Your authoritative, multi-channel network for natural resources and environmental information since 1989 – by practioners for practitioners.

California Land Use Law & Policy Reporter

March 2014

Volume 23, Number 6 March 2014


Congress Precludes Army Corps of Engineers from Shifting the Regulation of Mining Tailings to the EPA159


State Water Board Begins Compliance With Governor’s Declaration of Drought Emergency by Issuing Notices of Possible Curtailment of Water Right Diversions and Orders to Streamline Water Transfers and Exchanges161

State Agencies Release Five-Year California Water Action Plan163


Circuit Court of Appeals:

Ninth Circuit Holds Idaho City Cannot Take Property Outside City Limits for Power System Expansion—Distinguishes Eminent Domain from Easement Acquisition165

Alliance for Property Rights and Fiscal Responsibility v. City of Idaho Falls, ___F.3d___, Case No. 12-35800 (9th Cir. Dec. 31, 2013).

In a Decision Addressing ‘Indian Lands’ and Gaming Rights the Ninth Circuit Perhaps Creates More Questions than Answers167

Big Lagoon Rancheria v. California, ___F.3d___, Case Nos. 10-17803, 10-17878 (9th Cir. Jan. 21, 2014).

Ninth Circuit Denies En Banc Hearing Request and Upholds Denial of Preliminary Injunction Involving Permit for Oyster Farming at Point Reyes National Seashore169

Drakes Bay Oyster Company v. Jewell, ___F.3d___, Case No. 13-15227 (9th Cir. Sept. 3, 2013); (petition for hearing en banc denied and opinion amended Jan. 14, 2014).

Ninth Circuit Concludes Department of Interior’s Approval of Oil and Gas Leases Fails to Comply with NEPA171

Native Village of Point Hope, et al. v. Jewell, ___F.3d___, Case No. 12-35287 (9th Cir. Jan. 22, 2014).

District Court:

District Court Concludes that NEPA Analysis Is Not Required for Small, ‘Independent’ Portion of Larger Highway Project172

Black Warrior Riverkeeper, Inc. v. Alabama Department of Transportation, ___F.Supp.2d___, Case No. 2:11-CV-267-WKW (M.D. Ala. Jan. 17, 2014).


District Court of Appeal:

Second District Court Finds Los Angeles County’s Clean Water Act MS4 Permit Requirements Are ‘Federal Mandates’ Not Refundable by State175

California Department of Finance v. Commission on State Mandates, ___Cal.App.4th___, Case No. B237153 (2nd Dist. 2013).

Fourth District Court Concludes that Creation of a New Zone for Senior Residential Housing Is Permissible Spot Zoning177

Foothill Communities Coalition v. County of Orange, ___Cal.App.4th___, Case No. G047326 (4th Dist. Jan. 13, 2014).

Second District Court Confirms Coastal Commission’s Permitting Authority—Finds Commission Did Not Err in Finding in Violation of Coastal Act178

Hagopian v. State of California, ___Cal.App.4th___ Case No. B240688 (2nd Dist. Jan. 27, 2014).

First District Court Finds Aircraft Overflight Easement Condition Does Not Constitute a ‘Taking’ of Property without Payment of Just Compensation180

Powell v. County of Humboldt, ___Cal.App.4th___, Case No. A137238 (1st Dist. Jan. 16, 2014).

Fifth District Court Confirms that Challenges to Local Agency Formation Commission Approvals Are Subject to Reverse Validation Statute182

Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission, ___Cal.App.4th___ (5th Dist. Jan. 28, 2014).

Second District Court Finds Landowner’s Suit for Water Service Fatal Due to Procedural Defects184

Tejon Real Estate, LLC v. City of Los Angeles, ___Cal.App.4th___, Case No. B247255 (2nd Dist. Jan 22, 2014).