violation of National Environmental Policy Act--Ivanpah Project

(Against All'Defendants except Kalish, Goodro, and Trost)
19. Paragraphs 1 through 18 are fully incorporated into this paragraph.

COMPLAINT FOR AND MANDAMUS RELIEF ETC.

Page 7

 

 

 

 

cooqmmawm

Case -WVG Document 1 Filed 12/27/10 Page 8 of 68

20. NEPA requires every federal agency to prepare an environmental impact-
statement for every major action significantly affecting the quality of the human
environment that the agency proposes to approve or carry out. ?In general, the EIS must
adequately address the proposed action?s environmental impact, (it) any adverse
environmental effects that cannot be?avoided? if the proposed action is implemented, 
alternatives to the proposed action, (iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of long-term productivity, any
irreversible and irretrievable commitments of resources that would be involved in the proposed
action ifimplemented, (vi) mitigation measures for the proposed action, and (vii) cumulative
impacts for the proposed action. 

21. Defendants have not prepared an adequate EIS for the Ivanpah Project even
though it is a major action proposed to be approved and carried out by at least one federal
agency and has the potential to affect the quality ofthe human environment, including but not
limited to the environment in the California Desert Conservation Area.

22. Defendants? failure to prepare an adequate EIS for the Ivanpah Project was
contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law as required by the APA. 

I 23. I Plaintiffs, their reSpective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NEP?rand the APA because they have been
denied the benefits and protections provided by compliance with those law's. By way of
example and without limitation,P1aintiff, its members, the public, and the decision-makers who
approved and are carrying out the Project were not fully informed about the impacts of,
mitigation measures for, and alternatives to the Projectprior to the decision to approve and-carry
out the Project.

THIRD CLAIM:
Violation of National Enmicy Act--Ivanpah Project
(Against All Defendants except Kalish, Goodro, and Trost)
24. Paragraphs 1 through 23 are fully incorporated into this paragraph.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 8

 

 

 



amigo-stun.th




 

Ca?se -WVG Document 1 Filed 12/27/10. Page 9 of 68

25. NEPA (under Kleppe v. Sierra Club, 427 U.S. :390 (1976)) requires the .
environmental consequences of several proposals that will have. cumulative or synergistic
environmental impacts upon a region to be considered together in a programmatic EIS. Section
1502.4(b) of Title 40 of the Code of Federal Regulations provides that federal agencies ?shall
prepare statements on bread actions so that they are relevant to policy and are timed to coincide
with meaningful points in agency planning and decisionmaking.?

26. Each ofthe Projects is a major federal action, and together they constitute broad
action by Defendants.

27. Defendants did not prepare a programmatic EIS for the Projects.

28. With regard to the Ivanpah Project, Defendants? failure to prepare a programmatic
EIS for the Projects was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law as required by the APA.

29. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the benefits and'protections provided by compliance with those laws. By way? of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who -
approved and are carrying out the Project were not fully informed about the programmatic
impacts of, mitigation measures for, and alternatives to the Projects prior to the decision to
approve and carry out the Ivanpah Project.

FOURTH CLAIM: 
Violation of Federal Land my an anagement Act--Ivanpah Project
(Against All Defendants except Kalish, Goodro, and Trust)

30. Paragraphs 1 through 29 are fully incorporated into this paragraph.

31. FLPMA Section 302(b) provides as follows: ?In managing the public lands, the
Secretary shall, subject to this Act and other applicable law and under such terms and conditions
as are consistent with such law, regulate, through easements, permits, leases,_licenses_, published
rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and
development of the public lands, including, but not limited to, long?term leases to permit
individuals to utilize public lands for habitation, cultivation, and the development ofsmall trade

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 9

 

 

00 CYUI b) 




 

 

Case -WVG Document 1 Filed 12/27/10 Page 10 of 68

or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary
may permit Federal departments and agencies to use, occupy, and develop public lands only

through rights-of-way under section 507 ofthis Act, withdrawals under section 204 ofthis Act,

and, where the prOposed use and development are similar or closely related to the programs of

the Secretary for the public lands involved, cooperative agreements under subsection of
section 307 of this Act: Provided further, That nothing in this Act shall be construed as
authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands
or on lands in the National Forest System and adjacent waters or as enlarging or diminishing
the responsibility and authority of the States for management of fish and resident wildlife.
However, the Secretary concerned may designate areas of public land and of lands in the
National Forest System where, and establish periods when, no hunting'or fishing will be
permitted for reasons of public safety, administration, or compliance with provisions of
applicable-law. Except in emergencies, any regulations ofthe Secretary Concerned relating to
hunting and fishing pursuant to this section shall be put into effect. only after consultation with A
the appropriate State fish and game department. Nothing in this Act shall modify or change any

provision of Federal law relating to migratory birds orto endangered or threatened species.

Except as provided in section 314, section 603, and subsection of section 601 ofthis Act and

in the last sentence cfthis paragraph, no provision ofthis section or any other section ofthis Act.
shall in'any way amend the Mining Law of 1872 or impair the rights of any locators or claims

under that Act, including, but not limited to, rights of ingress and egress. In managing the

public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent

unnecessary or undue degradation ofthe lands.? 

32. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe Interior], in
accordance with section 202 ofthis Act, shall prepare and implement a comprehensive, long-
range plan for the management, use, development, and protection ofthe public lands within the
California'Desert Conservation Area. Such plan shall take into account. the principles of
multiple use and sustained yield in providing for resource use and development, including, but i
not limited to, maintenance ofenvironmental quality, rights-of-way, and mineral development.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS ETC. Page 10

 

 

 

00 ON U) 



 

Case -WVG Document 1 Filed 12/27/10 Page 11 of 68

Such plan shall be completed and implementation there-ofinitiated on or before September 30,
1980.?

I .33. FLPMA Section 601(f) provides as follows: ?Subject to valid existing rights,
nothing in this Act shall affect the applicability ofthe United-States mining laws on the public
lands within the california Desert Conservation Area, except that all mining claims located on
public lands within the California Desert Conservation Area shall be subject to such reasonable
regulations as the Secretary may prescribe to effectuate the purposes ofthis section. Any patent

issued on any such mining claim shall recite this limitation and continue to be subject to such

regulations. Such regulations shall provide for such measures as may be reason-able to protect 

the scenic, scientific, and environmental values of the public lands of the California Desert
Conservation Area againstundue impairment, andto assure against pollution ofthe streams and 
waters-within the California Desert Conservation Area." i 

34. Defendants have not compliedwith FLPMA as it relates to the Ivanpah Project
even, though it is located on federal (public) land and is within the California Desert
Conservation Area and subject to the CDCA Plan. I

35. Defendants? failure to comply with the CDCA Plan and take all action necessary
to prevent-unnecessary oriundue degradation of the federal (public) land affected when they
approved the Ivanpah Project wascontrary to FLPMA and arbitrary, capricious, an abuse of
discretion, or otherwise not-in accordance with law as requiredtby the APA.

36. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a resultof Defendants? violations of FLPMA and the APA because they have been
denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, and the .public will have to endure
unnecessary or undue degradation ofthe federal. (public) land affected by the Ivanpah Project
and will lose the?protections-provided for this land by the CDCA Plan. 1

. . I FIFTH CLAIM: I
Violation of Native American Gravm Re atriation Act--Ivanpah Project
(Against AllDefendants except Kalish, .oodro, and Trost)
37. Paragraphs 1 through-V36 are fully incorporated into this paragraph.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. 

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38. Section 3(b) of the NAGPRA provides as follows: ?Native American cultural
items not claimed under subsection ofthis section shall be disposed of in accordance with
regulations promulgated. by the Secretary [of the Interior] in consultation with the review
committee established under section ofthis [Act], Native American groups, representatives
of museums and the scientific community? 

-3 9. Section 3(c) ofthe NAGPRA provides as follows: ?The intentional removal from
or excavation of Native American cultural items from Federal or tribal lands for purposes of
discovery, study, or removal of such items is permitted only if-- I

such items are excavated or removed pursuant to a permit issued
.under section 470cc of Title 16 [ofthe U.S. Code] which shall be consistent with
this [Act]; I 

items are excavated or removed after consultationwith or, in the
case of tribal. lands, consent of the appropriate (if any) Indian tribe or Native
Hawaiian organization; 

the ownership and right of control of. the disposition of such items
shall be. as provided in subsections and ofthis section; and

proof of consultation or consent under paragraph (2) is

shown.? .

40. Defendants? approval of the Ivanpah Project will result in the intentional
excavation, disposal, or other removal of Native American cultural items (including human
remains) known to be or strongly suspected of being on thesite of the Project without
compliance with the conditions necessary for excavation, disposal, or other removal. By way
of example and not limitation, Defendants have not consulted with or obtained the consent of
the Indian tribe whose cultural remains or located on the site ofthe Project.

41. Defendants? failure to consult with and obtain the consent of the appropriate
Indian tribe prior to excavating, disposing of, or otherwise removing Native American cultural

items?(including human remains) known to be or strongly suspected of being on the site of the

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Ivanpah Project was contrary to the NAGPRA and arbitrary, capricious, an abuse ofdiscretion,
or otherwise not in accordance with law as required by the APA.

42. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have
been denied the benefits and protections provided by compliance with those laws. By way. of
example and Without limitation, Plaintiff, its members, and the public (including the appropriate
Indian tribe) will have to endure the excavation, disposal, or other removal ofNative American
cultural items (including human remains) located on the site ofthe Ivanpah Project without the
necessary consultation and consent prior to Defendants? approval ofthe Project. 7 

SIXTH CLAIM:
Violation of National Himion Act--Genesis Project
(Against All Defendants except Lee, Goodro, andTrost)

4'3. - Paragraphs 1 through 42 are fully incorporated into this paragraph.

44. NHPA Section lOl(d)(6)(B) provides as follows: PrOperties of traditional
religious and cultural importance to an Indian tribe or Native Hawaiian organization may be
determined to be eligible for inclusion on the National Register. (B) In ,carrying out its 
responsibilities under section 106 of this Act, a Federal agency shall consult with any Indian
tribe or Native Hawaiian organization that attaches religious and cultural significance to
properties described in subparagraph NHPA Section 106 provides 'as follows: ?The head.
of any Federal agency having direct or indirectjurisdiction over a proposed Federal or federally
assisted undertaking in any State and the head ofany Federal department or independent agency
having authority to license any undertaking shall, prior to the approval ofthe expenditure ofany
Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take
into account the effect ofthe undertaking onany district, site, building, structure, or object that
is included in or eligible for inclusion in the National Register. The head of any'such Federal
agency. shall afford the Advisory Council on Historic Preservation established under TitleII of
this Act a reasonable opportunity to comment with regard to such undertaking.?

45. Plaintiffs, both separately and, collectively, attach religious and cultural
significance to the federal (public) land that will be affected by the Genesis Project. This land

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. - Page 13

 

 

 

OO ON kn 45 U3 

r?d- u?u u?n HA o?n t-d I?n a?n 


 

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has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently,
Plaintiffs will be seriously harmed by Defendants? failure to comply with NHPA.

46. UnderAmendmentNo. 1 (Exhibit-?AU, Defendants were required to perform the
NHPA-prescribed consultations with Plainti?ffLA CUNA. Even in the absence ofAmendment
No. 1, Defendants were required to perform the NHPA-prescribed consultations for the benefit
of Plaintiffs (among others). I I

47. Defendants failed to perform the NHPA-prescribed consultations for the Genesis
Project. Their failure in this regard was contrary to NHPA and arbitrary, capricious, an abuse
ofdiscretion, or otherwise not in accordance with law as required by the APA.

48._ Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendant's? violations of NHPA and the APA because they have been
denied the benefits and protections providedby compliance with those laws, By way of
example and without limitation, Plaintiff, its members, the public, and the decision?makers who
approved and are carrying out the Genesis Project were not fully informed about the traditional
religious and cultural importance attached by Plaintiffs and Indian tribes to the federal (public)
land that will be affected by the Genesis Project. I

SEVENTH CLAIM:
Violation ofNational Environmental Policy Act--Genesis Project
(Against All Defendants except Lee,'Goodro, and Trost)

49. . Paragraphs 1 through 48 are fully incorporated into this paragraph.

50. NEPA requires every federal agency to prepare an environmental impact
statement for every, major action significantly affecting the quality of the human
the agency proposes to approve or carry out. In general, the EIS must
adequately address, the proposed actio?n?s environmental impact, (it) any adverse
environmental effects that cannot be. avoided if the proposed action is implemented, 
alternatives to the?proposed action, (iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of long?term productivity, any

irreversible and irretrievable commitments ofresources that would be involved in the proposed

COMPLAINT FOR DECLARATORY, MANDAMUS RELIEF ETC. Page 14

 

 

 



.45- 

 

I

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action ifimplemented, (vi) mitigation measures for the proposed action, and (vii) cumulative
impacts for the proposed action. A
I 51. Defendants have not prepared an adequate EIS for the Genesis Project even
though it is a major action proposed to be approved and carried out by at least one federal
agency and has the potential to affect the quality ofthe human environment, including but not
limited to the environment in the California Desert Conservation Area.

52. Defendants? failure to prepare an adequate EIS for the Genesis Project was
contrary to NEPA and?arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law as required by the APA.

53. Plaintiffs, their respective members, and other members ofthe public have been

harmed as a result of Defendants? violations of NEPA and the APA because they have been

denied, the benefits and protections provided by compliance with those laws. By way of

example-and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and 'are carrying out the Project wereinot fully informed about the impacts? of,
mitigation measures for, and alternatives to the Project prior to the decision to approve and carry
out the Project.
. EIGHTH CLAIM: .
Violation of NatiOnal Environmental Policy Act--Genesis Project
(Against All Defendants except Lee,xGoodro, and Trost)

54. Paragraphs 1 through 53 are fully incorporated into this paragraph.

55. I NEPA (under Kleppe v. Sierra Club, 427 US. 390 (1976)) requires the
environmental consequences of several proposals that willhave cumulative or synergistic
environmental impacts upon a region to?be considered together in a programmatic EIS. Section
1502.4(b) of Title 40 ofthe Code ofFederal Regulations provides that federal agencies ?shall
prepare statements on broad actions so that they are relevant to policy and are timed to coincide
with meaningful points in agency planning and decisionmaking.? I

56. Each ofthe Projects is amajor federal action, and together they constitute broad
action by Defendants. 

57. Defendants did not prepare a programmatic EIS for the Projects.

COMPLAINT FOR DECLARATORY, AND MANDAMUS RELIEF ETC. Page 15

 

 

 








 

Case -WVG Document 1 Filed 12/27/10 Page 16 of 68

58. With regard to the Genesis Project, D?efendants? failure to prepare a programmatic
EIS for the Projects was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law as required by the APA.

59. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Project were not fully informed about the programmatic
impacts of, mitigation'measures for, andialternatives to the Projects prior to the decision to
approve and carry out the Genesis Project. I

NINTH CLAIM:
Violation of Federal Land PWgement Act--Genesis Project
(Against All Defendants except Lee, Goodro, and Trost)

60. Paragraphs 1 through 59? are fully incorporated into this paragraph.

61. FLPMA Section 302(b) provides as follows: ?In managing the public lands, the
Secretary shall, subject to this Act and other applicable law and under such terms and conditions
as are consistent with such law, regulate, through easements, permits, leases, licenses, published
rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and
development of the public lands, including, but not limited to, long?term leases to permit 

individuals to utilize public lands for habitation, cultivation, and the development ofsmall trade

or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary

may permit Federal departments and agencies to use, occupy, and develop public lands only

through rights-of-way under section 507 ofthis Act,?ywithdrawals under section 204 ofthis Act,
and, where the proposed use anddevelopment are similar or closely related to the programs of
the Secretary for the public lands involved, cooperative agreements under, subsection of
section 307 of this Act: Provided further, That nothing in this Act shall be construed as-
authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands
or on lands in the National Forest System and adjacent waters or as enlarging or diminishing
the responsibility and authority of the States for management of fish'and resident wildlife.



COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 16

 

 

 

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However, the Secretary concerned may designate areas of public land and of lands in the
National Forest System where, and establish periods when, no hunting or fishing will be
permitted for reasons of public safety, administration, or compliance with provisions of
applicable law. Except in emergencies, any regulations ofthe Secretary concerned relating to
hunting and fishing pursuant to this section shall be put into effect only after consultation with
the apprOpriate' State ?sh and game department. Nothing in this Act shall modify or change any
provision of Federallaw relating to migratory birds or to endangered or threatened species. 
Except as provided in section 314, section 603, and subsection of section 601 ofthis Act'and
in the last sentence of this paragraph, no provision ofthis section or any other section ofthis Act
shall in any way?amend the Mining Law of 1872 or impair the rights of any locators or claims
under that Act, including, but not limited to, rights of ingress and egress. In managing the
public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent
unnecessary or undue d?gradatidn i'ofthe lands.? I

62. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe Interior], in
accordance with section .202 ofthis Act, shall prepare and implement a comprehensive, long-
range plan for the management, use, development, and protection ofthe public lands within the
California Desert Conservation Area. Such plan shall take into account the principles of
multiple use and sustained yield in providing for resource use and development, including, but
not limited to, maintenance ofenvironmerital quality, rights-of?way, and mineral development.
Such plan shall be completed and implementation there-?ofinitiated on or before September 30,
1980.?

63. FLPMA Section 601(f) provides as follows: ?fSubject to valid existing rights,
nothing?in this Act shall affect the applicability ofthe United States mining laws on' the public
lands within the California Desert Conservation Area, except that all mining claims located on
public lands within the California Desert Conservation Area shall'be subject to such reasonable
regulations as the Secretary may prescribe to effectuate the purposes ofthis section. Any patent
issued on any such mining claim shall recite this limitation and continue to be subject to_such
regulations. Such regulations shall provide for such measures as may be reason-able .to protect 

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 17

 

 



hCase -WVG Document 1 Page 18 of 68

the scenic, scienti?c, and environmental values of the public lands of the California Desert
Conservation Area against undue impairment, and to assure against pollution ofthe streams and
waters within the California Desert Conservation Area.?

64 Defendants have not complied with FLPMA as itrelates to the Genesis. Project
even though .it is located on federal (public) land and is within the California Desert
Conservation Area and subject to the CDCA Plan. 

65. Defendants? failure to comply with the Plan and take all action necessary
to prevent unnecessary or undue degradation of the federal (public) land affected when they
approved-the Genesis Project was contrary to and arbitrary, capricious, an abuse iof
discretion, or otherwise not in accordance with law as required by the APA.

66. Plaintiffs, theirrespective members, and other members ofthe public have been
harmed as a result of Defendants? violations of FLPMA and the APAbecauseythey have been
denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, and the public will have to endure
unnecessary or undue degradation ofthe federal (public) land affected by the Genesis Project
and will lose the protections provided for this land by the CDCA Plan.

a TENTH CLAIM:
Violation of Native American Gram Repatriation Act--Genesis Project
(Against All Defendants except Lee, Goodro, and Trost) I

67. Paragraphs 1 through 66 are fully incorporated into this paragraph.

68. Section 3(b) of the NAGPRA provides as folloWs: ?Native American-cultural
items not claimed under subsection ofthis section shall be disposed of in accordance with
regulations promulgated by the Secretary-[of the Interior] in consultation with the review
committee established under section. ofthis [Act], Native American groups, representatives
of museums and the scientific community.?

69. Section 3(0) ofthe provides as follows: ?The intentional removal from
or excavation of Native American cultural items from Federal or tribal lands for purposes of

discovery, study, or removal of such items is permitted only if--

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 13

 

 

Case -WVG Document 1 Filed 12/27/10 Page 19 of 68

such items are excavated or removed pursuant to a permit issued
under section 470cc ofTitle 16 [ofthe U.S. Code] which shall be consistent with
this [Act]; 

such items are excavated or removed after consultation with or, in the
case of tribal lands, consent of the appropriate (if any) Indian tribe or Native
Hawaiian organiiation;

the ownership and right of control of the disposition of such items
shall be as provided in subsectidns and of this section; and

proof of consultation or consent under paragraph (2) is

shown.?

70. Defendants? approval of the .Genesis Project will result in the intentional
excavation, disposal, or other removal of Native American cultural items (including human
remains) known-to be or strongly suspected of being on the site of the Project without
compliance with the conditions necessary for excavation, disposal, or other removal. By way
of example and not limitation, Defendants have not consulted with or obtained the consent of
the Indian tribe whose cultural remains or located on the siie of the Project;

71. Defendants? failure to consult with and obtain the consent of the appropriate
Indian tribe prior to excavating, disposing of, or. otherwise removing Native American cultural
items (including human remains) known to be or strongly suspected of being on the site ofthe

Genesis Project was contrary to the NAGPRA and arbitrary, capricious, an abuse of discretion,

.or otherwise not in accordance with' law as required by the APA.

72. Plaintiffs, their respective members, and other members of the public have been
harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have
been denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, and the public (including the apprOpriate
Indian tribe) will have to endure the exCavation, disposal, or other removal ofNative American
cultural items (including human remains) located on the site ofthe Genesis Project without the
necessary consultation and consent prior to Defendants? approval of the Project.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 19

 

 

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Case -WVG Document 1 Filed 12/27/10 Page 20 of 68

ELEVENTH CLAIM:
Violation of National Historic Preservation Act--Imperial Project
(Against All Defendants except Lee, Kalish, and Trust)
73. Paragraphs 1 through 72 are fully incorporated into this paragraph.

74. . NHPA Section 101(d)(6)(B) provides as follows: Properties of traditional

- religious and cultural importance to an Indian tribe or Native Hawaiian organization may 'be

determined to be eligible for inclusion on the National Register. (B). In carrying out its
responsibilities under section 106 of this Act, a Federal agency shall consult with any Indian
tribe or Native Hawaiian organization that attaches religious and cultural signi?cance to
properties described in subparagraph NHPA Section 106 provides as follows: ?The head
ofany Federal agency having direct or indirectjurisdiction over a proposed Federal or federally
assisted undertaking in any State and the head ofany Federal department or independent agency
having authority to license any undertaking shall, prior to the approval of the expenditure of any .
Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take
into account the effect ofthe undertaking on any district, site, building, structure, or object that
is included in orleligible for inclusion in the National Register. The head of any such Federal
agency shall afford the Advisory Council on Historic Preservation established under Title II of
this Act a reasonable opportunity to commentwith regardto such undertaking.?

75. Plaintiffs, both separately and collectively, attach religious and cultural
significance to the federal (public) land that will be affectedby the Imperial Project. This land
has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently,
Plaintiffs will be seriously harmed by Defendants? failure to comply with NHPA.

76. Under AmendmentNo. 1 (Exhibit Defendants were required to perform the
NHPA-prescribed consultations with Plaintiff LA CUNA. Even in the absence ofAmendment

No. 1, Defendants were required to perform the NHPA-prescribed consultations for the benefit

'of Plaintiffs (among others).

77. Defendants failed to perform the NHPA-prescribed consultations for the Imperial
Project. Their failure in this regard was contrary to NHPA and arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law as required by the APA.

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78. Plaintiffs, their respective members, and other members of the public have been

I harmed as a result of Defendants? violations of NHPA and the APA because they have been

denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Imperial Project were not fully informed about the traditional
religious and cultural importance attached by Plaintiffs and Indian tribes to the federal (public)
land that will be affected by the Imperial Project.
. TWELFTH CLAIM: 
Violation of National Environmental Policy Ac't--Imperial Project
(Against All Defendants except Lee, Kalish, and Trost)

79,. Paragraphs 1 through 78 are fully incorporated into this paragraph.

8f). NEPA requires every federal agency to prepare an environmental impact
statement for every, major action significantly affecting the quality of the human
environment that the agency-proposes to approve or carry out. In general, the EIS must
adequately address the proposed action?s environmental impact, (it) any adverse
environmental effects that cannot be avoided if?the proposed action is implemented, 
alternatives to the proposed action, (iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of long-term productivity, any
irreversible and irretrievable commitments of resources that would be involved in the proposed
action if implemented, (vi) mitigation measures for the proposed action, and (vii) cumulative
impacts for the proposed action. 

81. Defendants have not prepared an adequate EIS for the Imperial Project even
though it is ?a-major action proposed to be approved and carried out?by at least one federal
agency and has the potential to affect the quality ofthe human environment, including but not.
limited to the environment in the California Desert Conservation Area.

82. Defendvants? failure to prepare an adequate EIS for the Imperial Project was
contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law as required by the APA.

COMPLAINT FOR DECLARATORY, AND MANDAMUS RELIEF ETC. Page 21

 

 

 

 






00 \1 ON U) \O<w '4 43 U) 

 

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83. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a'result of Defendants? violations of NEPA and the because they have been
denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-maker's who
approved and are carrying out the Project were not fully informed about the impactsiof,
mitigation measures for, and alternatives to the Project prior to the decision to approve and carry
out the Project. i

THIRTEENTH CLAIM: .
Violation of National Environmental Policy Act--?Imperial Project
(Against All Defendants except Lee, Kalish, and Trust)
84. Paragraphs 1 through 83 are fully incorporated into this paragraph.

85.? NEPA (under Kleppe v. 'Sierra Club, 427 US. 390 (1976)) requires the

environmental consequences of several proposals that will have cumulative or synergistic

environmental impacts upon a region to be considered together in a programmatic EIS. Section
1502.4(b) of Title 40 ofthe Codeof Federal Regulations provides that federal agencies ?shall
prepare statements on broad actions'so that they are relevant topolicy and are timed to coincide 
with meaningful points in agency planning and decisionmaking.?
86. Each ofthe Projects is a major federal action, and together they constitute broad

action by Defendants. 

87. Defendants did not-prepare a programmatic EIS for the Projects.

88. With regard to the Imperial Project, Defendants? failure to prepare a programmatic
EIS forthe Projects was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law as required by the APA.

89. Plaintiffs, their respective members, and other members of the public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who

approved and are carrying out the Project were not fully informed about the programmatic

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF arc. 

Page 22

 

 

 

 






 

Case -WVG Document 1 Filed 12/27/10 Page 23 of 68

impacts of, mitigation measures for, and alternatives to the Projects prior to the decision to -
approve and carry out the Imperial Project. I 
Violation ofFederal Act--Imperial Project
(AgainstlAll Defendants except Lee, Kalish, and Trost)
. 90. 'Paragraphs 1 through 89 are fully incorporated into this paragraph.

91. FLPMA Section 302(b) provides as follows: ?In managing the public lands, the
Secretary shall, subject to this Act and other applicable law and under suCh terms and conditions
as are consistentwith such law, regulate, through easements, permits, leases, licenses, published
rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and
development of the public lands, including, but not limited to, long-term leases to permit
individuals to utilize public lands for habitation, cultivation, and the development ofsmall trade
or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary
may permit Federaldepartments and agencies to use, occupy, and develop public lands only
through rights-of-way under section 507 ofthis Act, withdrawals under section 204 ofthis Act,
and, where the proposed use and development are similar or closely related to the programs of

the Secretary for the publiclands involved, cooperative agreements under subsection of

section 307 of this Act: Provided further, That nothing in this Act shall be construed as

authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands

or on lands in the National Forest System and adjacent waters or as enlarging or diminishing 
the responsibility and authority of the. States for management of fish and resident 'wildlife.
However, the Secretary concerned may designate areas?of- public land and of lands in the
National Forest System where, and establish periods when, no hunting?or fishing will be
permitted for reasons of public safety, administration, or compliance with provisions of
applicable law. Except in emergencies, any regulations of the Secretary concerned relating to
hunting and fishing pursuant to this section shall be put into effect only afterconsultation with
the appropriate State fish and game department. Nothing in this Act shall-modify or change any
provision of Federal law relatingto migratory birds or to endangered or threatened species.
Except as provided in section 314, section 603, and subsection of section 601 ofthis Act and

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 23

 

 

 

 



NVN o? v?I L?d o?t r?l t?I 


 

unceremonth

 

Case -WVG Document 1 Filed 12/27/10 Page 24 of 68

in the last sentence ofthis paragraph, no provision ofthis section or any other section ofthis Act
shall in any way amend the Mining Law of91872 or impairthe rights of any locators or claims
under that Act, including, but not?limited to, rights of ingress and egress. In managing the
public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent
unnecessary or undue degradation of the lands." 

92. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe 
acCordance with section 202 ofthis Act, Shall prepare and implement a comprehensive, long-
range plan for the management, use, development, and protection ofthe public lands within the

California Desert Conservation Area. Such plan shall take into account the principles of

multiple use and sustained yield in providing for resource use and deVelopment, including, but

not limited to, maintenance of environmental quality, rights-of-way, and mineral development.
Such plan shall be completed and implementation there-ofinitiated on or before September 30,
1980.?

93. FLPMA Section 601(1) provides as follows: ?Subject to valid existing rights,
nothing in this Act shall affect the applicability ofthe United States mining laws on the public
lands within the California Desert ConservationArea, except that all mining claims located on

public lands within the California Desert Conservation Area shall be subject to suchj'reasonable

regulations as the Secretary may prescribe to effectuate the purposes ofthis section. Any patent 

issued on any such mining claim shall. recite this limitation and continue to be subject to such
regulations. Such regulations shall provide for such measures as may be reason?able to protect 
the scenic, scientific, and environmental values of the public lands of the California Desert
Conservation Area against undue impairment, and to assure againstpollution ofthe streamsand
waters within the California Desert Conservation Area.? I

94. Defendants have notcomplied with FLPMA as it relates to the Imperial Project
even though it is located on federal (public) land and is within the California Desert
Conservation Area and subject to the CDCA Plan.

95. Defendants? failure to comply with the CDCA Plan and take all action necessary
to prevent unnecessary or undue degradation of the federal (public) land affected when they

COMPLAINT FOR DECLARATQRY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 24

 

 

 

 

. Case -WVG Document 1 Filed 12/27/10 Page 25 of 68
1 approved the Imperial Project was contrary to and arbitrary, capricious, an abuse of
2 discretion, or otherwise not in accordance with law as required by the I
3 96. Plaintiffs, their respective members, and other members ofthe public have been

I 4 harmed as a result of Defendants? violations of FLPMA and the APA because they have been
5 denied the benefits and protections provided by compliance with those laws. By way of
6 example and without limitation, Plaintiff,its members, and the public 'will have to endure
7 unnecessary or undue degradation ofthe federal (public) landaffected by the Imperial Project
8 and will lose the protections provided for this land by the CDCA Plan. A A
9 FIFTEEN CLAIM: . .

Violation of Native American Graves Protection Repatriation Act--Imperial Project 

10 (Against All Defendants except Lee, Kalish, and Trost)

ll 97. Paragraphs 1 through 96 are fully incorporated into this paragraph.

12 98. Section 3(b) of the NAGPRA provides as follows: ?Native American cultural

13 items not claimed under subsection of this section shall be disposed of in accordance with

14 regulations promulgated by the Secretary [of the Interior] in consultation with the review

15 committee established under section ofthis [Act], Native American groups, representatives

16 of museums and the scientific community.?

17 99. Section 3(c) ofthe NAGPRA provides as follows: ?The intentional removal from:

18 or excavation of Native American cultural items from Federal-or tribal lands for purposes of

'19 discovery, study, or removal of such items is permitted only if?-

20 Such items are excavated or removed pursuant to a permit issued

21 under section 470cc ofTitle 16_[ofthe U.S. Code] which shall be consistent with

22 this [Act]; I

23 such items are excavated or removed after consultation with or, in the

24 case of tribal lands, consent of the appropriate (if any) .Indian tribe or Native

25 Hawaiian organization; 

26 the ovvnership and right of control of the disposition of such] items

27 shall be as provided in subsections and ofthis section; and

28

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Case -WVG Document 1 Filed 12/27/10 Page 26 of 68 

proof of consultatiOn or consent under paragraph (2) is
shown.?
100.? Defendants? approval'of the Imperial Project will result in the intentional
excavation, disposal, or other removal of Native Americancultural items (including human -

remains) known to be or strongly suspected of being on the site of the Project without

- compliance with the conditions necessary for excavation, disposal,,or other removal. By way

ofexample and not limitation, Defendants have not consulted with or obtained the consent of
the Indian tribe whose cultural remains or located on the site of the Project. 

101. Defendants? failure to con?sult'with and obtain the consent of the appropriate
Indian tribe prior to excavating, disposing of, or otherwise removing Native American'cultural
items (including human remains)lknown to be or strongly suspected of being on the site ofthe I
Imperial Project was contrary to the NAGPRA and arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law as required by the APA.

102. Plaintiffs, their respective members, and other members of the public have been
harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have
been denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, and the public (including the appropriate
Indian tribe) will have to endure the excavation, disposal, or other removal ofNative American
cultural items (including human remains) located on the site of the Imperial Project without the
necessary consultation and consent prior to Defendants? approval ofthe Project.

. . SIXTEENTH CLAIM: 
Violation of National Historic Preservation Act-~Chevron Project
(Against All Defendants except Lee, Kalish, and Go'odro) I
103.

104.

Paragraphs 1 through 102 are fully incorporated into this paragraph.

NHPA Section 101(d)(6)(B) provides as follows: Properties of traditional
religious and cultural importance to an Indian tribe or Native Hawaiian organization may be
determined to be eligible for inclusion on the National Register. (B) In carrying out its
responsibilities under section 106 ofthis Act, a Federal agency shall consult with any Indian
tribe or Native Hawaiian, Organization that attaches religious and Cultural signi?cance to

COMPLAINT FOR INJUNCTWE, AND MANDAMUS RELIEF ETC. Page 26

 

 

 

 

p?l 

N-N I?n r?I b?l a?l u?a u?A t?t u?a 



 

Case -WVG Document 1 Filed 12/27/10 Page 27 of 68

properties described in subparagraph NHPA ?Section 106 provides as followsi ?The head
ofany Federal agency having direct or indirectjurisdiction over a proposed Federal or federally
assisted undertaking in any State and the head of any Federal department or independent agency
having authority to license any undertaking shall, prior to the approval ofthe expenditure ofany
Federal funds on the undertaking or prior to the issuance ofany license, as the case may be, take
into account the effect ofthe undertaking on any district, site, building, structure, or object that 

is included in or eligible for inclusion in the National Register. The head of any such Federal

agency shall afford the Advisory Council on Historic Preservation established under Title II of

this Act a reasonable opportunity to comment with regard to such undertaking.?

- 105. Plaintiffs, both separately and collective-1y, attach religious and cultural
significance to the federal (public) land that will be affected by the Chevron Project. This land
has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently,
Plaintiffs will be seriously harmed by Defendants? failure to comply with NHPA. .

106. UnderAmEndmentNo. 1 (Exhibit Defendants were required to perform the
NHPA?prescribed consultations with Plaintiff LA CUNA. Even in the absence ofAmendmen't
No. 1, Defendants were required to perform the NHPA-preseribed consultations for the benefit
of Plaintiffs (among others),

107.. Defendants failed to perform the NHPA-prescribed consultations for the Chevron
Project. Their failurein this regard was contrary to NHPA and arbitrary, capricious, an abuse
of discretion, or otherwise not in accordancewith law as required by the APA.

108-. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NHPA and the APA because they have been
denied the benefits and protections provided. by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Chevron Project were not fully informed about the traditional
religious and cultural importance attached by Plaintiffs and Indian tribes to the federal (public)

land that will be affected by the Chevron Project.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 27

 

 

 

 



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Case -WVG Document 1 Filed 12/27/10 Page 28 of 68

SEVENTEENTH 
Violation of National Environmental Policy Act~-Chevron Project
(Against All Defendants except Lee, Kalish, and Goodro)

109. Paragraphs 1 through 108 are fully incorporated into this paragraph.
110. NEPA requires every federal agency to prepare an environmental impact

statement for every major action signi?cantly affecting the quality of the human

environment that the agency proposes to approve or carry out. 'In general, the EIS must

adequately address the proposed action?s environmental impact, (ii) any adverse

environmental effects that cannot be avoided if the proposed action is implemented, 

alternatives to the proposed action, (iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of long-term productivity, any
irreversible and irretrievable commitments of resources that would be involved in the proposed
action if implemented, (vi) mitigation measures for the proposed action,- and (vii) cumulative
impacts for the proposed action. I

111. Defendants have not prepared an adequate EIS for. the Chevron Project even
though it is a major actionrproposed to be approved and carried out by at least one federal
agency and has the potential to affect the quality of thehuman environment, including. but not
limited to the environment in the California Desert Conservation Area.

112. Defendants? failure to prepare an adequate EIS for the Chevron Project was
contrary to NEPA and arbitrary, abuse'of discretion, or otherwise not in
accordance with law as required by the 

113. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and ?are carrying out the Project were. not fully informed about the impacts of,
mitigation measures for, and alternatives to the Project prior to the decision to approve and carry

out the Project.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

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EIGHTEENTH CLAIM:
. Violation of National Environmental Policy Act--Chevron Project
(Against All Defendants except Lee, Kalish, and Goodro)
114. Paragraphs 1 through 113 are fully incorporated into this paragraph.

115. NEPA (under Kleppe v. Sierra Club, 427 US. 390 (1976)) requires the
environmental consequences of several proposals that will have cumulative or synergistic
environmental impacts upon a region to be consideredtogether in a programmatic EIS. Section
1502.4(b) of Title 40 ofthe Code of Federal Regulations provides that federal agencies ?shall
prepare statements on broad actions so that?they are relevant to policy and are timed to coincide 
with meaningful points in agency planning and decisionmaking.?

116. Each ofthe-Projects is a major federal action, and together they constitute broad
action by Defendants. I I

1 17. Defendants did not prepare a programmatic .EIS for the Projects.

1 18. With regard to the Chevron Project, Defendants? failure to prepare a
programmatic BIS for the Projects was contrary to NEPA and arbitrary, capricious, an abuse of
discretion, or otherwise notin accordance with law as required by the APA.

1 l9. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the bene?ts and protections provided by compliance with those laws. By way of .
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Project were not fully informed about the programmatic
impacts of, mitigation measures for, and alternatives to the Projects prior to the decision to
approve and carry out the Chevron Project. I

I NINETEENTH CLAIM:

Violation of Federal Land Policy and Management Act?Chevron Project

(Against All Defendants except Lee, Kalish, and Goodro)
120. Paragraphs lithrough 119 are fully incorporated into this paragraph.
121. FLPMA Section 302(b) provides as follows: ?In managing the public lands-,Ithe

Secretary shall, subject to this Act and other applicable law and under such terms and conditions

as are consistent with such law, regulate, through easements, permits, leases, licenses, published

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

Page 29

 

 

 

 

00 ON (II UJ t?i




 

I

Case -WVG Document 1 I Filed 12/27/10 Page 30 of 68,

rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and
development of the public lands, including, but 'not limited to, long-term leases to permit
individuals to utilize public lands for habitation, cultivation, and the development of small trade
or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary
may permit Federal departments and agencies to use, occupy, and develop public lands only
through rights-of-way under section 507 ofthis Act, withdrawals under section 204 ofthis Act,
and, where the proposed use and development are similar or closely related to the programs of
the Secretary for the public lands involved, cooperative agreements underlsubsection of 
section 307 of this Act: Provided further, That nothing in this'Act shall be construed as
authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands
or on lands in the National 'Forest System and adjacent waters or as enlarging or diminishing
the responsibility and authority of the States for management of? fish and resident wildlife.
However, the Secretary concerned may designate areas of public land and 0f lands in the
National Forest System where; and establish periods when, no hunting or fishing will be
for reasons of public safety, administration, or compliance with provisions of
applicable law. Except in emergencies, any regulations of the Secretary concerned relating to
hunting and fishing pursuant to this section shall be put into effect only after consultation with
the appropriate State fish and game department. Nothing in this Act shall modify or change any
provision of Federal law relating to migratory birds or to endangered or threatened species.
Except as provided in section 314, section 603, and subsection of section 601 ofthis Act and
in the last sentence ofthis paragraph, no provision ofthis section or any other section ofthis Act
shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims
under that Act, including, but not limited to, rights of ingress and egress. In managing the
public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent
unnecessary or undue degradation ofthe lands.?

122. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe Interior], in
accordance with section 202 of this Act, shall prepare and implement a comprehensive,ilong-
rangeplan for the management, use, development, and protection of the public lands within the

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC, Page 30

 

 

 

Case -WVG Document 1 Filed 12/27/10 Page 31- of 68

California Desert Conservation Area. Such plan shall take into account the principles of
multiple use and sustained yield in providing for resource use and development, including, but
notflimited to, maintenance of environmental quality, rights-of-way, and mineral development.
Such plan shall be completed and implementation there-ofinitiated on or before September 30,
1980:? 

i 123. Section 601(f) provides as follows: ?Subject to valid existing rights,
nothing in this Act shall affect the applicability ofthe United States mining laWS on the public
lands within the California Desert Conservation Area, exCept that all mining claims located on

public lands within the California Desert Conservation Area shall be subject to such reasonable

regulations as the Secretary may prescribe to effectuate the purposes of this section. Any patent

issued on any such mining claim shall recite this limitation and continue to be subject to such

regulations. Such regulations shall provide for such-measures as may be reason-able to protect
the scenic, scienti?c, and environmental values of the public lands of the California Desert

Conservation Area against undue impairment, and to assure against pollution ofthe streams and

waters within the California Desert Conservation Area.?

124. Defendants have not complied with FLPMA as it relates to the Chevron Project
even though it is located on federal (public) land and .is within the California Desert
Conservation Area and subject to the CDCA Plan.

125. Defendants? failure to comply with the CDCA Plan and take all action necessary
to prevent unnecessary or undue degradation of the federal (public) land affected when they
approved the Chevron Project was contrary to FLPMA and arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law as required by the APA.

126. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendantsl? violations of FLPMA and the APA because they have been 
denied the benefits and protections provided by compliance with those laws. By way of

example and without limitation, Plaintiff, its members, and the public will have to endure

unnecessary or undue degradation of the federal (public) land affected by the Chevron Project

and will lose the protections provided for this land by the CDCA Plan.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

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. TWENTIETH CLAIM: .
Violation of Native American Graves Protection Repatriation Act--Chevron Project
(Against All Defendants except Lee, Kalish, and Goodro)
127.

128. Section of the NAGPRA provides as follows: ?,?Native American cultural

Paragraphs '1 through 126 are fully incorporated into this paragraph.

items not claimed under subsection of this section shall be diSposed ofin accordance with
regulations promulgated by the Secretary [of the Interior] in consultation With the review
committee established under section of.this [Act], Native American groups, representatives
of museums and the scientific community.?

129. Section 3(0) ofthe NAGPRA provides as follows: ?The intentional removal from
or excavation of Native American cultural items from Federal or tribal lands for purposes of
discovery, study,jo?r removal of such items is permitted only if-- I

such items are excavated or removed pursuant to a permit issued
under section 470cc of Title 16 [ofthe'U.S. Code] which shall be consistent with

this [Act]; 

such items are excavated orremoved after consultation with or, in the
case of tribal lands, consent of' the appropriate (if any) Indian tribe or Native
Hawaiian organization;
the ownership and right of control of the disposition of such items
shall be as provided in subsections and of this section; and 
proof of consultation or consent under paragraph (2) is -
. shown.? 

130. Defendants? approval of the Chevron Project will result in the intentional
excavation, disposal, or other removal of Native American cultural items (including human
remains) known to be or strongly suspected of'being on the site of the Project without
compliance with the conditions,,necessary for excavation, disposal, or other removal. By way
of example and not limitation, Defendants have not consulted wither obtained the consent of

the Indian tribe whose cultural remains or located on the site ofthe Project.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF-ETC. Page 32

 

 

 

 

 

5?4

o?t r?t'u?d u?a u?n 

00 Lit 

 

Case -WVG Document 1 Filed 12/27/10 Page 33 of 68

131. Defendants? failure to consult with and obtain the consent of the appropriate
Indian tribe prior to excavating, disposing of, or otherwise removing Native American cultural
items (including human remains) known to be or strongly suspected ofbeing on" the site ofthe
Chevron Project was contrary to the NAGPRA and arbitrary, capricious, an abuse ofdiscretion,
or otherwise not in accordance with law as required by theiAPA. 

132. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have
been denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, and the public (including the appropriate
Indian tribe) will have to endure the excavation, disposal, or other removal of Native American
cultural items (including human-remains) located on the site of the Chevron Project without the
necessary consultation and consent prior to Defendants? approval ofthe Project.

TWENTY-FIRST CLAIM:
Violation of National Historic Preservation Act--Calico Project
(Against All Defendants except Lee, Kalish, and G'oodro)

133. Paragraphs 1 through 132 are fully incorporated into this paragraph.

134. NHPA Section 101(d)(6)(B) provides as follows: Properties of traditional
religious and cultural importance to an Indian tribe or Native Hawaiian organization may be
determined to. .be eligible for inclusion on the National Register. (B) In carrying out its
responsibilities under section 106 of this Act, a Federal agency shall consult with any Indian
tribe or Native, Hawaiian organization that attaches religious and cultural significance to
properties described in subparagraph NHPA Section 106 provides as follows: ?The head
ofany Federal agency having direct or indirectjurisdiction over a proposed Federal or federally
assisted undertaking in any State. and the head ofany Federal department or independent agency
having authority to license any undertaking shall, prior to the approval ofthe expenditure ofany
Federalfun'ds on the undertaking or prior to the issuance of any license, as the case may be, take

into account the effect ofthe undertaking on any district, site, building, structure,,or object'that

is included in or eligible for inclusion in the National Register. The head. of any such Federal

COMPLAINT FOR DECLARATORY, AND MANDAMUS RELIEF ETC. Page 33

 

 



'e-J ON UI ON 43 DJ 

 

Case -WVG Document 1 Filed 12/27/10 Page 34 of 68

agency Shall afford the Advisory Council on Historic Preservation established under Title II of
this Act a reasonable opportunity to comment with regard to such undertaking.?

135. Plaintiffs, both separately and collectively, attach religious and cultural
significance to the federal (public) land that will be affected by the Calico Project. This land
has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently,
Plaintiffs will be seriously harmed by'Defendants? failure to comply with NHPA.

136. Under AmendmentNo. 1 (Exhibit Defendants were required to perform the
NHPA-prescribed consultations with Plaintiff LA CUNA. Even in the absence ofAmendment
N0. 1, Defendants were required to perform the NHPA?prescribed consultations for the benefit
of Plaintiffs (among others).

137. Defendants failed to perform the NHPA-prescribed consultations for the Calico
Project. Their failure in this regard was contrary to NHPA and arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance _with law as required by the APA.

138. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NHPA and the APA because they have been
denied the benefits and'protections provided by compliance with those laws. By" way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Calico Project were not fully informed about the traditional
religious and cultural importance attached by Plaintiffs and Indian tribes to the federal (public)
land that will be affected by the Calico Project.

TWENTY-SECOND CLAIM:
Violation of National Environmental Policy Act--Calico Project
(Against All Defendants except Lee, Kalish, and Goodro) 

139. Paragraphs 1 through 138 are fully incorporated into this paragraph.

140. NEPA requires every federal agency to prepare an environmental impact 
statement for every major action significantly affecting the quality of the human

environment that the agency proposes to approve or carry out. In general, the EIS must

adequately address the proposed action?s? environmental impact, (it) any adverse

environmental effects that cannot be avoided if the proposed action-is implemented, 

COMPLAINT FOR DECLARATORY, INJUNCTWE, AND MANDAMUS RELIEF ETC.

Page 34

 

 

 



00 -l Ch LII -I>n 00 \1 ON LII 

 

Case -WVG Document 1 Filed 12/27/10 Page 35 of 68'

alternatives to the propOsed action, (iv) the relationship between local short-term uses of the
environment and the maintenance and enhancement of long-term productivity, any
irreversible and irretrievable commitments of resources that would be involved in the proposed
action if implemented, (vi) mitigation measures for the proposed action, and (vii) cumulative
impacts for the proposed action.

141.. Defendants have not prepared an adequate EIS for the Calico Project even though
it is a major action proposed to be approved and carried out by at least one federal agency and
has the potential to affect the quality ofthe human environment, including but not limited to the
environment in the California Desert Conservation Area.

142. Defendants? failure to prepare an adequate EIS for the Calico Project was contrary
to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law as required by the APA. 

143. Plaintiffs, their respective members, and other members of the public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the bene?ts and proteCtions?provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Project were not fully informed about the impacts of,
mitigation measures for, and alternatives to the Project prior to the decision to approve and carry
out the Project.

TWENTY-THIRD CLAIM:
Violation of National Environmental Policy Act--Calico Project
(Against All Defendants except Lee, Kalish, and Goodro)
144. Paragraphs 1 through 1'43 are fully incorporated into this paragraph.-

145. NEPA (under Kleppe v. Sierra Club, 427 U.S. 390 (1976)) requires the

environmental consequences of several proposals that will have cumulative or synergistic

environmental impacts upon a region to be considered together in a programmatic EIS. Section
1502.4(b) of Title 40 ofthe Code of Federal Regulations provides that federal agencies ?shall
prepare statements on broad actions so that they are relevant to policy and are timed to coincide
with meaningful points in agency planning and decisionmaking.?

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND .MANDAMUS RELIEF ETC. Page 35

 

 

 








 

Case -WVG Document 1 Filed 12/27/10 Page 36 of 68

146. Each ofthe Projects is a major federal action, and together they constitute broad
action by Defendants.

147.

148.

Defendants did not prepare a programmatic EIS for the Projects.
With regard to the calico Project, Defendants? failure to prepare a programmatic
EIS for the Projects was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law as required by the APA. I

149. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Project were not fully informed about the programmatic
impacts of, mitigation measures for, and alternatives to theProjects prior to the decision to
approve and carry out the Calico Project.

TWENTY-FOURTH CLAIM:
Violation of FederalLand Policy and Management Act--Calico Project
(Against All Defendants except Lee, Kalish, and Goodro)

150. Paragraphs 1 through 149 are fully incorporated into this paragraph.

151. FLPMA Section 302(b) provides?as follows: ?In managing the public lands, the
Secretary shall, subject to this Act and other applicable law and under such terms and conditions
as are consistent with such-law, regulate, through easements, permits, leases, licenses, published
rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and
development of the public lands, including, but not limited to, long-term leases to permit
individuals to utilize public lands for habitation, cultivation, and the development of'small trade
or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary
may permit Federal departments and agencies to use, occupy, and develop public lands. only
through rights-of?way undersection .507 ofthis Act, withdrawals under section 204 ofthis Act,
and, where theproposed use and development are similar or closely related to the programs'of 
the Secretary for the public lands involved, cooperative agreements under subsection of
section 307 of this Act: Provided further, That nothing in this Act shall be construed as

COMPLAINT FOR AND MANDAMUS RELIEF ETC. Page 36

 

 






 

Case -WVG Document 1 Filed 12/27/10 Page 37 of 68

authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands
or on lands in the National Forest System and adjacent waters or as enlarging or diminishing
the responsibility and authority of the States for management or fish and resident wildlife.
However, the Secretary concerned may designate areas of public land and of lands in the
National Forest System where, and establish periods when, no hunting or fishing will be
permitted for reasons of public safety, administration, or compliance with provisions 0f
applicable law. Except in emergencies, any regulations ofthe Secretary concerned relating to
hunting and fishing pursuant to this section shall be put into effect only after consultation with
the appropriate State fish and game department. Nothing in this Act shall modify or change any
provision of Federal law relating to migratory birds or to endangered or threatened species.

Except as provided in section 314, section 603, and subsection of section 601 ofthis Act and

.in the last sentence ofthis paragraph, no provision ofthis section or any other section ofthis Act 

shall'in any way amend the Mining Law of 1872 or impair the rights of any locators or claims

under that Act, including, but not limited to, rights of ingress and egress.? In managing the I

public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent

unnecessary or undue degradation of the lands.?-

152. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe Interior], in
accordance with section 202 of this Act, shall prepare and implement a comprehensive, long-
range plan for the management, use, development, and protection ofthe public lands within the .

California Desert Conservation Area. Such plan shall take into account the principles of

multiple use and sustained yield in providing for resource use and development, including, but .

not limited to, maintenance of environmental quality, rights-of-way, and mineral development.
Such plan shall be completed and implementation there-ofinitiated on or before September30,
1980.?

153. FLPMA Section 60l(f) provides as'follows: f?Subject to valid existing rights,.
nothing in this Act shall affect the applicability ofthe United States mining laws on the public
lands within the California Desert Conservation Area, except that all mining claims located on

public lands within the California Desert Conservation Area shall be subject to such reasonable

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

.Page 37

 

 

 





b?d h?l u?Case -WVG Document 1 Filed 12/27/10 Page 38 of 68

regulations as the Secretary may prescribe to effectuate the purposes ofthis section. Anypatent
issued on any such mining'claim shall recite this limitation and continue to be subject to such
regulations. Such regulations shall provide for such measures as may be reason-able-to protect
the scenic, scienti?c, and environmentalvalues of the public lands of the California Desert
Conservation Area against undue impairment, and to assure against pollution of the Istreams and
waters within the california'Desert Conservation Area.?

154. Defendants have not complied with FLPMA as it relates to the Calico Project
even though it is located on federal (public) land and is within the California Desert .
Conservation Area and subject to the CDCA Plan.

155. Defendants? failure to comply with the CDCA Plan and take all action necessary
to prevent unnecessary or undue degradation of the federal (public) land affected when they
approved the Calico, Project was contrary to FLPMA and arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law as required by the APA.

156. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of FLP-MA and the APA because they have been
denied the benefits and protections provided by compliance with those laws. By way of
example and. without limitation, Plaintiff, its members, and the public will have to endure
unnecessary or undue degradation ofthe federal (public) land affected by the calico Project and
will. lose the protections provided for this land by the CDCA Plan.

TWENTY-FIFTH CLAIM:
Violation of Native American Graves Protection Repatriation Act--Calico Project
(Against All Defendants except Lee, Kalish, and Goodro)

157. Paragraphs 1 through 156 are fully incorporated into this paragraph.

158. "Section 3(b) of the NAGPRA provides as fol-lows: ?Native American cultural
items not claimed under subsection ofthis section shall be disposed of in accordance with
regulations promulgated by the Secretary [of the?Interior] in consultation with the review

committee established under section ofthis[Act], Native American groups, representatives 4

of museums and the scientific community.?

. Page 38

COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC.

 

 

I?l






 

Case -WVG Document 1 Filed 12/27/10 Page 39 of 68

1'59. Seetion 3(c) ofthe NAGPRA provides as follows: ?The intentional removal from
or excavation of Native American cultural items from Federal or tribal lands for purposes of
discovery, study, or removal of such items is permitted only if--

such items are excavated or removed pursuant to a permit issued
under section 470cc ofTitle 16 [ofthe US. Code] which shall be consistent with
this [Act];

such items are excavated or removed after consultation with or, in the
case of tribal lands, consent of the appropriate (if any) Indian tribe or Native

Hawaiian organization; I I
the ownership. and right of control of the disposition of such items
shall be as provided in subsections and ofthis section; and

proof of consultation or consent under paragraph (2) is

shown.? I

160. Defendants? approval of the Calico Project will result in the intentional
excavation, disposal, or other removal of Native American cultural items (including human
remains) known .to be or strongly suspected of being on the site of the Project without
compliance with the conditions necessary for excavation, disposal, or other removal. By way
of example and not limitation, Defendants-have not consulted with or obtained the consent of
the Indian tribe whose cultural remains or located on the site oftheProject.

161?. Defendants? failure to consult with and obtain the consent of the appropriate
Indian tribe prior to excavating,,disposing of, or otherwise removing Native American cultural
items (including'human remains) known to be or strongly suspected ofbeing on the site ofthe
Calico Project was contrary to the NAGPRA and arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law as required by the APA.

162. Plaintiffs, their respective members, and other members of the public have been
harmed as a result of Defendants? ?violations ofthe and the APA because they have
been denied the'benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, and the public (including the appropriate

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND M-ANDAMUS RELIEF ETC. Page 39

 

 

 






 

I Case -WVG Document- 1 Filed 12/27/10 Page 40 of 68

Indian tribe) willhave to endure the excavation, diSposal, or other removal ofNative American
cultural items (including human remains) located on the site ofthe Calico Project without the
necessary consultation and consent prior to Defendants? approval of the Project.
TWENTY-SIXTH CLAIM:
Violation of NationalHistoric Preservation Project
(Against All Defendants except Lee, Trost, and Goodro)

163.. Paragraphs 1 through 162 are fully incorporated into this paragraph.

164. NHPA Section 101(d)(6)(B) provides as follows: Properties of traditional
religious and cultural importance to an Indian tribe or Native Hawaiian organization may be
determined to be eligible for. inclusion on the National Register. (B) In carrying out its
responsibilities under section -106 ofthis Act, a Federal? agency shall consult with any Indian
tribe or Native Hawaiian organization that attaches religious and cultural signi?cance to
properties described in subparagraph NHPA Section 106 provides as follows: ?The head
of any Federal agency having direct or indirectjurisdictidn over a proposed Federal or federally
assisted undertaking in any State and the head ofany Federal department or independent agency
having authority-to license any undertaking shall, prior to the approval ofthe eitpenditure ofany
Federal funds on the undertaking or prior to the issuance ofany license, as the case may be, take
into account the effect ofthe undertaking on any district, site,bui1ding, structure, or object that
is included in or eligible for inclusion in the National'Register. The head of any such Federal
agency shall afford the Advisory Council on Historic Preservation established under Title II of
this Act a reasonable opportunity to comment with regard to such undertaking.? I

165. Plaintiffs, both separately and collectively,"attach religious and cultural

.significance to the federal (public), land that will be affected by the Project. This land

has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently,
Plaintiffs will be seriously harmed by Defendants? failure to comply with?NHPA.

166. UniderAmendmentNo. 1- (Exhibit were required to perform the
NHPA-prescribed consultations with Plaintiff LA CUNA. Even in the abSence ofAmendment
No. I, Defendants were required to perform the NHPA-prescribed consultations for the benefit
of Plaintiffs (among others). 

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167. Defendants failed to perform the NHPA-prescribed consultations for the 
Project. Their failure'in this regard was contrary to NHPA and arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law as required by the APA.

168. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants' violations of NHPA and the APA because they have been
denied the benefits and' protections provided by compliance with those laws. Byway of
example and withoutlimitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying 'out the Project were not fully informed about the traditional
religious and cultural importancearttached by Plaintiffs and Indian tribes to the'federal (public)
land that will be affected by the Project. I

TWENTY-SEVENTH 
Violation of National Environmental Policy Project
(Against All Defendants except Lee, Trost, and Goodro)

169. Paragraphs 1 through 168' are fully incorporated into thisparagraph.

170. NEPA requires every federal agency to prepare an environmental impact
statement for every major action signi?cantly affecting the quality of the human
environment that the agency proposes to approve or carry out. In general, the EIS must
adequately {address the pr0posed action?s environmental impact, (ii) any adverse
environmental effects that cannot be avoided if the proposed action is implemented, 
alternatives to the proposed action, (iv) the relationshipbetween local short?term uses of the
environment and the maintenance and enhancement of long-term productivity, any
irreversible and irretrievable commitments Of resources that would be involved in the proposed
action if implemented, (vi) mitigation measures for the proposed action, and (vii) cumulative
impacts for the?proposed action.

.171. Defendants have not prepared an adequate EIS for the Project even though

it is a major action proposed to be approved and carried out by at least one federal agency and

has the potential to affect the quality ofthe human environment, including but not limited to the

environment in the California Desert Conservation Area.

COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 41

 

 

wedge-rampage.?



 

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172. Defendants? failure to prepare an adequate EIS for the Project was contrary
to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance With
law as required by the APA. 

. 173. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the bene?ts and protections provided by compliance with those laws. By way of

example and without limitation, Plaintiff, its members, the public, and the decision?makers who

approved: and are carrying out the'Project were not fully informed about the impacts of,

- mitigation measures for, and alternatives to the Project prior to the decision to approve and carry

out theProject.
TWENTY-EIGHTH CLAIM:
Violation of National Environmental Policy Project
(Against All Defendants except Lee, Trust, and Goodro)

1.74. Paragraphs 1 through 173 are fully incorporated into this paragraph.

175. NEPA (under Kleppe v. Sierra Club, 427 US. 390 (1976)), requires the 
environmental consequences of several proposals that will have cumulative or synergistic
environmental impacts upon a region to be considered together in a pregrammatic Section
1502.4(b) of Title 40 of the Code of Federal Regulations provides that federal agencies ?shall
prepare statements on broad actions so that they are relevant to policy and are timed to coincide
with meaningful points in agency planning and decisionmaking.? I

176. Each ofthe Projects is a major federal action, and together they constitute broad
action by Defendants. I 7 -

177. Defendants 'did not prepare a programmatic EIS for the Projects.

178. With regard to the Project, Defendants? failure to prepare a programmatic
EIS for the Projects was contraryto NEPA and arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with law as required by the APA.

179. Plaintiffs, their respective members, and other members ofthe public have been 
harmed as a result of Defendants? violations of NEPA and the APA because they have been
denied the benefits and protections provided by compliance with those laws. By way of

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ICase -WVG Document 1 Filed 12/27/10 Page 43 of 68

example and without limitation, Plaintiff, its members, the public, and the decision-makers who
approved and are carrying out the Project were not fully informed about the programmatic
impacts of, mitigation measures for, and alternatives to the Projects prior to the decision to
approve and carryout the Project. I
. TWENTY-NINTH CLAIM: .
Violation of Federal Land Policy and Management Project
(Against All Defendants except Lee, Trost, and Goodro)

180. Paragraphs 1 through 179 are fully incorporated into this paragraph. 7
- 181. FLPMA Section 30'2(b) provides as follows: ?In managing the public lands, the
Secretary shall, subject to this Act and other applicable law and under such terms and conditions
as are consistent with such law, regulate, through easements, permits, leases, licenses, published

rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and

development of the public lands, including, but not limited to, long-term leases to permit

individuals to utilize public lands for habitation, cultivation, and the development of small trade

or manufacturing concerns: Provided, That unless otherwise provided for by law,lthe Secretary .
may permit Federal departments and agencies to use, occupy, and develop public lands only
through rights-of-way under section 507 ofthis Act, withdrawals under section 204 ofthis Act,
and, where the proposed use and development are similar or closely related to the programs of
the Secretary for the public lands involved, [cooperative agreements under subsection of
section 307' of this Act: Provided further, That nothing in this Act shall be construed as
authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands
or on lands in the National Forest System and adjacent waters or as enlarging or diminishing
the responsibility and authority of the States for management of fish and resident wildlife.
However, the Secretary concerned may designate areas of public land and of lands in the
National Forest System where, and establish periods hunting or fishing will be
permitted for reasons of public safety, administration, or compliance with provisions of
applicable law. Except in emergencies, any regulations ofthe' Secretary concerned relating to
hunting and fishing pursuant to this section shall be put into'effect only after consultation with
the appropriate State fish and game department. Nothing in this Act shall modify or change any 

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 43

 

 





provision of Federal law relating to migratory. birds or to endangered or threatened species.
Except as provided in section 314, section 603, and subsection ofsection 601 ofthis Act and
in the last sentence ofthis paragraph, no provision ofthis section or any other section ofthis Act
shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims
under that Act, including, but not limited to, rights of ingress and egress. In managing the
public lands the Secretary shall,? by regulation or otherwise, take any action necessary to prevent
unnecessary or undue degradation of the lands.?

182. FLPMASection 601(?d) provides as follows: ?The Secretary [of the Interior], in
accordance. with section 202 ofthis Act, shall prepare and implement a comprehensive,'long-
range plan for the management, use, development, and protection ofthe public lands within the
California Desert Conservation Area. Such plan shall take into account the principles of
multiple use and sustained yield in providing for resource use and development, including, but
not limited to, maintenance of environmental quality, rights-of-way, and mineral development.
Such plan shall be completed and implementation there-ofinitiate?d on or before September 30,
1980.?

183. FLPMA Section, 601(f) provides as follows: ?Subject to valid existing rights,
nothing in this Act shall affect the applicability ofthe United States mining laws on the public
lands within the California Desert Conservation Area, except that all mining claims located on
public lands within the California Desert Conservation Area shall be subject to such reasonable
regulations as the Secretary may prescribe to-effectuate the purposes ofthis section. Any?patent

issued on any such mining claim shall recite this limitation and continue to be subject to such

regulations. Such regulations shall provide for such measures as may be reason-able to protect 

.the scenic, scientific, and environmental values of the public lands ofthe California Desert

Conservation Area against undue impairment, and to assure against pollution of the streams and

waters within the California Desert Conservation Area.? - 

.184. Defendants have not complied with FLPMA as it relates to the Project 

even though it is located on federal (public) land and is within the California Desert

Conservation Area and subject to the CDCA Plan.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 44 

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t?I r?n b?l n?h?o u?s b?I.o?A




 

 

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185. Defendants? failure to comply with the Plan'and take all action necessary
to prevent Unnecessary or undue degradation of the federal (public) land affected when they
approved 'the Project was contrary to FLPMA and arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law as required by the APA. I

186. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of'Defendants? violations of FLPMA and the APA because they have been 
denied the benefits and protections provided by compliance with those laws. By way of
example and without its members, and the public will have to endure
unnecessary or undue degradation ofthe federal (public) land affected by the Project and
will lose the protections provided for this land by the CDCA Plan. I

. THIRTIETH CLAIM: .
Violation of Native American Graves Protection Repatriation Project
(Against All Defendants except Lee, Trust, and Goodro)

187. Paragraphs 1 through 186 are'fully incorporated into this paragraph.

188. Section? 3(b) of the NAGPRA provides as follows: ?Native American cultural
items not claimed under subsection ofthis section shall be disposed ofin accordance with
regulations promulgated by the Secretary [of the Interior] in consultation with the review
committee established under section ofthis [Act], Native American groups, representatives
of museums and the scientific community.? I

189. Section 3(0) ofthe NAGPRA provides as follows: ?The intentional removal from

or excavation of Native American cultural items from Federal or tribal lands for purposes of

- discovery, study, or removal of such items is permitted only if--

$0011 items are excavated or removed pursuant to a permit issued
under section 470cc ofTitle l6 [ofthe  Code] which shall be consistent with
this [Act]; 

suchitems are excavated or removed after consultation with or, in the
case of tribal lands, consent of the appropriate (if any) Indian tribe or Native

Hawaiian organization;

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

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Case -WVG Document 1 Filed 12/27/10 Page 46 of 68

the ownership and right of control of the disposition of sach items
shall be as provided in subsections and of this section; and

proof of consultation or consent under paragraph (2) is

shown.? .

190. Defendants? approval of the Project will result in the intentional
excavation, disposal, ?or other remdval of Native American cultural items (including human
remains) known to be or strongly suspected of being on the site of the Project without
compliance with the conditions necessary for excavation, disposal, or other removal. By way
of example and not limitation, Defendants have not consulted with or obtained the consent of
the Indian tribe whose, cultural remains or located on the site of the Project; 

I 191.. Defendants? failure, to consult with and obtain the consent of the appropriate
Indian tribe prior to excavating, disposing of, or otherwise removing Native American cultural
items (including human remains) known to be or strongly suspected of being on the site of the
Project was contrary to the NAGPRA and arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law as required by the APA.

192. Plaintiffs, their respective members, and other members ofthe public have been
harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have
been denied the benefits and protections provided by compliance with those laws. By way of
example and without limitation, Plaintiff, its members, and the public (including the appropriate
Indian tribe) will have to endure the excavation, disposal, or other removal ofNative American
cultural items (including human remains) located .on the site ofthe Project without the

necessary consultation and consent prior to Defendants? approval of the Project.

[This space is intentionally blank]

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 46

 

 






 

Case -WVG Document 1 Filed 12/27/10 Page 47 of 68

PRAYER FOR RELIEF
FOR ALL THESE REASONS, Plaintiffs respectfully pray for the following relief,
conjunctiver or disjunctiver as the Court determines to be appropriate, against Defendants
(and any and all other parties 'who may oppose Plaintiff in this proceeding):
A. On the First, Sixth, Eleventh, Sixteenth, Twenty?First, and Twenty-Sixth Claims:

1. For each of the Projects, a judgment or other final order determining or
declaring that Defendants failed to comply fully with the NHPA and the APA as they relate to
the Project (including all associated entitlements and leases) and that the Project?s approval was -
illegal in atleast one respect, rendering the approval null and void;

2. For each of the Projects, a judgment or other final order determining or
declaring that Defendants must fully comply with the NHPA and the APA before final approval
ofthe Project may be granted; and 

3. For each ofthe Projects, injunctive reliefprohibiting Defendants (and any
and all persons acting at the request of, in concert with, for the benefit of, in privity with, or
under one or more of them) from taking any action on any aSpect ?of, in furtherance of, or
otherwise based on the Project unless and until Defendants fully comply with all applicable
provisions ofthe NHPA and the APA, as determined by the Court.

B. On the Second, Third, Seventh, Eighth, Twelfth, Thirteenth, Seventeenth,
Eighteenth, Twenty-Second, Twenty-Third, Twenty-Seventh, and Twenty-Eighth Claims:

1. I For each of the Projects, a judgment or other final order determining or
declaring that Defendants failed to comply fully with NEPA and the APA as? they relate to the
Project (including all associated entitlements and?leases). and that the Project?s approval was
illegal in at least one respect, rendering the apprOval null and void;

2. For each of the Projects, a judgment or other final order determining or
declaring that Defendants must prepare an EIS forthe Project fully in accordance with NEPA
and the APA before final approval of the Project may be granted; and 

3. For each ofthe Projects, injunctive reliefprohibiting Defendants (and any

and all persons acting at the request of, in concert with, for the benefit of, in privity with, or

Page 47

COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC.

 

 

 

 



woodcut):th



 

 

-WVG Document 1 Filed 12/27/10 Page 48 of 68

under one Or more of them) from taking any action on any aspectof, in furtherance of, or
otherwise based on the Project unless and until Defendants fully comply with all applicable
provisions of NEPA and the APA, as determined by the Court. .

C. On theuFourth, Ninth, Fourteenth, Nineteenth, Twenty?Fourth, and Twenty-Ninth

Claims:

1. For each ofthe Projects, a judgment or other final order determining or
declaring that Defendants failed to comply fully with FLPMA and the APA as they relate to the
Project (including all associated entitlements and leases) and that the Project?s approval was
illegal in at least one respect, rendering the approval null and void;

I 2. For each of the Projects, a judgment or other final order determining or

declaring that Defendants must fully comply with FLPMA and the APA before final approval .

ofthe Project may be granted; and

3. For each of the Projects, injunctive relief prohibiting Defendants (and any
and all persons acting at the request of, in?concert with, for the benefit of, in privity with, or
under onelor more of them) from taking any action on' any aspect of, in furtherance of, or
otherwise based on the Project unless and until Defendants fully comply with all applicable
provisions and the APA, as determined by the Court.

. D. On the Fifth, Tenth, Fifteenth, Twentieth, Twenty-Fifth, and Thirtieth Claims:

For each of the Projects, a judgment orvother final order determining or
declaring that Defendants failed to comply fully with the NAGPRA and the APA as they relate

to the Project (including all associated entitlements and leases) and that the Project?s approval

was illegal in at least one respect, rendering the approval null and void;

2. For each of the Projects, a judgment or other final order determining or

declaring that Defendants must fully comply with the NAGPRA and the APA beforefinal

approval of the Project may be granted; and
3. For each ofthe Projects, injunctive relief prohibiting Defendants (and any

and all persons acting at the request of, in concert with, for the benefit of, in privity with, or

under one or more of them) from taking any-action on any aspect of, in furtherance of, or

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 48

 

 

 



Case -WVG Document 1 Filed 12/27/10 Page 49 of 68

otherwise based on the Project unless and until Defendants fully comply with all applicable

provisions ofthe NAGPRA and the APA, as determined by the Court.

B. All legal fees. and other expenses incurred in connection with this proceeding,

including but not limited to reasonable attorney fees as authorized by law; and

F. Any and all further relief that this Court may deem appropriate.

Date: December 27, 2010.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC.

By:

Respectfully submitted,
BRIGGS LAW CORPORATION



6.. f) 1
Cory  .

Attorneys for Plaintiffs La Cuna de Aztlan Sacred-

Sites Protection Circle Advisory Committee,
CAlifornians for Renewable Energy, Alfredo Acosta

. Figueroa, Phillip Smith, Patricia Figuerba, Ronald

Van Fleet, and Catherine Ohrin-Grelpp

Page 49

 

 

 

 

Case -WVG Document 1 Filed 12/27/10 Page 50 of 68

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS
RELIEF UNDER THE ADMINISTRATIVE PROCEDURES ACT, THE
NATIONAL HISTORIC PRESERVATION ACT, THE NATIONAL
ENVIRONMENTAL POLICY ACT, THE FEDERAL LAND POLICY AND I
MANAGEMENT ACT, AND THE NATIVE AMERICAN GRAVES
PROTECTION AND REPATRIATION ACT

Exhibit 

 

 

 

Case -WVG Document 1 Filed 12/27/10 . Page 51 of 68

Amendment No.1 to Memorandum of Understanding .
Between . 
United States Department of the Interior
Bureau of Land. Management
.- . . andthe, s;  ,i
Southern Low Desert Resource Conservation and Development Council .. 

This Amendment No. modi?es thecurrentMemorandum elf-Understanding (MOD) that
was signedby the Bureau of. Land Management (BLM) andthe SouthernLow Desert

- Resource Conservationand DevelopmentObuncil-(Cpuncil) in July 2006'-tolnclude the; La
Cuna' '_de Aztlan sacred Sites Protection Circle Advisory. Committee the I
Area Chamber of Commerce and Tourist Information Center (Chamberi-inthe 

partnership for protection of cultural resources in the BLM Yuma Field Of?ce planning area.?

Section Definitions" is amended as follows:

ELM: .The- Bureau of_ Land Management?s Yuma Field Of?ce, which has a
management responsibility for the public-land area covered-under this MOU.

8. Council: The Southern Low. Desert Resource Conservation and Development
Council (a 501(c)(3) non-pro?t! community . . I
development organizationrd. spore irce-A vlso i"

    

I ?Section ?ill. Statement of MDU i5urpose? is amended as follows:

This Memorandum of Understanding (MOU) will provide a means for mom .
to workin partnership to enhance cultural resources protection.
conservation, and interpretation efforts on ELM-lands within the Yuma- Field Of?ce's
Jurisdiction and the Southern Low Desert R0820. area. The purpose-of this-:MOUis to assist
the BLM with its responsibilities under Section 110 of the National Historic Preservation Act
z" -- a  

The ELM.  agree that all projects conducted under this 
MOU will be carried out by qualified, specialists. Contractors'hired for projects must meet

 

Page 1? 014

 

 

 

 

Case -WVG Document 1 . Filed 12/27/10 Page 52 of 68

ELM-standards; Projects that?may be conductedunder-thls' MOU include hitters not limited

to cultural resources survey, archaeological site recordation. National Register of Historic
Places nominations, ethnographic studies with interested Native American tribes, design"

and installation of site protection and interpretation measures, and the production of it

interpretivegmaterlals for the public. All projects will be coordinated with and approved by

the BLM. . -  - -

The  have a common ?objective of helping to bring, .
about the conservation. development. and wise use of archaeological and historical 
resources in the southeastern California desert area. Therefore, teatime-8W.

WW deem this' effort of mutual bene?t to both g?vpartles. We

herebyagreeasfollows:  

 The Council agrees to:

1. .Work cooperatively with coordinate and facilitate the development of
plans for the conservation. protection., and interpretation of desert resources.
Speci?cally. the Council?ag'rees to diligently work and 
future protection of cultural resources. including the lntagllos. for the
public good. . - 

I 2. Assist with any environmental documents deemed necessary for-the completion
of joint projects within the mutual boundary of the Council and BLM. - 

3. Provide a public outreach programtc encourage and promote active publlc_ 
. participation .in the protection of desert resourcesthe solicitation of funds and egenciesto" . I
complete agreed upon projects or Work Items mutual boundaries of the
.BLM and the Council. 

- work googeratlvely w" to coordinate and eating tg thie'ggyelogmegt sets it an: i -- 
complete-agree uggn grgiggts or wgzig heme: .

. Page2 'of4

 

 

 

Case -WVG Document 1 Filed 12/27/10 Page 53 of.68

 The Chamber egress to: i . 
1. Work cooperatively with to Coordinate end fagillggig the gene lggment of

9- - I: - ce

   

Speci?cally. the thmber agrees tordiligently work toward the im_medigte'end
future protection of chum] a, ithuding the Eiythe fertile.

MW

 

 

3, Assist in the solicitation of funds from outside organizations ?nd to
'comg iete agreed upon projects or work items. . 

agrees to:

Work cooperatively with-the on projects of mutual benefit to We
Geese? the M09 gig hgto?es. -

2. Provide technical and planning assistance for projects of mutual bene?tto the I
WMOU signatoriesinitiate any environmentelessessment documents deemed necessary for the

completion of any agreed upon joint projects 
EIH.IH .L ..

4. Assist with the preparation of statements of work and hiring of contractors to
complete the agreed upon projects. -

5. Cooperate and assist (when appropriatei with seeking funds to complete agreed
upon joint projects. -

Section Terms of the is amended as toiiows:

A. The following individuals?are designated as the liaison between 

1. Bureau of Land Management

- Yuma Field Office
T. Shoaff. Fieid Manager
2555 Gila Ridge Road  - 
Yuma. AZ 85365 
PH (928) 31?-?3200
FX: 928-317-3250

2. Southern Low Desert Resource Conservation 8: Deveiopm?ent Council
Thomas Burgin, President i - 
53990 Enterprise Way, 68 .

Page 3 01?4-

 

 

 

Case -WVG Document 1 Filed 12/27/10 Page 54 of. 68

Coachella, CA 92236
760-391-9002
760-691-9813 

     

I Alfre 913.- igerge  

Escugla de la Razg unidg
W.
PH: (760) 922-6?; . - 
E-mall: lacunadge?lgn?aoiggm
4. Area Chamber of Comm. erge end Tout List information" Center
Li'imSHinBroadway 
CA 92225
mega-4919 
E?mgii; gly?tnecocfgyanoogom
B. I-Nothino herein is intended to con?ict with existing ELM. Departmentof the interior
orders. or Council directives. if any terms or conditions of this MOU are inconsistent

with existing BLM orders or Council directives, those portions of this MOU'ere
- invalidSigning. below. the-?partners show their agreement-to MOU Amendment No; 1 as-
described in this document. .. . - 

Thomas Burgin, President oftheSoUthern Low Desert Resource Conservation and
Development Council. - A - I 

Signed:  Date in? a 2068'
Alfredo. Figueroa. La Cuna'de Aztlan Sacred Sites Protection Circle Advisory Committee;
Signed? -  .  Date gzg?. ?g ,355)  I

Jim Shipiey, Area rnber of Commerce and Tourist information Center.

nae/5%; ,3 Rwy-g

I of the Boreou of Land Management Yurne Field Office.
. Dete art/mat l?-i ?00?

 

    
 
  
 

. 

James T-. 

Signed:

 

Page 4' 07,4 -

 

 

 

Case -WVG Document 1 Filed 12/27/10 Page 55 of 68

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS
RELIEF UNDER THE ADMINISTRATIVE PROCEDURES ACT, THE
NATIONAL HISTORIC PRESERVATION ACT, THE NATIONAL 
ENVIRONMENTAL POLICY ACT, THE FEDERAL LAND POLICY AND
MANAGEMENT ACT, AND THE NATIVE AMERICAN GRAVES
PROTECTION AND REPATRIATION ACT

Exhibit 

 

 

 

 

 

-, - .. .4 xu-P 

with  

?3

BLM2009 National Land Use Planning Conference
?Keeping Pace with Change?

 

 ndi ng Lan   5e 

Case -WVG Document 1

 


a
Q.






FL
0 

 

 

 

Session @verview 
 Programmatic ElSs and Tiering (S. Stewart)
BLM Programmatic ElSs (S. Stewart)
Programmatic ElSs Lessons Learned (K. Winthrop)

Programmatic vs. Site?Specific ElSs 

 

Case -WVG Document 1

Filed 12/27/10 Page 57 of 68

 

 

 

 

 

What is a Progr:_mmatic  
EIS CEQ regUIations do not define the term
?Programmatic Analyses? separately.

40 CFR 502.4(b) ElSs may be prepared for broad
 Federal actions such'as the adoption of new agency
programs or regulations. 

40 CFR 1502.4(c) When preparing statements on- 
broad actions agencies may find it useful to evaluate
proposals in one of the following Ways: 
- Geographically, actions occurring in the same general-location
- Generically, actiOns that have relevant similarities 
- By Stage of technological development

  

 

 

Case -WVG Document 1

Filed 12/27/10 Page 58 0f 68

 

 

Ty?pes Actions that PEISS 514999?-

Adopting Official Policy
0 National?level rulemaking
0- AdoptiOn of agency?wide policy

9 *AdOpting Formal Plan
0 Adoption of an agency plan for a group of related projects

a Adopting Agency Program-
0 A new agency mission orinitiative'
Redesign of existing programs

?p-Approving Site?Wide or Area?Wide Actions 

0 Similar actions in a region .
0 Multiple actions that share a c0mmon geOgraphy or timing

  

 

*Case -WVG Document 1

Filed 12/27/10 Page 59 0f 68

 

 

 

 

 


Used for broad geographic areas 

a'Assess impacts across a span of conditions (facilities,
geographic regions or multi?project programs)

Emphasize cumulativeimpacts

a Emphasize policy. level alternatives

EmphaSize program level mitigation measures and?BMPs
5 Do not define facilitiesor specific sites

Tend to be more generic and conceptual than project?-
specific ElSs

  
 

Case -WVG Document 1

Filed 12/27/10 Page 60 of 68

 

 

 

Tiering 

In cases where a broad policy, plan, 'program or
project will later be translated into site?specific
projects, subsequent analyses are referred'to as
?tiered? analyses. - 

.40 CFR 1508.28 ?Tierihg? refers to the coverage
of general matters in a broader EIS with subsequent
narrower ElSs. or EAs incorporating-by reference the
- general'discussiOns andconcentrati'ng solely on the
issues specificto the statement'subsequently
prepared. 

 

 

"Case -WVG Document 1

Filed 12/27/10 Page 61 of 68

 

 

 

 of   
Focus on issues ripe for decision at each leVelof
environmental review (40 CFR 1502.20)

Opportunity to evaluatepotential cumulative
impacts of the reasonably foreseeable actions
under aprogram (40 CFR 

Reduce paperwork (40 CFR 1 500.4)
Reduce delay (40 CFR 1 500.5) 
Opportunity to prepare for indiViduaI

actions-when there are no new significant impacts .

(NEPA Handbook 5.2.2)

  

 

Case -wvo Document 1

Filed 12/27/10 Page 62 of 68

 

 

 

 

 Challenges

Scope I

Content

Specificity of Analysis

Alternatives 

Addressing Deferred Issues

Handling Proposals while Preparing a PEIS

 

 

Case -WVG Document 1

Filed 12/27/10. Page 63 of 68

 

 

   

 

solo
-., 

pl

- ?are,  . a (-0 wk, ?90;  

AA, . I V995 
,4994 .Wind Energy 
AZAmend 52 land use plans to identify
lands suitable for wind energy
development ROW applications (no
plans amended in AZ or CA).

BLM

Inky-I rt- . . ywo?c?o?g 9? 
enc r= 
-. ., t?A

ROD signed
December, 2005

 

 

Oil Shaleand Tar sands
CO, UT, WY

Amend 10 land use plans to allocate
lands suitable for consideration of?
leasing proposals.

BLM

ROD signed
November, 2008

 

Geothermal Leasing
AKAmend 114 land use plans to identify
lands as open or closed to geothermal
leasing and to adopt stipulations,
BMPs and procedures for leasing.

BLM, FS

ROD signed
December, 2008

 

West-Wide Energy
Corridors

AZ, CA, .00Amend'130 land use plans to
designate energy transport corridors
on federal lands suitable for proposed
pipeline and transmission line ROW
applications.

BLM, FS, DOD,
DOE, FWS, NPS

signed
January, 2009
(BLM, FS)

 

Solar Energy
Development
AZ, CA, CO, NM, NV, UT

 

Goal'is to amend land use plans to
identify lands suitable for solar energy
development ROW applications.-

BLM

 

 

Draft PEIS scheduled

for Summer, 2009

 

 

 

 

 

 

 

 

Filed 12/27/10 Page 64 of 68

Case -WVG Document 1

 

 

 

 

- Allocate lands as open or closed to leasing or right?of
way authorizations; designate energy transport
corridors 

5 Develop a reasonably foreseeable development scenario

Adopt stipulations, BMPs, mitigation measures-and
Interagency operating procedures applicable to future
projects. - a

AdOpt standard processes and procedures for leasing or
rig ht?of way-authorizations

Amend BLM land use plans-toadopt all of the above 

  

Case -WVG Document 1

Filed 12/27/10 Page 65 of 68

 

 

 

 

 

I

all

ELM  Implementation

do not authorize any on?the?ground activities -
or waive environmental review for subsequent
individual actions. - -

a All future development projects must be in
conformance with theexisting land use plan as

amended.

0 Land use plan amendments via a adopt the resource 
allocations, reasonably foreseeable development?scenario,
stipulations, BMPs and procedures.

a Site?specific concerns and the development of
additional mitigation measures will be addressed in
project?level reviews tiered to the analysis in the PEIS.

  

 

Case 3

-WVG Document 1

Filed 12/27/10 Page 66 of 68

 

Ca H-WVG Documeriti Filed12/27/1O Page 67 of 68
N344 (Rev. -

CIVIL COVER SHEET - 

The 18 44 cover sheet and the information contained herein neither re lace nor sugplement the ?ling and service hfpleadtn or other papers as reamed by law.? except as prov1ded

 

by local rules of court. This form, approved by the Judicial Conference 0 the United tales in September 1974, is required fort use oft rk of the purpose of initiating
the ctvtI docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) 3  
I. PLAINTIFFS DEFE-NDANTS - i? i? 

La Cuna do Aztlan Sacred Sites Protection. Circle Advisory
- Committee at al. 

County of Residence of First Listed Plaintiff San Diego
(EXCEPT IN U.S. PLAINTIFF CASES)

United States Depanww?tgmteimq H: 

County of Residence of Defendath S. tr? 1' I in 
(IN ?Uta? CASES diam)? l. t" 0 it A
NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE

LAND INVOLVED.
n. 


weasel 2 as i was

their

WW5

Attorney's (Firm Name. Address. and Telephone Number) 
Briggs Law Corporation, 99 East Street, Suite 111, Upland, 

 

 

 

 

 

 

 

 

 

 

 
  
  

      

 

II. BASIS OF JURISDICTION (Place'an in One Box Only) CITIZENSHIP 0F PRINCIPAL an in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 US. Government El 3 Federal Question PTF DEF DEF
Plaintiff (US. Government Not a Party) Citizen of This State El 1 I incorporated or Principal Place E) 4 CI 4
of Business In This State
3 2 US. Government El 4 Diversity Citizen of Another State CI 2 El 2 Incorporated and Principal Place El 5 CI 5
Defendant (Indicate Citizenship of Parties in Item orausmess In Anomer sum
Citizen or Subject of at - El 3 3 Foreign Nation CI 6 CI 6
I Foreign Country 
IV. NATURE OF SUIT (Place an in One Box Only.Togrs m: I t- . - . 9513531.)qu 
El 110 Insurance PERSONAL INJURY PERSONAL INJURY CI 610 Agriculture Cl 422 Appeal 28 USC l58 Cl 400 State Reapportionment
CI 120 Marine Cl 3l0 Airplane 362 Personal Injury - 620 Other Food Drug CI 423 Withdrawal CI 410 Antitrust
CI ISO Miller Act [3 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking
CI 140 Negotiable Instrument Liability Cl 365 Personal Injury - of Property 21 USC 881 - 450 Commerce
CI 150 Recovery of Overpayment I3 320 Assault. Libel EL Product Liability CI 630 Liquor Laws El 460 Deportation
Enforcementof Judgment Slander El 368 Asbestos Personal CI 640 R.R. 3r. Truck I3 820 Copyrights CI 470 Racketeer Influenced and
CI [51 Medicare Act El 330 Federal Employers? Injury Product CI 650 Airline Regs. CI 830 Patent Corrupt Organizations
Cl [52 Recovery of Defaulted Liability - Liability CI 660 Occupational 840 Trademark 480 Consumer Credit
Student Loans CI 340 Marine PERSONAL PROPERTY Safety/Health El 490 CabIeISat TV
(Excl. Veterans) Cl 345 Marine Product CI 370 Other Fraud 690 Other El 819 Selective Service
153 Recovery of Overpayment Liability CI 371 Truth in Lending -- - . . CI 850 Securities/Commodities!
of Veteran's Benefits 350 Motor Vehicle [3 380 Other Personal CI 710 Fair Labor Standards CI 861 HIA ([395ft) Exchange
El 160 Stockholders' Suits CI 355 Motor Vehicle Property Damage Act CI 862 Black Lung (923) CI 876 Customer Challenge
CI 190 Other Contract Product Liability El 385 Property Damage El 720 Labor/Mgmt. Relations CI 863 (405(3)) 12 USC 3410
El 195 Contract Product Liability Cl 360 Other Personal Product Libility 730 Labor/Mgmt.Reporting CI 864 SSID Title XVI CI 890 Other Statutory Actions
CI I96 Franchise Injury Disclosure Act El 865 RSI 405 891 Agricultural Acts .
I -- REAL PROPERTY A CIVIL PETITIONS El 740 Railway Labor Act FEDERAL CI 892 Economic Stabilization Act
210 Land Condemnation El 441 Voting CI 510 Motions to Vacate Cl 790 Other Labor Litigation [3 870 Taxes (US. Plaintiff 893 Environmental Matters
CI 220 Foreclosure 442 Employment Sentence El 791 Empl. Rot. Inc. or Defendant) 894 Energy Allocation Act
CI 230 Rent Lease 8t. Ejectment 443 Housing! Habeas Corpus: Security Act 871 IRS?Third Party El 895 Freedom of Information
CI 240 Torts to Land Accommodations 530 General 26 USC 7609 Act 
El 245 Tort Product Liability El 444 Welfare Cl 535 Death Penalty IMMIGRATION El 900Appeal of Fee Determination
Cl 290 All Other Real Property Cl 445 Amer. w/Disabilities - CI 540 Mandamus Other CI 462 Naturalization Application Under Equal Access
Employment 0 550 Civil Rights 463 Habeas Corpus - to Justice
CI 446 Amer. w/Disabilities - 555 Prison Condition Alien Detainee El 950 Constitutionality of
Other CI 465 Other Immigration State Statutes
440 Other Civil Rights Actions

 

 

 

 

 

 

 

 

 

V. ORIGIN (Place an in One Box Only) cai?to Dismc?
81 Original [3 2 Removed from 3 Remanded from 4 Rainsmted 0' 5 ngi?liggrdisdtrigim 6 M-u-Md-isma 7 Muagiesn'riagq]
Proceeding State Court Appellate Court Reopened . a? ecim Litigation Judgment

 

VI. CAUSE OF ACTION

VII. REQUESTED IN
COMPLAINT:

3001 et. seq.

 

Declare ory.

 

Brief description of cause: 
an

El CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23 

RELATED 

(See instructions):

0 Mandamus 

DEMAND 

JURY DEMAND:

 

CHECK YES only if demanded in complaint:

Yes i No

 

 

 

IF ANY JUDGE Larry A. Burns DOCKET NUMBER (CAB)
DATE SIGNATUR OF ATTORNEY OF RECORD
12/27/2010 ,1 #44 a
FOR OFFICE USE ONLY I

AMOUNT i Ego/)9 APPLYINGIFP . 

A 61/

iZ-Z?-l0

JUDGE

MAG. JUDGE



 

 

Case -WVG Document 1 Filed 12/27/10 Page 68 of 68-

Court Name: 0300 California Southern
3

.Racetpt Number: CA8021574

Cashter ID: nstefken

Transactton Date: 12/27/2010

Payer Name: BRIGGS LAW CORP

 

LCIVIL FILING FEE 

For: LA CUNA 0E AZTLAN US DEPARTM . I
Case/Party: 
Amount: $350.00

 



CHECK i
Check/Money Order Num: 80414 1
Amt Tendered: $350.00 

 

Total Due: $350.00
Total Tendered: $350.00
Change Amt: $0.00

llhare be a fee of $45.00
charged for any returned check.