Filed 6/2/15 Mountains Recreation and Conservation Auth. v. City of Whittier CA2/1

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION ONE
MOUNTAINS RECREATION AND                                                 B253245
CONSERVATION AUTHORITY,
                                                                         (Los Angeles County
         Plaintiff, appellant and respondent.
                                                                         Super. Ct. Nos. BS135187,
         v.                                                              BS136211, BS138796)
CITY OF WHITTIER et al.,
         Defendants, appellants and
         respondents;

MATRIX OIL CORPORATION et al.,
         Real parties in interest, appellants
         and respondents.


LOS ANGELES COUNTY REGIONAL
PARK AND OPEN SPACE DISTRICT
et al.,
         Plaintiffs, appellants and
         respondents,
         v.
CITY OF WHITTIER et al.,
         Defendants, appellants and
         respondents;

MATRIX OIL CORPORATION et al.,
         Real parties in interest, appellants
         and respondents.
       APPEAL from the judgment of the Superior Court of Los Angeles. James C.
Chalfant, Judge. Affirmed as modified and remanded with directions.
       John F. Krattli and Mark J. Saladino, County Counsel, and Scott Kuhn, Deputy
County Counsel; Glaser Weil Fink Howard Avchen & Shapiro, Patricia L. Glaser, and
Sean Riley; Greines, Martin, Stein & Richland, Timothy T. Coates, and Alana H. Rotter
for Plaintiffs, Defendants, Appellants and Respondents Los Angeles County Regional
Park and Open Space District, County of Los Angeles and Los Angeles County Board of
Supervisors.
       Law Offices of Woosley & Porter, Eric A. Woosley, and Jordan T. Porter for
Real Parties in Interest, Appellants, and Respondents Matrix Oil Corporation and Clayton
Williams Energy, Inc.
       Richards, Watson & Gershon, James L. Markman, and Ginetta L. Giovinco for
Defendants, Appellants, and Respondents City of Whittier and City Council of City of
Whittier.
       Pircher, Nichols & Meeks, James L. Goldman, and J. Michelle Hickey for
Plaintiff, Appellant and Respondent Mountains Recreation and Conservation Authority.
                        ___________________________________


       The City of Whittier purchased 1,280 acres of undeveloped land financed
by a grant from the Los Angeles County Regional Park and Open Space District
(the District).1 The grant was authorized by Proposition A, an initiative approved by
Los Angeles County voters to provide money for parks, wildlife, and open space
preservation. Under a “Project Agreement” between Whittier and the District, Whittier
agreed to submit any proposed leases to the District for its review and approval. Whittier


1
       The City of Whittier and the City Council of the City of Whittier were separately
named as defendants. We will refer to them collectively as “Whittier.” The County of
Los Angeles and the Los Angeles Board of Supervisors were also named defendants.
Because their interests are aligned with the District, we do not refer separately to them in
our discussion.


                                             2
thereafter entered into a lease with real parties in interest Matrix Oil Corporation and
Clayton Williams Energy, Inc. (collectively, Matrix) allowing Matrix to drill for and
produce oil on seven acres of the protected land (the Lease). Whittier did not obtain the
District’s approval of the Lease.
       This lawsuit was commenced by Mountains Recreation and Conservation
Authority (MRCA), which eventually settled and dismissed its claims prior to judgment.
The District, as cross-complainant and petitioner, challenged Whittier’s actions and its
claim to proceeds from the oil drilling project on the grounds that the actions violated
Proposition A, the public trust doctrine, the Project Agreement, and the California
Environmental Quality Act (CEQA). Following a bench trial, the court concluded that
the District’s Proposition A and public trust doctrine claims were barred by the statute of
limitations, and denied the CEQA claims on the merits. It ruled in favor of the District
on its claim that Whittier had breached the Project Agreement by entering into the Lease
without the District’s consent. The court ordered specific performance of the prior
approval requirement and enjoined the oil drilling project until June 30, 2015, the date the
Project Agreement terminates. The court also declared that Whittier may not, during the
term of the Project Agreement, spend proceeds from the Lease in a manner that violates
the Project Agreement. All parties appealed.2
       We agree with the trial court that Whittier violated the Project Agreement. We
disagree, however, that the injunctive and declaratory relief should terminate at the end of
the term of the Project Agreement. We modify the judgment accordingly.




2
       The District filed the first notice of appeal. Whittier, Matrix, and MRCA filed
notices of appeal and cross-appeal. MRCA, which initiated this lawsuit and asserted
claims against Whittier similar to the District’s claims, is now aligned with Whittier and
Matrix on appeal. In discussing the contentions of the parties, our references to
Whittier’s contentions and arguments include the contentions and arguments made by
Matrix and MRCA.

                                              3
                                  FACTUAL SUMMARY
       1.     Proposition A and the Grant for the Whittier Hills Project
       Los Angeles County voters approved Proposition A in 1992. Among other
purposes, the initiative authorized property assessments and bonds to fund “grants to
public agencies for the acquisition, development, improvement, rehabilitation, or
restoration of real property for parks and park safety, . . . recreation, wildlife habitat or
natural lands . . . .” The initiative created the District, which is charged with the duty to
“take all actions necessary and desirable to carry out the purposes of [Proposition A].”
       The District created a “Procedural Guide” to “assist agencies applying for grant
funds” under Proposition A. According to the Procedural Guide, the recipient of a grant
must “submit for prior District approval any proposed operating agreement, lease,
management contract, or similar arrangement with a non-governmental entity that relates
to the project or the project site. Prior District approval of all non-governmental use,
operations, management or other activity on the site is necessary during, and after, the
project performance period.”3 (Underline in original.)
       Under the Procedural Guide, income from non-recreational uses of the property
must be used “for recreation development, additional acquisition, operation or
maintenance at the project site, unless the District approves otherwise.” If income from
non-recreational use is not used for such purposes and the District does not approve of
another use, the applicant must return such income to the District.




3
       The project performance period in this case ended on December 31, 1995. The
“project” referred to in the Procedural Guide and the Project Agreement is the acquisition
of property by Whittier with a grant funded by Proposition A. It should not be confused
with Matrix’s oil drilling project.

                                               4
       2.     Whittier’s Grant Application and Project Agreement
       Whittier applied for a grant of Proposition A funds in July 1993. District and
Whittier thereafter entered into a “Project Agreement.” The agreement incorporates the
Procedural Guide. The District agreed to grant to Whittier $9.3 million to acquire
4,000 acres of certain land to “preserve portions of the last remaining chaparral, native
oak woodlands and coastal sage scrub ecosystems within eastern Los Angeles County.”
Whittier agreed to the following: (1) “submit for prior District review and approval any
and all existing or proposed operating agreements, leases, concession agreements,
management contracts or similar arrangements with non-governmental entities, and any
existing or proposed amendments or modifications thereto, as they relate to the project
or the project site for a period of twenty (20) years from the date of this Agreement”;
(2) not “permit the use of any portion of the Project by any private person or entity, other
than on such terms as may apply to the public generally” without the prior written
consent of the District; (3) “use the property acquired . . . only for the purpose for which
[Whittier] requested District grant monies and . . . not permit any other use of the area,
except as allowed by [the District]”; (4) maintain and operate the Property in perpetuity
subject to Proposition A, provided it may transfer this responsibility “[w]ith the District’s
approval”; and (5) use any income received from non-recreational uses “for recreation
development, additional acquisition, operation or maintenance at the Project site, unless
the District approves otherwise in writing.” The Project Agreement also required
Whittier, upon sale or other disposal of less than the entire interest in the property, to
reimburse the District “an amount equal to the greater of: 1) an amount equal to the
proceeds; or 2) the fair market value.”
       The Project Agreement provided that in the event of a breach by Whittier,
repayment of the grant funds would be inadequate to compensate the District. Therefore,
“the appropriate remedy . . . shall be the specific performance of this Agreement, unless
otherwise agreed to by the District.” The right to specific performance, however, did not
“limit in any way the District’s legal or equitable remedies under this [Project]
Agreement.”


                                               5
       The term of the Project Agreement “is from the date of execution by both parties
through June 30, 2015.”
       3.     Whittier’s Purchase of Land with Proposition A Funds and the Chevron
              Declaration
       Whittier used its Proposition A grant to acquire two parcels of land. One is a
960-acre parcel (the Chevron Tract) previously owned by Chevron U.S.A. Inc.
(Chevron); the other is a 320-acre parcel known as the Unocal Tract. Together, these
parcels became part of the Puente Hills Landfill Native Habitat Preserve (the Preserve).
       Whittier’s purchase of the Chevron Tract involved a series of transactions closing
on the same date in December 1995: Chevron transferred the property to the Trust for
Public Land; the Trust for Public Land transferred the property to MRCA; and MRCA
transferred it to Whittier.
       At the same time Chevron transferred the property to the Trust for Public Land,
it recorded a “Declaration and Easement of Restricted Use” (the Chevron Declaration).
The express purpose of the Chevron Declaration is to place a conservation easement over
600 acres of the 960-acre Chevron Tract, “which land will be retained forever in a
natural, undeveloped open space condition . . . for wildlife habitat and habitat restoration
purposes and to prevent any use of [such land] that will impair or interfere with the
conservation values of the [Chevron Tract].” The boundary of the proposed 600-acre
conservation easement is not delineated. Once the boundary and form of the easement is
agreed upon, Chevron “shall cause such Conservation Easement to be recorded.” Upon
the execution and recordation of the conservation easement, the parties shall record a
release of the Chevron Declaration.
       In August 1997, Whittier entered into a property acquisition and management
agreement with Puente Hills Landfill Native Habitat Preservation Authority (Habitat
Authority).4 An express intent of the parties was that Habitat Authority would “maintain,



4
      The Habitat Authority is a joint powers authority created by the County of
Los Angeles, Whittier, and County Sanitation District No. 2 of Los Angeles County.

                                              6
preserve and protect” in perpetuity the Chevron and Unocal Tracts for “public open space
and recreational uses on behalf of this generation and the generations to come.”
       4.     The Lease and the Oil Drilling Project
       On October 28, 2008, Whittier and Matrix entered into the Lease, which allowed
Matrix to explore, drill, and operate a portion of the Preserve for the production of oil
and gas (the Project). The Lease permitted Matrix to construct and operate pipelines,
power lines, tanks, buildings, and other structures necessary and proper for its operations.
It also allowed for the relocation of existing roads and the building of new ones to
accommodate the Project. Drilling and production facilities would cover no more than
seven acres. Whittier would receive a fixed rent per acre plus royalties on the sale of oil
and gas produced from the property. The Lease also required Matrix to pay certain
fees to the Habitat Authority. The District projected the Project’s revenue to be between
$7.5 million and $115.4 million per year.
       The Lease precluded any oil drilling activity prior to (1) the completion of an
environmental review under CEQA, and (2) Whittier’s issuance of a conditional use
permit (CUP). In addition, the Lease provided that Whittier will not issue a CUP “until
[Whittier] has obtained a release from protected area status from that portion of the
Leased Land upon which surface operations are allowed under an issued [CUP] from the
Los Angeles County Proposition A District.” A similar release was required before
Matrix could add additional drill sites.
       Whittier did not obtain the District’s approval of the Lease.
       5.     The Environmental Impact Report and Conditional Use Permit
       Matrix applied to Whittier for a CUP for the Project in April 2009. In an
environmental impact report (EIR), the Project is described as a single pad with
oil wells, an oil processing plant, a gas plant, and an oil-truck loading facility located
on 6.9 acres. The Project would proceed in three phases: (1) drilling up to three test
wells and assessing the quantity and quality of oil and gas produced; (2) construction of
well cellars, the installation of gas and oil processing equipment, and transportation



                                              7
facilities; and (3) drilling up to 57 more wells, as well as operation and maintenance of
the gas and oil facilities and wells.
       The draft EIR acknowledged that Whittier was required to obtain the District’s
consent “for certain proposed uses or development of the land for anything other than
open space or recreational use.” During the public comment period regarding the draft
EIR, the District objected that the Project “would be incompatible with the specified use
of lands acquired with Proposition A grant monies,” and that Whittier was required “to
obtain the consent of the District for proposed uses or development of the land for
anything other than open space or recreational use.” Whittier responded to the District’s
comments in the final EIR by stating: “If the Project is approved, [Whittier] will comply
with all legal requirements under Proposition A.”
       On November 28, 2011, without the District’s consent, Whittier certified the final
EIR and approved the CUP for the Project.
       The resolution certifying the CUP stated that “there are no existing conservation
easements placed on the property that would prohibit” the Project, the Project would
not violate the public trust doctrine, and it is not prohibited by Proposition A.
       6.     Amendment of the Lease, the Chevron Release, and the Royalty Funding
              Agreement
       On May 8, 2012 the parties amended the Lease to omit the requirement that
Whittier obtain a “release” from the District. The next day, Whittier’s City Manager
informed Matrix that the CUP for the Project “is now conveyed and effective[,] allowing
[Matrix] to move forward . . . .”
       Although Whittier claimed the Chevron Declaration did not preclude the Project, it
nevertheless entered into an Amendment and Partial Release of Declaration and
Easement of Restricted Use (the Chevron Release) with Chevron to “clarify that a
restriction does not exist” for the Project. The Chevron Release excluded the seven acres
designated for the Project from the Chevron Declaration. Whittier further agreed to
create, within four years, the conservation easement required by the CUP and to seek
from Chevron a complete release of the Chevron Declaration.


                                              8
       In August 2012, Whittier entered into a Royalty Funding Agreement (RFA)
with the Habitat Authority. Under the RFA, Whittier agreed to pay Habitat Authority
four percent of the royalties it received under the Lease, up to an annual maximum of
$2 million.
       Matrix made payments to Whittier pursuant to the Lease, which Whittier placed in
its general fund account. Whittier tendered $325,000 to the District as payment for
the portion of land to be used for the Project, which the District rejected.
                              PROCEDURAL BACKGROUND
       MRCA commenced this action when it filed a complaint and petition for writ of
mandate in February 2012 against Whittier and the District. In a first amended petition
and complaint, MRCA alleged claims, among others, that Whittier violated Proposition A
and its obligations under the public trust doctrine by approving the Project. MRCA
sought damages and an injunction to stop the Project.
       The District filed a cross-complaint and petition for writ of mandate alleging
that Whittier had breached the Project Agreement, violated Proposition A and the
public trust, and failed to comply with CEQA. It sought specific performance of the
Project Agreement, injunctive relief, and declaratory relief.
       After a trial in June 2013, the court ruled in favor of the District on its breach
of contract claim. The court ruled against the District on its Proposition A and public
trust claims on the ground that they were barred by the 90-day statute of limitations
applicable to the grant of a CUP. (Gov. Code, § 65009.) The court rejected the District’s
CEQA claims on the merits.
       In August 2013, MRCA settled its claims against Whittier and Matrix, and
dismissed its petition and complaint. The court did not enter a judgment on those claims
and they are not before us.
       The court filed an initial judgment in October 2013 and, after resolving
post-judgment motions by the District and Matrix, filed an amended judgment in
December 2013. The amended judgment ordered specific performance of the Project
Agreement’s provision that Whittier obtain the District’s consent before entering into any


                                              9
lease or other agreement that changes the use, or disposes, of any portion of the property
or allows the Project to proceed. It also enjoined Whittier and Matrix from activity on
the property pursuant to the Project until the District approves of the Project or July 1,
2015, whichever occurs first. The court also declared “that during the term of the Project
Agreement, which expires on June 30, 2015, Whittier is not entitled to spend rental
income, royalties or other proceeds from the Lease in a manner that violates the Project
Agreement.” The court found in favor of Whittier on its statute of limitations claims
regarding Proposition A and the public trust.
                                       DISCUSSION
       1.     Whittier’s Breach of the Project Agreement and the District’s Remedies
       Whittier contends: (1) the District’s breach of contract claim is barred by
the statute of limitations applicable to actions challenging a conditional use permit
(Gov. Code, § 65009, subd. (c)(1)(E)); alternatively, (2) the District approved the Lease
or waived the argument that it did not; (3) the District is not entitled to a declaration
regarding its use of the Lease proceeds; and (4) the injunctive and declaratory relief in
favor of the District should have terminated in November 2013. We disagree.
              A.      Statute of Limitations
       Whittier contends that the District’s breach of contract claim is time-barred
because it was not brought within 90 days of the grant of Matrix’s CUP. It relies on
Government Code section 65009, subdivision (c), which provides a 90-day statute of
limitation for actions challenging certain planning and zoning decisions, including
decisions granting a conditional use permit. (Gov. Code, § 65009, subd. (c)(1)(E);
Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765.) The trial court rejected
this argument and agreed with the District that the applicable statute of limitations is in
Code of Civil Procedure section 337, subdivision (1), which provides a four-year
limitations period for actions upon a written contract. We review the court’s ruling on
the statute of limitations de novo. (William L. Lyon & Associates, Inc. v. Superior Court
(2012) 204 Cal.App.4th 1294, 1304.) We agree with the trial court.



                                               10
       The applicable statute of limitations depends on the gravamen of the cause of
action. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22.) The gravamen is the nature
of the right sued upon, not the form of action or the relief demanded. (Ibid.) The nature
of the right is determined by ascertaining the primary interest that was invaded by the
defendant’s wrongful conduct. (Lehman v. Superior Court (2006) 145 Cal.App.4th
109, 122.) Here, the District’s primary interests are the particular contract rights
expressed in the Project Agreement, including the right to review and approve of
proposed leases and other agreements relating to the property and to ensure that income
from non-recreational uses of the property, such as oil drilling, are used in compliance
with the agreement and Proposition A. These interests are ongoing and independent of
any interest the District might have in challenging the issuance of the CUP. Because the
gravamen of the District’s breach of contract claim is the assertion of its contractual
rights and remedies, the applicable statute of limitations is Code of Civil Procedure
section 337, subdivision (1). Because the action was brought within four years of
Whittier’s alleged breach, the District’s action is timely.
              B.     Whittier’s Claim That the District Approved the Lease or Waived the
                     Right To Assert That It Did Not
       Whittier argues that the District has, by its conduct, approved of the Lease or
waived any argument that it has not. We disagree.
       Although the trial court did not expressly address this issue, it impliedly rejected
Whittier’s argument by finding in favor of the District on its breach of contract claim.
This implied finding is reviewed for substantial evidence. (Shaw v. County of Santa Cruz
(2008) 170 Cal.App.4th 229, 267; see also St. Agnes Medical Center v. PacifiCare of
California (2003) 31 Cal.4th 1187, 1196 [waiver is ordinarily a question of fact and trial
court’s finding is binding on appellate court if it is supported by substantial evidence].)




                                              11
       Whittier points to statements the District made in support of a demurrer in an
earlier action that Proposition A does not prohibit, and indeed provides for, leasing and
disposal of land purchased with Proposition A funds. Whittier suggests that the District
is bound by the doctrine of judicial admissions. (See Aguilar v. Lerner (2004) 32 Cal.4th
974, 986.) This doctrine does not apply because the trial court in the prior action rejected
the District’s argument on this point. (See CytoDyn of New Mexico, Inc. v. Amerimmune
Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 299-300, fn. 9 [doctrine of judicial
admissions does not apply when the party was not successful in asserting its first
position].) The District is therefore not bound by such statements. Moreover, the
District’s prior statements addressed the language in Proposition A, not the Project
Agreement, which unambiguously required the District’s prior approval of the Lease.
       Whittier also refers to communications with the District in which they discussed
Whittier’s payment of compensation or reimbursement to the District. Whittier points
out that during the course of these discussions the District did not assert its right to prior
approval of the Lease or indicate that it would not approve the Lease. Notwithstanding
that alleged failure, the District did timely object to the proposed EIR on the ground that
Whittier was required “to obtain the consent of the District for proposed uses or
development of the land for anything other than open space or recreational use.”
       “Waiver requires . . . either an actual intention to relinquish [a known right] or
conduct so inconsistent with any intent to enforce the right as to induce a reasonable
belief that it has been relinquished. [Citations.] The waiver of a legal right cannot be
established without a clear showing of intent to give up such right.” (Utility Audit Co.,
Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 959.) The party asserting the
waiver has the burden to prove it by clear and convincing evidence that does not leave the
matter doubtful or uncertain. (Ibid.) Whittier’s evidentiary showing is insufficient to
satisfy this burden. At most, the communications show that the District did not assert its
right of prior approval before the environmental review began, but made its objection on
this ground known during that process. In any case, Whittier did not rely on the District’s
alleged tacit approval because it acknowledged in the Lease and the EIR its obligation to


                                              12
obtain the District’s consent to use “the land for anything other than open space or
recreational use.”
              C.      Whittier’s Use of Lease Proceeds
       Whittier contends that the District is not entitled to the court’s declaration that
Whittier not spend rental income, royalties, or other proceeds from the Lease in a
manner that violates the Project Agreement. First, Whittier argues that Proposition A
does not restrict Whittier’s use of Lease proceeds. Rather, it merely sets forth a
“compensation mechanism” to apply when there is an unpermitted change in the use or
disposition of the property. We need not address the requirements of Proposition A.
The Project Agreement itself addresses the disposition of proceeds and income from any
non-recreational use of the property. Paragraph D.10 of the Project Agreement requires
Whittier, in the event of a sale or disposal of less than the entire interest in the property,
to “reimburse the District an amount equal to the greater of: 1) an amount equal to the
proceeds; or 2) the fair market value.” Paragraph D.4 of the Project Agreement explicitly
requires Whittier to use any “gross income” earned from non-recreational uses of the
property “for recreation development, additional acquisition, operation or maintenance at
the project site, unless the District approves otherwise in writing.” The Project
Agreement, therefore, explicitly compels Whittier to use “proceeds” from the disposition
(i.e., the Lease) and “gross income” from non-recreational uses (i.e., the Project) as
specified by its terms.
       The trial court interpreted these provisions to include “rental income, royalties or
other proceeds from the Lease.” We agree with this interpretation. The court’s judgment
that Whittier apply the proceeds in a manner that does not violate the Project Agreement
is proper.
       Whittier also contends that the court’s declaration regarding proceeds is barred by
the 90-day statute of limitations applicable to attacks on a conditional use permit under
Government Code section 65009. We disagree. The declaration governs the use of
proceeds from the Project, not Matrix’s permit to pursue the Project.



                                              13
       Next, Whittier argues that the judgment is contrary to Public Resources Code
section 7055, which states that “[a]ny money accruing from leases under this chapter
shall be paid into the general fund of the county or other public or quasi public
corporation, body or agency for the use of the county or other public or quasi public
corporation, body or agency, as the case may be.” “[T]his chapter” includes Public
Resources Code section 7051, which authorizes local governments to lease land “for the
production of oil, gas and other hydrocarbons.” (Pub. Resources Code, § 7051.) Nothing
in section 7055 conflicts with the judgment. Section 7055 provides for payment of oil
lease proceeds into the city’s general fund; the judgment restricts how Whittier can spend
the proceeds.
                D.   Expiration Date of the Injunction
       The trial court enjoined the oil drilling activity until June 30, 2015, the date the
Project Agreement terminates. Whittier contends that the injunction should have
terminated on November 9, 2013. We review the court’s interpretation and application
of the Project Agreement de novo. (See Parsons v. Bristol Development Co. (1965)
62 Cal.2d 861, 865-866.)
       Whittier relies on paragraph D.5 of the Project Agreement, which requires
the District’s prior approval of proposed leases and amendments “for a period of
twenty (20) years from the date of this Agreement.” It argues that any relief for a breach
prior to that date should terminate 20 years after November 9, 1993—the date the Project
Agreement was signed by the last signatory. The trial court rejected this argument, but
limited its injunction to June 30, 2015, the date the Project Agreement terminates by its
express term. We disagree with both views.
       Neither the 20-year period in paragraph D.5 nor the termination date of the
agreement is relevant to the proper duration of injunctive and declaratory relief for a
breach occurring during the term of the agreement. Once a breach occurred, the District
was entitled to appropriate relief from that breach. The expiration of the Project
Agreement itself did not eliminate the prior breach, which was entering into the
unapproved Lease.


                                              14
       Because, as discussed above, activity under the Lease should be enjoined without
regard to the termination date of the Project Agreement, the declaration limiting
Whittier’s use of any proceeds from that unapproved Lease should likewise have no
termination date.
              E.      District’s Claim That the Lease Is Void
       The District contends that the court found that the Lease was void and erred by
failing to so provide in the judgment. Whether the trial court made this finding or not, it
is unnecessary to our decision because the remedy obtained by the District is the same
whether the Lease is void or the District has the right to demand performance of the
Project Agreement. The judgment for permanent injunction and declaratory relief, as
we modify them, are appropriate and adequate remedies for Whittier’s breach of the
Project Agreement.
       2.     Because of Our Resolution of the Breach of Contract Claims, We Do Not
              Address the Proposition A and Public Trust Doctrine Claims
       The District contends that the court erred in finding its Proposition A and public
trust claims time-barred under Government Code section 65009, subdivision (c)(1)(E). It
further contends that those claims entitle it to relief. We need not reach these issues.
       The District, in its cause of action for violation of Proposition A and the “public
trust” sought the same relief it sought in its breach of contract cause of action. The
judgment provided complete relief for that breach except for the duration of the relief,
which duration we will modify. It is thus unnecessary for us to consider whether the
alleged breach of other rights entitles the District to some relief.




                                              15
       3.     Alleged Violation of CEQA
       The District contends that the court erred in denying its claim that Whittier
violated CEQA by failing to conduct an environmental review of its decision to approve
the Chevron Release.5 We reject the contention.
       CEQA establishes a three-tier process to ensure that public agencies inform their
decisions with environmental considerations. (Muzzy Ranch Co. v. Solano County
Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380.) The threshold issue is
whether the particular activity is a “project” as defined in CEQA and its implementing
regulations, or “CEQA Guidelines.” (See Cal. Code Regs., tit. 14, § 15000 et seq.)
Activity that is not a project is not subject to CEQA. (Muzzy Ranch Co., supra,
at p. 380.)
       According to the CEQA Guidelines, a project “means the whole of an action,
which has a potential for resulting in either a direct physical change in the environment,
or a reasonably foreseeable indirect physical change in the environment, and that is . . .
[a]n activity involving the issuance to a person of a lease, permit, license, certificate,
or other entitlement for use by one or more public agencies.” (Cal. Code Regs., tit. 14,
§ 15378(a).) The term “refers to the activity which is being approved and which may be
subject to several discretionary approvals by governmental agencies”; it “does not mean
each separate governmental approval.” (Id., § 15378(c).)
       Pursuant to CEQA, Whittier conducted an environmental review of the Project
resulting in the completion of the EIR. The District does not challenge the adequacy of
that EIR. It contends, however, that Whittier’s subsequent approval of the Chevron
Release constituted a distinct project requiring another environmental review. We
disagree.




5
        In its cross-complaint and petition, the District alleged that Whittier had violated
CEQA twice—by its 2012 amendment to the Lease and by approving the Chevron
Release. The trial court rejected both claims. On appeal, the District asserts only the
latter.

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       The 2012 Chevron Release has the effect of excluding the oil drilling area from
the land that could be included within the conservation easement contemplated by the
1995 Chevron Declaration. It thus ensures that the boundary of the conservation
easement, when established, will not include the land designated for the Project. By
removing the possibility that a conservation easement would burden such land, the
Chevron Release, if viewed in isolation, has the potential for resulting in a direct or
reasonably foreseeable indirect physical change in the environment. As the CEQA
Guidelines direct, however, we must consider the whole of an action, not each separate
approval. Here, viewing the proposed Project as a whole, the Chevron Release merely
accomplishes something that was part of the Project and fully vetted in the environmental
review of that Project, namely, the use of the designated land for oil drilling. That is, any
possible effect on the environment that could result from the Chevron Release has been
fully considered in the EIR concerning the Project. In this light, the approval of the
Chevron Release is not a separate project subject to CEQA.
       The District relies on a CEQA Guideline that provides the “cancellation” of an
open space easement “will normally be an action subject to the CEQA process.”
(Cal. Code Regs., tit. 14, § 15317.) This Guideline does not alter our conclusion.
Whatever is meant by “normally,” it does not include the situation here—where the
change to the environment already considered by the EIR is the same as the change made
by the Chevron Release.




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                                       DISPOSITION
       The amended judgment filed December 10, 2013 is modified. Paragraph 1 of the
amended judgment is deleted and replaced with the following:

      “1.    Judgment is entered in favor of the District and against Whittier on the
Second and Fourth Causes of Action of the Cross-Complaint and the following relief is
hereby issued in favor of the District:
               (a)     A permanent injunction restraining and enjoining Whittier and
Matrix, and each of them and their agents, servants, employees, and representatives and
all persons acting in concert or participating with them from engaging in, committing or
performing, directly or indirectly, any activity or disturbance whatsoever on the Property
in pursuit of, or related to, the Lease; and
              (b)     A declaration that Whittier is not entitled to spend any rental
income, royalties, or other proceeds obtained pursuant to the Lease in a manner that
violates the Project Agreement.”
       Further, pursuant to Code of Civil Procedure section 923, Matrix and Whittier are
temporarily enjoined, pending the finality of this appeal, from engaging in, committing or
performing, directly or indirectly, any activity or disturbance whatsoever on the Property
in pursuit of, or related to, the Lease.
       Whittier is also temporarily enjoined, pending the finality of this appeal, from
spending any rental income, royalties, or other proceeds obtained pursuant to the Lease in
a manner that violates the Project Agreement.
       As modified, the judgment is affirmed. The matter is remanded to the trial court
to determine the disposition of monies, if any, received by Whittier, or for its benefit,
from or related to the Lease.
       The District is entitled to recover its costs on appeal.
       NOT TO BE PUBLISHED.


                                                          ROTHSCHILD, P. J.
We concur:


                      CHANEY, J.                          JOHNSON, J.

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