LAURENS H. SILVER (SBN 55339)

CALIFORNIA ENVIRONMENTAL LAW PROJECT

302 Sycamore Avenue

Mill Valley, California  94941

Telephone: (415) 383-5688           
Facsimile: (415) 383-7995

 

Attorney for

SIERRA CLUB

 

 

Law office of Donald B. Mooney

DONALD B. MOONEY (SBN 153721)

129 C Street, Suite 2

Davis, California  95616

Telephone:  (530) 758-2377

Facsimile:   (530) 758-7169

 

Attorney for

OWENS VALLEY COMMITTEE

 

 

 

 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

FOR THE COUNTY OF INYO

 

 

 

SIERRA CLUB, and OWENS                   )           Case No.:                                

VALLEY COMMITTEE                           )

                                                                     )

                     Plaintiffs                                    )           COMPLAINT FOR DECLARATORY

                                                                     )           AND INJUNCTIVE RELIEF

         v.                                                         )          

                                                                     )          

CITY OF LOS ANGELES; and LOS        )          

ANGELES DEPARTMENT OF                )

WATER AND POWER                            )          

                                                )          

                        Defendants                               )          

                                                                  )          

                                                                     )          

COUNTY OF INYO; CALIFORNIA       )

DEPARTMENT OF FISH AND               )

GAME; CALIFORNIA STATE                )

LANDS COMMISSION, and CARLA     )

SCHEIDLINGER                                      )

                                    )          

                  Real Parties in Interest. )          

 

                                                                                

        

 

INTRODUCTION

      1.         Plaintiffs bring this lawsuit to enforce a term of a Memorandum of Understanding (“MOU”), entered into by the County of Inyo, the City of Los Angeles Department of Water and Power (“City” or “LADWP”), the Sierra Club, the Owens Valley Committee, the California Department of Fish and Game, the State Lands Commission, and Carla Scheidlinger, requiring the City to prepare a draft environmental impact report (“EIR”) for the Lower Owens River Project (“LORP”) by June 13, 2000.  The City, without proper cause, has failed to complete the draft EIR, despite an agreement of the parties to extend the time for completion of the draft EIR through October 26, 2001.  The City has breached of its obligation under the MOU, and has requested yet another extension of time through February 18, 2002, which the other signatories of the MOU have not consented to.  This suit seeks an order from the Court requiring the City to comply with its obligations under the MOU to prepare and circulate a draft EIR, and declaring that the City, without just reason, and for reasons that are not beyond its control, is in breach of its MOU obligation. 

PARTIES

      2.         Plaintiff Sierra Club is a California nonprofit membership organization incorporated under the laws of the State of California in 1892.  Currently, the Sierra Club has approximately 500,000 members, approximately one-third of whom live in California.  The Sierra Club functions to educate and enlist people to protect and restore the natural and human environment, to practice and promote responsible use of the earth’s ecosystems and resources, to explore, enjoy, and protect wild places, and to use all lawful means to achieve these objectives.  Sierra Club is a party to the MOU that is the subject of this litigation, and was an amicus in the litigation between Inyo County and the City of Los Angeles with respect to the City’s augmented groundwater pumping program.  (Inyo County v. City of Los Angeles (1981) 124 Cal.App.3d 986; Inyo County v. City of Los Angeles (1977) 71 Cal.App.3d 185.)

      3.         Plaintiff Owens Valley Committee is California nonprofit corporation.  The specific purposes for which the Owens Valley Committee is organized are to monitor and oversee water management activities in the Owens Valley, to educate the public on local environmental issues, and to exercise the rights and obligations as a signatory to the MOU executed during the settlement of disputes related to preparation of an EIR on Groundwater Management in the Owens Valley.  The Owens Valley Committee was an amicus in Inyo County v. City of Los Angeles.

      4.         Defendant City of Los Angeles is a municipal corporation and political subdivision of the State of California.  The City exports surface water and groundwater from the Owens Valley for use in the City of Los Angeles. 

      5.         Defendant Los Angeles Department of Water and Power is a political subdivision of the City of Los Angeles.  The LADWP is a party to the MOU and is the lead agency under CEQA responsible for the preparation of the EIR for the LORP.

      6.         Real Party in Interest County of Inyo is a political subdivision of the State of California and a body corporate and politic exercising local government power.  Inyo County is a responsible agency under CEQA in connection with the Lower Owens River Project EIR.  The County of Inyo is a party to the MOU.

      7.         Real Party in Interest California Department of Fish and Game (“DFG”) is a political subdivision of the State of California.  DFG was an amici in Inyo County v. City of Los Angeles and a party to the MOU.

      8.         Real Party in Interest California State Lands Commission is a political subdivision of the State of California.  DFG was an amici in Inyo County v. City of Los Angeles and a party to the MOU.

      9.         Carla Scheidlinger is a resident of the Owens Valley and an amici in Inyo County v. City of Los Angeles.  Ms. Scheidlinger is a party to the MOU.

JURISDICTION AND VENUE

      10.       This Court has jurisdiction over the matters alleged in this Complaint for Declaratory and Injunctive Relief pursuant to Code of Civil Procedure sections 526, 527 and 1060.

      11.       Pursuant to Code of Civil Procedure section 394(a), venue is proper in this Court because LORP is being carried out and implemented within Inyo County.  Additionally, venue is proper in this Court, as the MOU Parties agreed that any action under the MOU would be brought in Inyo County Superior Court.

STATEMENT OF FACTS

12.    In 1972, the County of Inyo (“County”) sued the City of Los Angeles under the California Environmental Quality Act (“CEQA”), Public Resources Code, section 21000 et seq. to require LADWP to prepare an EIR on its groundwater pumping to supply LADWP’s second aqueduct from the Owens Valley.  The court directed LADWP to prepare an EIR.  Although LADWP issued EIRs in 1976 and 1979, the Third District Court of Appeals found both to be legally inadequate.

      13.       In October 1991, the County and LADWP approved the Inyo County/Los Angeles Long-Term Water Agreement (“Inyo-Los Angeles Agreement”) which is intended to provide environmental protection to the Owens Valley from the effects of groundwater pumping and water exports and to identify measures required to mitigate past and future damage to the environment of Inyo County as a result of groundwater pumping.  The Agreement provided a LORP project description and committed LADWP and the County to implement the LORP. 

      14.       In connection with LADWP’s augmented groundwater pumping project and the Agreement, LADWP and the County completed a third EIR in October 1991.  This Final EIR purported to address all water management practices and facilities associated with LADWP’s second aqueduct, and projects and water management practices identified in the Agreement.

      15.       Soon after its completion, the County and LADWP submitted the Final EIR and the Agreement to the Third District Court of Appeal with a joint request to discharge the writ of mandate.

      16.       Shortly thereafter, the Sierra Club, the OVC, DFG, and the State Lands Commission, who were participating in the litigation between the County and Los Angeles as amici, raised concerns about the legal adequacy of the third EIR.  In 1994, the Court of Appeals denied the County and City’s request to discharge the writ of mandate and ordered the County and LADWP to respond to the issues raised by the amici concerning the legal adequacy of the Final EIR.  After several years of negotiations, the parties executed the MOU which provided resolution of the concerns about the adequacy of the EIR, particularly concerns related to the adequacy of mitigation described in the EIR for impacts resulting from pumping and diversion activities in the Owens Valley from 1970 to 1990.  The MOU required the City to develop, plan and carry out a number of measures to mitigate the adverse effects of the City’s project.

      17.       The MOU includes provisions expanding the LORP, originally set forth in the Inyo-Los Angeles Agreement and the 1991 EIR.  The1991 EIR identified the LOPR as compensatory mitigation for significant adverse environmental impacts related to groundwater pumping by LADWP from 1970 to 1990 that were difficult to quantify.  The MOU specifies the goal of the LORP, timeframe for development and implementation, and specific actions.  It also provides certain minimum requirements for the LORP related to flows, locations of facilities, and habitats and species to be addressed.  Finally, the MOU requires LADWP and the County to prepare an EIR for the LORP and issue a draft EIR within 36 months of the effective date of the MOU (June 13, 2000), and provides that flows in the river must begin within 72 months of the effective date of the MOU (June 13, 2003).

      18.       On January 15, 1997, LADWP and the County, as parties in a long-standing dispute over an augmented ground-water pumping project in the County of Inyo carried out by the City, together with amici curiae California State Lands Commission, California Department of Fish and Game, Sierra Club, Owens Valley Committee and Carla Scheidlinger, submitted to the Court of Appeal the Memorandum of Understanding that had been agreed to by the parties and the amici.  A copy of the MOU is attached to this Complaint as Exhibit A.

      19.       In light of the execution of the MOU, the parties and the amici jointly moved the Third District Court of Appeals for discharge of the long-standing (since 1973) writ of mandate requiring the City to prepare a legally adequate EIR in connection with its augmented ground-water pumping project, first initiated in the early 1970s after completion of the City’s Second Aqueduct.

      20.       On June 13, 1997, the Third District Court of Appeals accepted the MOU as a final settlement, effectively ending twenty-five years of litigation and allowing the full provisions of the Agreement and the mitigation projects contemplated in the Final EIR and MOU to be implemented.  The Inyo-Los Angeles Agreement and MOU became effective upon discharge of the Court’s writ.          

      21.       As compensatory mitigation for adverse environmental impacts attributable to the City’s augmented ground-water pumping, the Lower Owens River Project includes the watering of a 60 mile stretch of the Lower Owens River channel below the aqueduct intake, the enhancement of environmental features along and near the river, and a pumpback facility near the Owens River Delta.  The MOU provides for the development and implementation of an ecosystem management plan for the Lower Owens River Project that incorporates multiple resource values and provides for management based upon holistic management principles with certain minimum flows established in the MOU.

      22.       A major component of the LOPR is a pumpback station.  The Inyo-Los Angeles Agreement specifies the pumpback station will have a capacity up to 50 cubic feet per second (“cfs”).         

      23.       Rewatering the Lower Owens River through the LORP will provide significant riparian and fresh water habitats as mitigation for the substantial and adverse environmental impacts of LADWP’s ground water pumping which began in 1970.  Assuring water for the Owens River Delta through the LORP will provide for the perpetuation and enhancement of the most significant marsh habitat remaining at Owens Lake.

      24.       The goal of the LORP is the establishment of a healthy and functioning Lower Owens River riverine-riparian ecosystem, and the establishment of healthy functioning ecosystems in the other physical features of the LORP.

      25.       There are four critical physical features of the LORP set forth in the MOU:

                  a.         A continuous flow will be established and maintained in the river channel from at or near the intake structure that diverts the Owens River into the Los Angeles Aqueduct, to the pumpback system located near the river delta.  A base flow of approximately 40 cfs from at or near the intake to the pumpback system to be maintained year round, as well as seasonal habitat flows of approximately 200 cfs during years of above-average flows.

                  b.         The establishment of the Owens River Delta Habitat Area, which is to enhance and maintain existing habitat consisting of riparian areas and ponds suitable for shorebirds, waterfowl, and other animals and to establish and maintain new habitat consisting of riparian areas and ponds suitable for shorebirds, waterfowl, and other wildlife and fishery resources within the Habitat Area.

                  c.         The maintenance and/or establishment of certain off-river lakes and ponds to sustain diverse habitat for fisheries, waterfowl, shorebirds, and other wildlife and fishery resources.

                  d.         Creation and maintenance of a 1500 acre Blackrock Waterfowl Habitat Area.

      26.       The MOU further requires that there be consultation with the MOU Parties, other agencies, and the public concerned with the development and implementation of the LORP plan throughout the development and implementation of the LORP plan.

      27.       The MOU requires LADWP, as the lead agency, and the County, as a responsible agency, to jointly prepare an EIR for the LORP.  The MOU requires that the draft EIR be completed by June 13, 2000, and a Final EIR be completed and presented for certification as soon as possible following the release of the draft EIR. 

      28.       The MOU requires LADWP to commence the baseflow of 40 cfs in the river channel by June 13, 2003, unless circumstances beyond LADWP’s control prevent the completion of the pumpback system and/or the commencement of the baseflow.

         29.       The MOU provides:

Extension of these deadlines may be granted by unanimous consent of the parties or due to circumstances beyond the control of DWP and/or the County.

 

      30.       Under the MOU’s dispute resolution provisions if any party is not reasonably discharging an obligation or performing a duty which the MOU requires, prior to commencing any litigation, the complaining party must notify all the other parties of the dispute and request in writing a meeting of the signatories to be held within 7 days to discuss the dispute and resolve differences.

      31.       Under the MOU, if a party reasonably believes that any other party has breached the MOU by failing to discharge an obligation or perform a duty required of it, it may institute an action for declaratory and injunctive relief in the Superior Court of Inyo County within 180 days of such breach. 

      32.       On January 14, 2000, LADWP released a Notice of Preparation of a Draft EIR for the Lower Owens River Project.

      33.       By letter dated February 15, 2000, Plaintiffs Sierra Club and the Owens Valley Committee submitted written comments on the Notice of Preparation.

      34.       On March 27, 2000, at LADWP’s request, the MOU parties agreed to extend the deadline for completing the draft EIR for the project from June 13, 2000, to September 30, 2000.  The extension provided for the draft EIR to be released on September 30, 2000.  A time extension document with that change was circulated and signed by representatives of the MOU parties in May 2000.

      35.       From March through October 2000, through correspondence and meetings, the MOU signatories discussed a number of issues concerning the LORP.  These issues mostly concerned the description of the project.  Principal areas of disagreement included the capacity of the pumpback station, the amount of the “seasonal habitat flows” to the delta, the goals for the delta (including the amount of “existing habitat”), the procedures and criteria for adjusting “base flows” to achieve the goals for the delta, and the amount of water under the MOU that is required to be made available to the Delta.  The Agreement provides for a 50 cfs pumpback capacity.  LADWP insisted that the project include a pumpback station of 150 cfs capacity rather than the maximum 50 cfs specified in the Agreement.  The significance of the difference is that the MOU provides for a period of high habitat flows in the river (200 cfs) in years with average or higher runoff to provide benefits for the river and delta.  The 150 cfs pumpback station would permit the recapture of nearly all the habitat flows before they reach the delta.  An additional concern is that the larger pumpback station would be a preliminary step in using the river as a conveyance for water from potential new well fields developed for water export.

      36.       On August 9, 2000, John Gray of URS Corporation (the LORP EIR consultant) prepared a document titled “Status of EIR/EIS Lower Owens River Project” in which he gave his estimate of the time needed to complete the draft EIR/EIS.  The schedule presented indicated the public draft EIR/EIS would be issued by late November to early December 2000, provided that the earlier timelines in his schedule were met.

      37.       LADWP did not complete the LORP Draft EIR by September 30, 2000, as required in the agreed upon time extension.  LADWP did not seek an extension of the September 30, 2000, deadline prior to September 30, 2000.  Nor did LADWP seek an extension any time prior to March 2001. 

         38.       By letter to the other MOU parties on October 9, 2000, Sierra Club stated that:

A deadline for completion of the LORP Plan should be agreed to by the MOU Group.  Additionally, the MOU required that the Draft LORP EIR be completed by June 13, 2000, a deadline extended by the MOU Group until Sept. 30, 2000.  Since that deadline has passed, it is also necessary for the MOU Group to agree on a new deadline for the Draft LORP EIR.  The Club proposes that the City and Inyo County consult with Ecosystem Sciences and the EIR consultant and present to the MOU Group reasonable deadlines for completion of these two documents.  This should be an important agenda item for the scheduled Oct. 16th MOU Group meeting.

 

      39.       Additionally, by letter to the other MOU parties on October 13, 2000, Sierra Club and Owens Valley Committee stated that:

The Sierra Club and Owens Valley Committee believe that the LORP ecosystem management plan (LORP Plan, required in Section II.A of the MOU) should be finalized now that the Department of Water and Power has submitted their recent LORP delta and pumpback station project description to the LORP EIR consultant (see 4 Oct. 2000 letter from Gene Coufal to MOU Parties).  As stated in its 9 Oct 2000 letter, the Sierra Club believes that project description violates terms of the MOU and the Inyo County-LA Water Agreement.  Nevertheless, the Sierra Club and Owens Valley Committee feel that the LORP EIR process should go forward.

 

      40.       At the October 16, 2000, meeting with the MOU Parties, LADWP failed to propose any deadlines for completing and circulating the draft EIR for the LORP.

      41.       By letter dated January 31, 2001, attorneys for the Sierra Club and Owens Valley Committee notified the City that the Sierra Club and the Owens Valley Committee deemed it to be in breach of the obligation under the MOU to prepare a draft EIR by September 30, 2000, and that it was in breach of other MOU obligations.  The letter stated in relevant part:

The MOU required that LADWP prepare a Draft LORP EIR by June 13, 2000.  Apparently because of disputes concerning the project description and a request by the EIR consultant, at the City’s request, the MOU parties granted an extension of this deadline to September 30, 2000.  However, no agreement on the size of the pumpback station and delta issues was forthcoming, and the Draft EIR was not completed by that time.  In an October 9, 2000, letter to the MOU parties, the Sierra Club proposed that LADWP and Inyo County consult with Ecosystem Sciences and the EIR consultant and present to the MOU Group reasonable deadlines for completion of the Draft LORP EIR at the October 16th MOU Group meeting.  No such deadlines were promised or discussed at that meeting.

In a December 22, 2000, letter to the MOU parties, the Sierra Club and the OVC pointed out it is not consistent with the MOU for LADWP, because of disagreement over the size of the pumpback station and issues over delta flows, to delay the Draft LORP EIR, and likely delay implementation of the project.  The December 22nd letter pointed out that in order to meet the City’s MOU's obligation to commence the 40 cfs base flows in the river by June 13, 2003, the Draft LORP EIR must be completed as soon as possible and that a new deadline for completion of the Draft EIR must be agreed to as soon as possible.  To date LADWP has not responded to the Sierra Club and the OVC’s December 22nd letter, the Draft LORP EIR is still not completed, and there is no new deadline for completion of the Draft LORP EIR.

LADWP has clearly breached its agreement to prepare a Draft LORP EIR by September 30, 2000 and in breach of its obligation of obtain the consent of the signatories to the MOU in order to obtain an extension of time.  Although some delays may reasonably be expected to occur for reasons beyond LADWP’s control, which is why the MOU parties already extended the original deadline, the City’s failure to meet the extended deadline for the Draft LORP EIR does not appear to be beyond its control.  The City’s delay in releasing a Draft EIR will likely result in a delay in implementation of the LORP.  This will result in the continued unmitigated environmental impacts to the Owens Valley.  The mitigation activities encompassed in the LORP project are for identified and unidentified environmental impacts caused by the City’s groundwater pumping activities from 1970 to 1990.  LADWP has successfully delayed the implementation of appropriate mitigation for nearly 23 years through litigation and delaying tactics.  With the signing of the historical MOU in 1997, with its strict timetables, the citizens of the State of California and the Owens Valley had every right to believe that era had come to an end.  Further delays in implementing mitigation would clearly breach both the Water Agreement and the MOU.

Delays in implementation for the LORP are a cause of great concern to the Sierra Club, the OVC and other parties to the MOU.  The MOU parties should meet as soon as possible to discuss the timeframe for completion of the Draft LORP EIR and other aspects of the LORP and to try to establish a new deadline for the Draft EIR.  Any proposed new schedule for preparation of the Draft LORP EIR should take into account the June 13, 2003 deadline for commencing the 40 cfs baseflows in the river.  Specifically, it should include a schedule for preparation for the Draft LORP EIR, preparation for the Final LORP EIR, preparation of the final designs for the pumpback station, a beginning date for construction of the pumpback station, a completion date for the pumpback station, and commencement of the 40 cfs baseflows in the river by June 13, 2003.

 

      42.       By letter dated February 14, 2001, from the Los Angeles City Attorney’s Office, the City responded that delays in preparing the draft EIR were attributable to “Inyo County’s interests in minimizing the costs of the monitoring program.”  The City also claimed that “further delays have occurred because of disagreements over a portion of the ‘project description’ in the DEIR” relating to the Owens Delta.

      43.       In its letter of February 14, 2001, the City announced that the draft EIR “will present for analysis four alternative project descriptions for the Owens Delta representing various pumpback capacities.  After these alternatives have been considered and evaluated, it should be possible to select the alternative that will provide the greatest benefits while meeting the goals of the LORP.”

      44.       In its letter, the City asserted that “although the delays have increased the amount of work that has been required, they have not, it is hoped, set the program so far behind schedule that the implementation dates cannot be met.”

      45.       After three meetings of the MOU parties in March 2001, the City agreed to produce a draft EIR by October 26, 2001.  An administrative draft of the EIR was to be prepared by July 3, 2001, with comments by LADWP and the County to the EIR consultant by September 4, 2001.  These deadlines were set forth in a Time Extension for MOU Tasks agreed to by the signatories to the MOU on March 16, 2001.  This document was circulated for signature and signed by representatives of all the MOU parties.  By letter dated April 16, 2001, from David Freeman, General Manager of LADWP to the Chairperson of the Inyo County Board of Supervisors, the City iterated its promise that “the EIR [be completed] on schedule.”

      46.       By email to the MOU parties on July 9, 2001, the Inyo County Water Department confirmed that the Water Department and LADWP had on that date received from John Gray of URS Corporation the Administrative Draft EIS/EIR for the Lower Owens River Project.

      47.       By email on August 30, 2001, John Gray informed the MOU parties that he had “received comments on the administrative draft EIR/EIS from LADWP, Inyo County, and EPA, which were to be received on or before September 4, 2001 per the agreement with the MOU parties.”

      48.       By letter dated October 4, 2001, from John Gray, Manager of Environmental Services for URS Corporation (the EIR consultant), LADWP, the County, and EPA were informed that more time, past the October 26, 2001, deadline would be needed for release to the public of a draft EIR.  This letter was emailed to the other MOU parties on October 5, 2001.

      49.       Plaintiffs Sierra Club and the Owens Valley Committee submitted a letter, sent via email on October 12, 2001, to the other MOU parties, which stated in part:

Pursuant to the terms of the MOU we request a MOU Group meeting to discuss the release date of the draft LORP EIR/EIS.  We would like the City and County along with John Gray, the EIR consultant, to explain the status of work on the EIR/EIS and why they cannot make the Oct. 26 deadline that we were assured would be met when we agreed to the time extension last spring.

 

      50.       Counsel for Plaintiffs Sierra Club and the Owens Valley Committee submitted a letter, dated October 29, 2001, to the other the MOU parties, requesting a meeting of the MOU parties and notifying the signatories of a dispute regarding the implementation of and compliance with the MOU and that the purpose of the October 30, 2001, meeting with representatives of all the MOU signatories was to discuss the current dispute and potential solutions.  A copy of this letter is attached to this Complaint as Exhibit B.

      51.       The MOU parties met on October 30, 2001, for consideration of the City’s request to extend the deadline for releases of the draft EIR, and for other purposes.

      52.       Plaintiffs Sierra Club and the Owens Valley Committee did not and have not agreed to any further extension of time for preparation of the draft EIR.

      53.       By memorandum dated November 6, 2001, from Gene Coufal of LADWP to the MOU signatories, the signatories were informed that February 18, 2002, would be the “most realistic date” for release of the LORP draft EIR.  This memorandum was accompanied by a draft Time Extension Agreement providing for an extension through February 18, 2002.  To date, the draft Time Extension Agreement has not been signed by any of the MOU parties.

      54.       The City’s draft agreement for a time extension did not contain a provision, set forth in the earlier Time Extension Agreement, that “the extension of the deadline for release of the draft EIR does not alter the deadline for implementation of flows in the river set forth in the MOU.”

      55.       By letter dated November 28, 2001, to Donald Mooney, counsel for OVC, the City Attorney’s Office responded to Mr. Mooney’s November 19 letter, requesting the City to state whether the request extension would affect the deadline for establishment of a 40 cfs flow in the river by June 13, 2003.  A copy of the letter is attached to this Complaint as Exhibit C.

      56.       In this letter, the Assistant City Attorney stated the City “is committed to bringing this project to fruition.”  The letter stated, without specifying, that there were “certain aspects of the EIR process, including the contract with URS [the EIR consultant] and EPA’s role in the process, that are beyond the control of LADWP.”           

      57.       The letter ominously concluded:

At this time therefore, the best information that LADWP can provide you is that the time extension to release the DEIR is likely to have an effect on subsequent portions of this project.  However, until the DEIR is released and a more complete design of the pump back station is available it will not be possible to determine the extent of that effect on specific portion of the project, including the June 13, 2003 release date.

 

      58.       The Sierra Club and the Owens Valley Committee, as amici in Inyo County v. City of Los Angeles and as signatories to the MOU, have a direct and beneficial interest in enforcing the MOU’s terms to ensure that LADWP completes the draft EIR and final EIR in accord with the MOU and that the LORP be implemented and water placed in the river consistent with the MOU’s express terms.

      59.       A present and continuing controversy exists between Plaintiffs and LADWP concerning whether LADWP breached its obligation to prepare a draft EIR by October 26, 2001, pursuant to the MOU and two agreements for extensions of time.  Plaintiffs seek a declaration that LADWP, without just reason and not due to circumstances beyond its control, under the terms of the MOU, is in breach of its duty to have produced for public review a draft EIR by October 26, 2001.  Plaintiffs seek a declaration by this Court of their rights under the MOU and establishing a date certain for completion of the draft EIR, completion of the final EIR and the implementation of the LORP project, including the flow of water in the river consistent with the requirements of the MOU.

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CAUSE OF ACTION  FOR  DECLARATORY & INJUNCTIVE RELIEF

         60.       Plaintiffs incorporate by reference paragraphs 1 through 59, supra.

      61.       Defendants, without just cause and not due to circumstances beyond their control, have breached their duty under the MOU, to which Plaintiffs are signatories, as modified by Extension Agreements, to complete and circulate a draft EIR for the LORP by October 26, 2001.

      62.       Plaintiffs have not, and will not, agree to any further extensions of time for production, completion, and circulation of the required draft EIR.  The Real Parties-in-Interest have not, to date, agreed to an extension of time.

      63.       Plaintiffs have and are continuing to suffer injury as a result of Defendants’ breach of their duties and obligations under the MOU.

PRAYER FOR RELIEF

      1.         Plaintiffs pray that this Court, pursuant to Code of Civil Procedure section 1060, declare that LADWP had a duty under the MOU to complete a draft EIR for the Lower Owens River Project by October 26, 2001, and that LADWP has breached its duty to Plaintiffs’ detriment, and that such declaratory relief is necessary and proper because there is a continuing and present controversy between the parties as to their rights and obligations under the MOU, with respect to production and completion of the draft EIR.

      2.         Plaintiffs pray that the Court issue a mandatory injunction requiring completion of the draft EIR for the Lower Owens River Project by a date to be established and enforced by the Court, consistent with the intent of the MOU parties, and that such injunction notice LADWP that in the event that LADWP does not meet the Court’s deadline, the Court will consider, upon motion of Plaintiffs and/or the Real Parties-in-Interest, enjoining continuation of LADWP’s ground-water pumping within Inyo County, for export to the City of Los Angeles, until such time as LADWP completes and circulates the draft EIR and implements the LORP with a 30 cfs flow in the Lower Owens River in a manner consistent with the City’s obligations under the MOU.

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      3.         For such other relief including attorneys’ fees, pursuant to Code of Civil Procedure section 1021.5, as is just and proper, and for such injunctive relief as may be necessary in conjunction with the Court’s declaratory judgment.

 

Dated:   December 21, 2001.        

                                                                        Respectfully submitted,

 

 

 

By:                                                      

         LAURENS H. SILVER

         Attorney for Plaintiff Sierra Club

 

 

 

By:                                                      

                                                                      DONALD B. MOONEY

                                                                      Attorney for Owens Valley Committee