WATER suit gets a second chance

David Smith Gatehouse Media California

YREKA – The group We Advocate Thorough Environmental Review has been given a second chance to bring its case against Crystal Geyser’s planned Mount Shasta area operation in the Siskiyou County Superior Court.

The proposed water, juice and tea bottling plant has been at the center of a south Siskiyou County controversy for area residents ever since Siskiyou County declared that the proposed operation constitutes an approved use and would require no environmental review.

WATER presented its complaint to the court in August, alleging that Crystal Geyser’s bottling operation, as proposed, would be in violation of the land use zoning for the property on which it will operate.

Specifically, the group argues in its complaint that, while the area is designated as a heavy industrial zone, that a special “woodland productivity overlay” was instituted by the county and subsequently only light industrial activities can take place there.

In the original complaint, it is argued that Crystal Geyser’s planned operations – including bottling water, production of plastic bottles using premade plastic and the brewing and bottling of teas – would violate the woodland overlay designation.

WATER asked the court to both declare that Crystal Geyser’s proposed operations would violate the zoning overlay and to enjoin the company from engaging in its planned operation.

The group also asked the court to find that the company would need to obtain a groundwater extraction permit, and to enjoin it from operating the facility until obtaining one.

Crystal Geyser, in its response, declared a number of affirmative defenses, arguing that the members of WATER lack standing to sue, that they failed to exhaust administrative remedies and that they were suing too soon, since the company has yet to operate the plant.

Other defenses offered were that that WATER failed to demonstrate how irreparable harm would come from the company using a pre-existing facility – previously used for bottling purposes by another company – and that the requested relief would result in an effective ban on bottling operations, which are allowable in heavy industrial zones.

Siskiyou County, as the administrative body responsible for the zoning in the unincorporated area where the plant is proposed, also filed in the case.

The county requested that the court sustain its demurrer – in which a party argues that, all other arguments aside, the complainant lacks a legal basis to bring an action– and dismiss the case.

The county alleged in its demurrer that WATER failed in its complaint to identify where the court would have authority to intervene, stating that there is no identified groundwater basin where the plant is planned to operate, and therefore no groundwater extraction permit would be required.

It also argued that the court lacked authority to intervene because WATER failed to appeal the initial determination by the county that the proposed plant would be a consistent use of the property.

The county also argues that WATER’s complaint would be more appropriately considered a dispute over the original land use designation, the for which the deadline to challenge expired nearly 25 years ago.

On Dec. 17, representatives of each of the parties attended a hearing before Judge Karen Dixon, who was tasked with determining whether or not the county’s demurrer would be granted.

WATER’s attorney, Don Mooney, argued in court that the proposed plant’s operation go beyond past decisions for allowed uses of the property.

Assistant County Counsel Natalie Reed reiterated the county’s stance that arguments about incompatible uses of the property are time barred.

Mooney countered that WATER believes the county’s decision to allow the proposed use was considered to not be an agency action, and thus provided no opportunity for an appeal to be made.

Dixon asked Reed if there would be any reason for a proposed operation to require additional scrutiny or review, and Reed stated that for permitted uses, there are certain actions that must be taken, some of which require agency review.

Taking into account the filings and the oral arguments, Dixon stated that she did not believe that the court should be involved based on the original complaint – but she also granted WATER leave to amend the complaint, allowing the group to adjust its arguments in light of the challenges made in the county’s demurrer.

Dixon gave the group until Jan. 29, 2016 to file its amended complaint, drawing a comment from Crystal Geyser attorney Barbara Brenner that the company has invested millions in the proposed plant another waiting period created uncertainty for how to proceed.

Dixon did not waver, and set the Jan. 29 date for the amended complaint, after which the other parties will have 30 days to submit responses.