Sweeney v. California Regional Water Quality Control Bd.

Filed 3/18/21 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOHN D. SWEENEY et al.,
Plaintiffs and Respondents, A153583, A153585

v. (Solano County
CALIFORNIA REGIONAL WATER Super. Ct. Nos. FCS048136 and
QUALITY CONTROL BOARD, SAN FCS048861)
FRANCISCO BAY REGION et al.,
ORDER MODIFYING OPINION
Defendants and Appellants.
AND DENYING REHEARING;
NO CHANGE IN JUDGMENT

JOHN D. SWEENEY et al.,
Plaintiffs, Cross-defendants,
and Respondents,
v.
SAN FRANCISCO BAY
CONSERVATION AND
DEVELOPMENT COMMISSION et
al.,
Defendants,
Cross-complainants, and
Appellants.

BY THE COURT:
It is ordered that the opinion filed herein on February 18, 2021, be
modified as follows:

1
 At page 9, on the first line, “13627” is deleted, and “13267” is inserted
in its place.
At page 9, in the first sentence of the first full paragraph, “CAO.,” is
deleted, and “CAO.” is inserted in its place.
At page 14, in the fourth sentence of the first full paragraph, “13627” is
deleted, and “13267” is inserted in its place.
At page 17, on the first line, “damn” is deleted, and “dam” is inserted in
its place.
At page 25, on the fifth line, “its” is deleted.
At page 41, the third full paragraph is revised to read: “The trial court
also found “the evidence [was] not sufficient to support the conclusion that
the levee work adversely affected beneficial uses,” nor could it “support a
finding that the levee work violated requirements in the basin plan that
prohibit discharges into surface waters that affect beneficial uses.” ”
At page 41, in the fourth full paragraph, the first sentence is revised to
read: “Had the court applied the substantial evidence standard to the
Regional Board’s finding, as we do, it would have acknowledged ample
evidence of the levee work’s harm to beneficial uses.”
At page 44, the first full sentence on the page is revised to read: “Res
judicata “ ‘preclud[es] parties from contesting matters that they have had a
full and fair opportunity to litigate,’ ” and “protect[s] against ‘the expense and
vexation attending multiple lawsuits, conserve[s] judicial resources, and
foster[s] reliance on judicial action by minimizing the possibility of
inconsistent decisions.’ ” (Taylor v. Sturgell (2008) 553 U.S. 880, 892.)”
At page 54, at the end of the Section III.E. discussion regarding
“Vindictive Prosecution” and before the Section IV discussion regarding “Fair

2
Hearing (Applicable to CAO and ACL Order)” begins, the following is
inserted:
“F. Differentiated Civil Liabilities for Sweeney and the Club
Respondents argue that liability under the ACL must be assessed
differently for Sweeney and the Club. They assert, “For the ACL, the Club
should be distinguished from John Sweeney[] and should not be penalized for
the levee repair, which was effectively complete [citation] before the Club
took ownership of the island.” In a petition for rehearing, they contend the
trial court’s judgment should be affirmed to the extent it set aside the civil
liabilities for the Club, even though the trial court did not do so on the basis
that these liabilities were separable from the liabilities imposed upon
Sweeney. We will not consider this argument. “ ‘[A]s a general rule, “issues
not raised in the trial court cannot be raised for the first time on appeal.” ’ ”
(Rancho Mirage Country Club Homeowners Assn. Hazelbaker (2016) 2
Cal.App.5th 252, 264; Ochoa v. Pacific Gas & Electric Co. (1998) 61
Cal.App.4th 1480, 1488, fn. 3 [“It is axiomatic that arguments not asserted
[in the trial court] are waived and will not be considered for the first time on
appeal.”].) This argument was neither raised in the trial court, nor
mentioned in the trial court’s ruling, and we will not consider it in this
appeal.
Even if Respondents had raised this point in the trial court, we still
would not consider it because Respondents have not properly briefed the
matter on appeal. (See Tilbury Constructors, Inc. v. State Comp. Ins. Fund
(2006) 137 Cal.App.4th 466, 482 [matters asserted in perfunctory fashion or
not adequately briefed may be passed over]; Heavenly Valley Ski Resort v. El
Dorado County Bd. Of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17
[“[W]e need not address contentions not properly briefed.”].) Respondents’

3
125-page appellate brief provides only two sentences of argument on this
point, without citation to authority or to the record. There is neither a
factual nor legal basis presented that would permit this court to separately
consider the Club’s responsibility for the imposed penalties, apart from
Sweeney’s. The record shows that Sweeney transferred the Site to the Club
in October 2014 and that Sweeney was the Club’s manager. But
Respondents provide no citation to the record that describes the terms or
substance of that transaction. Moreover, the unpermitted work at the Site
may have continued well after the transfer. (See ante, Background.) These
facts raise a question about whether it would be proper to limit the Club’s
responsibility, and Respondents’ briefing provides no answer. The Sweeney
District Court Opinion, which Respondents cited at oral argument, does not
help them either. It neither supplies a legal nor factual basis for the
argument that fills the void in their briefing, nor does it address
administrative civil liabilities issued under state law. Accordingly, we do not
address Respondents’ claims.”
At page 62, in the second full paragraph, the first sentence is revised to
read: “The trial court also concluded Respondents did not receive fair
hearings under the totality of the circumstances.”
At page 63, in the first sentence of the first full paragraph, item (c) is
revised to read: “the Regional Board’s unwillingness to keep Sweeney’s
private financial information confidential, combined with criticism of him
for not providing more financial information,”
The petition for rehearing filed by Respondents on March 4, 2021, is
denied. There is no change in the judgment.

4
Dated: _______________ ____________________________
Fujisaki, Acting P.J.

5
Filed 2/18/21 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOHN D. SWEENEY et al.,
Plaintiffs and Respondents,
A153583
v.
CALIFORNIA REGIONAL WATER (Solano County
QUALITY CONTROL BOARD, SAN Super. Ct. No. FCS048136)
FRANCISCO BAY REGION et al.,
Defendants and Appellants.

JOHN D. SWEENEY et al.,
Plaintiffs, Cross-defendants,
and Respondents, A153585

v. (Solano County
SAN FRANCISCO BAY Super. Ct. No. FCS048861)
CONSERVATION AND
DEVELOPMENT COMMISSION et
al.,
Defendants,
Cross-complainants, and
Appellants.

Point Buckler (the Site) is a 39-acre tract located in Suisun Marsh.
John Sweeney purchased the island and subsequently transferred ownership
to Point Buckler Club, LLC (Club) (Sweeney and the Club are collectively

1
referred to as Respondents). For months, Respondents undertook various
unpermitted development projects at the Site, which included the restoration
of an exterior levee surrounding it that had been breached in multiple places.
These consolidated appeals concern two administrative orders issued
by the Regional Water Quality Control Board, San Francisco Bay Region
against Respondents. The first order was a cleanup and abatement order
which found Respondents’ development activities were unauthorized and had
adverse environmental effects. These included impacts to tidal marshlands,
fish migration, and aquatic habitat. The cleanup and abatement order
directed Respondents to implement corrective actions to address the effects of
their work. The second order imposed administrative civil liabilities and
required Respondents to pay approximately $2.8 million in penalties for their
violations of environmental laws and regulations.
Respondents successfully challenged both orders in writ proceedings in
the superior court. Appellants Regional Water Quality Control Board, San
Francisco Bay Region and its Executive Officer, Bruce Wolfe (collectively
referred to as Regional Board or Board) contend the trial court made
numerous legal and factual errors leading it to improperly set aside the
orders. We agree with the Regional Board and reverse both trial court
judgments.
BACKGROUND
The Site is located in Suisun Marsh at the south end of Grizzly Bay, a
portion of the San Francisco Bay.
In 2011, Sweeney bought the Site, which appears to have been
previously operated as a managed wetland for duck hunting. When Sweeney
purchased the property, the levee which had circumscribed the island had
degraded and breached in multiple places. Following his purchase, Sweeney

2
undertook a number of unpermitted construction and development projects,
which included restoring the Site’s exterior levee.
In October 2014, Sweeney transferred title of the Site to the Club, for
which he was the manager and president. He began operating the Site as a
private recreational area for kiteboarding. Sweeney also wanted to restore
the Site as a duck hunting club.
In November 2014, staff from the San Francisco Bay Conservation and
Development Commission (BCDC), a state agency with jurisdiction over the
waters of the San Francisco Bay including Suisun Marsh, inspected the Site.
BCDC staff notified Sweeney about their concerns with unauthorized work
occurring there and identified multiple violations. They observed the levee
construction work had removed tidal flow to the Site’s interior and dried out
tidal marsh areas. Addressing Sweeney’s view that the island was a
managed wetland and his stated intent to restore the island to that use, they
indicated that based on available information, the history of the Site and the
recent Site visit, the Site never functioned as a managed wetland and had
long reverted to a tidal marsh due to neglect, abandonment, or the forces of
nature. Sweeney was directed to stop work and informed that a marsh
development permit was required prior to developing the Site. In addition,
BCDC staff conveyed that any work that could not be retroactively approved
through the permit process would likely need to be removed and the Site
restored to tidal marsh. BCDC was handling the matter as an enforcement
case, and potential future enforcement against Sweeney could include cease
and desist orders and a civil penalty.1

1
In November 2016, BCDC issued a cease and desist and civil penalty
order which ordered Respondents to cease and desist from placing any fill
within the Site, or making any substantial changes to any part of the Site
that was or had been subject to tidal action before their unauthorized work.

3
 The Regional Board commenced separate enforcement proceedings
against Respondents. In July 2015, the Board issued a Notice of Violation
for Respondents’ unauthorized filling of federal and state waters in violation
of the federal Clean Water Act and the California Water Code. Several
months later, the Board issued Cleanup and Abatement Order No. R2-2015-
0038 (2015 CAO) to Respondents.
In October 2015, Regional Board staff inspected the Site with
representatives from other agencies, including BCDC, the U.S.
Environmental Protection Agency, and the U.S. Army Corp of Engineers
(Corps). The agencies wanted to better understand the nature and extent of
Respondents’ development activities, including the volume of fill placed for
construction of the levee, and to understand the impacts of the development
on tidal marsh habitat. During this inspection, BCDC staff observed that
additional work had been performed since their initial November 2014
inspection. According to Sweeney, worked stopped two months earlier when
Respondents first learned of the regulatory agency objections.
In December 2015, Respondents filed a petition for writ of mandate and
a complaint for injunctive and declaratory relief challenging the 2015 CAO.
The court granted Respondents’ request to stay the 2015 CAO and enjoined
the Board from enforcing the order pending a preliminary injunction hearing.
In January 2016, in order to address Sweeney’s procedural due process

Respondents were further ordered to refrain from engaging in any
development activity at the Site without permits. They were directed to
submit plans to restore the Site and mitigate the impacts of their
unauthorized activities and ordered to pay $772,000 in administrative
penalties. In a separate opinion filed today in the companion case of Sweeney
v. San Francisco Bay Conservation and Development Commission, Case No.
A153582, we reversed the trial court’s order invalidating the action taken by
the BCDC.

4
concerns, the Regional Board rescinded the 2015 CAO without prejudice to its
ability to issue a new order.
In the ensuing months, state agencies conducted more inspections. In
February 2016, the Regional Board conducted a boat survey around the Site
to assess conditions and observed additional development on the island since
the October 2015 multi-agency inspection. In March 2016, after securing an
inspection warrant, the Regional Board conducted another Site inspection.
The results of the inspection were compiled into an Inspection Report, which
provided a summary of inspection activities, water quality sampling results,
staff observations, and photographs.
In May 2016, an expert retained by the Regional Board issued the
“Point Buckler Technical Assessment of Current Conditions and Historic
Reconstruction Since 1985” (Technical Assessment). The Technical
Assessment was a 400-plus-page report based on examinations of conditions
at the Site over time that reported Respondents’ development activities and
their impacts.
Shortly after release of the Technical Assessment, the Regional Board
commenced new formal enforcement proceedings against Respondents.
On May 17, 2016, the Board issued a tentative cleanup and abatement order
and Administrative Civil Liability Complaint No. R2-2016-1008 (ACL
Complaint). The ACL Complaint proposed a $4.6 million penalty for
Respondents’ alleged violations.
A hearing on the tentative cleanup and abatement order was held on
August 10, 2016. The Board unanimously adopted and issued Cleanup and
Abatement Order No. R2-2016-0038 (CAO). The Board made dozens of
findings in the CAO regarding Respondents’ unauthorized activities at the
Site and the environmental harm resulting from the activities. The Board

5
found Respondents’ activities had adverse impacts on tidal marshlands,
estuarine habitat, fish migration, the preservation of rare and endangered
species, fish spawning, wildlife habitat, and commercial and sport fishing.
The Board concluded Respondents’ activities violated the Water Quality
Control Plan for the San Francisco County Basin (Basin Plan), which
prohibits the discharge of fill material in quantities sufficient to harm surface
waters or to adversely affect or threaten beneficial uses. The Board also
found Respondents’ work violated section 301 of the Clean Water Act which
prohibits the discharge of pollutants in state and federal waters without a
permit, and section 401, which prohibits dredge and fill activities in state and
federal waters without a water quality certification. The Board ordered
Respondents to submit certain technical reports and to clean up the
discharged waste, abate its effects, and take corrective actions that would
restore tidal circulation and marsh habitat to the Site.
A hearing was held on the ACL Complaint on December 14, 2016. The
Board issued Administrative Civil Liability Order No. R2-2016-0008 (ACL
Order). Respondents were found in violation of the Basin Plan and Clean
Water Act and assessed $2.8 million in penalties, rather than $4.6 million as
proposed.
Respondents challenged the orders in separate lawsuits. In December
2016, they petitioned under Code of Civil Procedure section 1094.5 for a
peremptory writ of mandate to set aside the CAO. In May 2017, Respondents
filed a second petition for a peremptory writ of mandate under Code of Civil
Procedure section 1094.5 contesting the ACL Order.
In May 2017, the Attorney General’s Office, representing the Board,
filed a cross-complaint seeking to enforce both orders.

6
 The trial court granted Respondents’ motion to stay the accrual of civil
penalties while the appeal was pending. The court also stayed substantive
portions of the CAO through judgment until an appeal was filed, or the time
to appeal had run.
In October 2017, the trial court heard the challenges to the CAO and
ACL Order. In separate statements of decisions, the trial court granted
Respondents’ motions and set aside both Regional Board orders. The court
also declared the Regional Board’s cross-complaint seeking to enforce the
CAO and ACL Order was moot. The court entered judgment in favor of
Respondents, issued peremptory writs of mandate in each matter, and
remanded the proceedings to the Regional Board with a directive to set aside
the orders.
The Regional Board and its Executive Director Bruce Wolfe separately
appealed each judgment. In July 2018, we consolidated the Board’s appeal
from the ACL Order judgment (Case No. A153583) and its appeal from the
CAO judgment (Case No. A153585) for all purposes. We received briefing on
Respondents’ behalf from amicus curiae California Construction and
Industrial Materials Association.
While the consolidated appeal was pending, the United States District
Court for the Eastern District of California issued its opinion in United States
v. Sweeney (Sept. 1, 2020 E.D. Cal.) ___ F.Supp.3d ___ [2020 WL 5203474]
(the Sweeney District Court Opinion), which adjudicated the federal
government’s claims against Respondents for their activities at the Site
under the Clean Water Act. (Id. at *1.) We granted the Regional Board’s
request for supplemental briefing on the possible res judicata effect of the
federal district court’s opinion on this appeal, and received briefing from the
parties.

7
 DISCUSSION
I. APPLICABLE LAW
“A party aggrieved by a final decision or order of a regional board . . .
may obtain review of the decision or order of the regional board in the
superior court by filing in the court a petition for writ of mandate.” (Wat.
Code, § 13330, subd. (b).) Code of Civil Procedure section 1094.5, our state’s
administrative mandamus provision, provides the procedure for judicial
review of adjudicatory decisions rendered by administrative agencies
(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11
Cal.3d 506, 514) and governs challenges to regional board orders. (Wat.
Code, § 13330, subd. (e) [“Except as provided in this section, Section 1094.5 of
the Code of Civil Procedure shall govern proceedings for which petitions are
filed pursuant to this section.”].) “The inquiry in such a case shall extend to
the questions whether the respondent has proceeded without, or in excess of,
jurisdiction; whether there was a fair trial; and whether there was any
prejudicial abuse of discretion. Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by
the evidence.” (Code Civil. Proc., § 1094, subd. (b).)
Here, the trial court ultimately concluded the Regional Board abused
its discretion in issuing the CAO and ACL Order. Because the Regional
Board’s consolidated appeals of the court’s decisions present myriad issues,
each with distinct standards of review, we shall discuss the governing law
and review standards during our analysis of each respective order.
II. THE CLEANUP AND ABATEMENT ORDER
The court set aside the CAO on multiple grounds. Among its reasons,
it found the Regional Board violated the requirements of Water Code section

8
13627, the CAO failed to satisfy the criteria for enforcement actions
contained in the Porter-Cologne Water Quality Control Act, and the CAO
conflicted with the Suisun Marsh Preservation Act. The Regional Board

contends none of these reasons have merit. We agree.
A. CAO Standard of Review
The parties do not dispute the applicable standards of review for the
CAO., Nor do we. Pursuant to Water Code section 13330, subdivision (e), the
independent judgment standard applies to the trial court’s review of a
cleanup and abatement order. (See Tesoro Refining & Marketing Co. LLC v.
Los Angeles Regional Water Quality Control Bd. (2019) 42 Cal.App.5th 453,
466–467 [“Section 13330, subdivision (e) requires the trial court to exercise
its independent judgment in reviewing the CAO issued by the Regional
Board.”].)
Under the independent judgment standard, “ ‘the trial court begins its
review with a presumption that the administrative findings are correct[.] [I]t
does not defer to the fact finder below and accept its findings whenever
substantial evidence supports them. Instead, it must weigh all the evidence
for itself and make its own decision about which party’s position is supported
by a preponderance. [Citation.] The question is not whether any rational
fact finder could make the finding below, but whether the reviewing court
believed the finding actually was correct.’ ” (Coastal Environmental Rights
Foundation v. California Regional Water Quality Control Bd. (2017) 12
Cal.App.5th 178, 187 (Foundation); see also Fukuda v. City of Angels (1999)
20 Cal.4th 805, 817 (Fukuda) [under independent judgment standard a trial
court must afford a strong presumption of correctness concerning the
administrative findings].) “[T]he party challenging the administrative

9
decision bears the burden of convincing the court that the administrative
findings are contrary to the weight of the evidence.” (Fukuda, at p. 817.)
There is also no dispute about the standard of review we must employ
on appeal. The parties agree that on factual matters, this court reviews the
trial court’s decision on the CAO for substantial evidence supporting the trial
court’s findings. We, too, agree. (See Fukuda, supra, 20 Cal.4th at p. 824
[“Where, ‘as here, the trial court is required to review an administrative
decision under the independent judgment standard of review, the standard of
review on appeal of the trial court’s determination is the substantial evidence
test.’ ”].)
“In substantial evidence review, the reviewing court defers to the
factual findings made below. It does not weigh the evidence presented by
both parties to determine whose position is favored by a preponderance.
Instead, it determines whether the evidence the prevailing party presented
was substantial—or, as it is often put, whether any rational finder of fact
could have made the finding that was made below. If so, the decision must
stand.” (Alberda v. Board of Retirement of Fresno County Employees’
Retirement Assn. (2013) 214 Cal.App.4th 426, 435 (Alberda), italics omitted.)
Also, the parties agree, as do we, that we review issues of law de novo.
(Foundation, supra, 12 Cal. App.4th at p. 190.) “We are not bound by the
legal determinations made by the state or regional agencies or by the trial
court. [Citation.] But we must give appropriate consideration to an
administrative agency’s expertise underlying its interpretation of an
applicable statute. (Building Industry Assn. of San Diego County v. State
Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 879 (Building
Industry).)
B. The Porter-Cologne Water Quality Control Act

10
 The Porter-Cologne Water Quality Control Act (Porter-Cologne or the
Porter-Cologne Act) (Wat. Code, § 13000 et seq.) expresses the public’s
“primary interest in the conservation, control, and utilization of the water
resources of the state,” and intends to advance that interest by ensuring the
protection of the “quality of all the waters of the state” for the public’s use
and enjoyment. (Wat. Code, § 13000.) Porter-Cologne was enacted in order
“to attain the highest water quality which is reasonable, considering all
demands being made and to be made on those waters and the total values
involved, beneficial and detrimental, economic and social, tangible and
intangible.” (Wat. Code, § 13000; City of Burbank v. State Water Resources
Control Bd. (2005) 35 Cal.4th 613, 619.)
The Porter-Cologne Act recognizes that the protection of water quality
can best be accomplished by statewide regulation with regional
administration. Thus, under the act, the State Water Resources Control
Board (State Board) and nine regional boards are the principal state agencies
charged with enforcing state water pollution law. (See WaterKeepers
Northern California v. State Water Resources Control Bd. (2002) 102
Cal.App.4th 1448, 1452.) Each of the nine regional boards has a
responsibility to “formulate and adopt water quality control plans” within
their region and, through those plans establish water quality objectives that
will “ensure the reasonable protection of beneficial uses [of waters of the
state] and the prevention of nuisance.” (Wat. Code, §§ 13200, 13240–13241.)
The regional board that issued the CAO here oversees the San Francisco Bay
Region, and it adopted the Basin Plan as its water quality control plan under
the Porter-Cologne Act. The Board found Respondents violated the Basin
Plan and Porter-Cologne.

11
 In addition, through Porter-Cologne, the regional boards implement the
federal Clean Water Act (33 U.S.C. § 1251 et seq.). (Conway v. State Water
Resources Control Bd. (2015) 235 Cal.App.4th 671, 675.) The Clean Water
Act prohibits the discharge of pollutants into any waters of the United States
without a permit. (33 U.S.C. § 1311.)
1. Regional Board Investigation Under Section 13267
Porter-Cologne includes Water Code section 13267 (Section 13267).
This provision authorizes a regional board to investigate the quality of the
waters of the state within the region subject to its authority. (Wat. Code, §
13267, subd. (a).) The Regional Board’s investigative power includes the
right to ask anyone who has discharged waste that could affect the quality of
waters of the state to provide the water board “technical or monitoring
program reports” under penalty of perjury. (Wat. Code, § 13267, subd. (b)(1).)
Section 13267 states: “The burden, including costs, of these reports shall bear
a reasonable relationship to the need for the report and the benefits to be
obtained from the reports. In requiring those reports, the regional board
shall provide the person with a written explanation with regard to the need
for the reports, and shall identify the evidence that supports requiring that
person to provide the reports.” (Wat. Code, § 13267.)
The trial court set aside the CAO for the Board’s failure to comply with
the requirements of Section 13267. The court reasoned the CAO had only “a
conclusory statement asserting that it complie[d] with § 13267, but [did] not
include the written explanation or otherwise explain why the burden bears a
reasonable relationship to the need.” The Regional Board contends the court
misinterpreted the duty imposed by Section 13267 and there was no violation
of Section 13267 that would warrant setting aside the order.

12
 The parties have not cited, nor have we found, any case that construes
the requirements of Section 13267. Regardless, its plain language makes
clear that in order to require a discharger to provide the Board with any
technical report, the Board must (1) provide “a written explanation with
regard to the need for the reports;” and (2) “identify the evidence that
supports requiring that person to provide the reports.” (Wat. Code, § 13267.)
Here, the CAO explained the need for the reports and identified the
evidence supporting the Board’s demand. The CAO included dozens of
findings to explain the need for the technical reports. The Board concluded
Sweeney had engaged in numerous unauthorized activities at the Site related
to his unauthorized levee construction. The Board found these unauthorized
construction activities removed crucial tidal flow to the Site’s interior, and
caused its tidal marsh areas to dry out and vegetation to die off. The Board
found Sweeney, without authorization, discharged fill material into tidal
waters at the Site. It further found Sweeney’s unauthorized activities
“adversely impacted beneficial uses at the Site including estuarine habitat,
fish migration, preservation of rare and endangered species, fish spawning,
wildlife habitat, and commercial and sport fishing.” These findings were the
basis for the Regional Board requirement that Respondents “submit technical
reports and undertake corrective action to clean up the waste discharged and
abate its effects.” They also served as the basis for its determination that
“[t]he burden of preparing technical reports required pursuant to section
13267, including costs, bears a reasonable relationship to the need for the
reports and the benefits to be obtained from the reports, namely the
restoration of beneficial uses at the Site.” Accordingly, the CAO provided
Respondents with an adequate “written explanation regarding the need for
technical reports,” and it “identif[ied] the evidence that support[ed] requiring

13
that person to provide the reports.” Nothing more was required under Section
13267, and the trial court erred in concluding otherwise.
Even if the Board was not required under Section 13267 to conduct a
formal cost-benefit analysis before seeking the reports, Respondents argue
there was nothing in the record about the burden of producing the reports,
and “nothing comparing the burden to the benefits.” They say the CAO
violated Section 13267 for this reason because it failed to provide sufficient
evidence to support its conclusion that the reports bear a reasonable
relationship to the need for them and the benefits to be obtained from them.
Not so. We recognize that Section 13627 requires the burden of conducting
site investigations and producing reports to be reasonable in light of the
benefits to be obtained. But Section 13267 contains no requirement that a
CAO include any type of weighing or cost-benefit analysis. A plain reading of
the CAO shows that the Regional Board was aware of the requirement that
the burden of reports be proportional to their anticipated benefit. Even a
brief review of the descriptions of the technical reports ordered by the Board
indicates as much. For example, one report ordered was a “Point Buckler
Restoration Plan” which was to set forth the “corrective actions designed to
restore . . the water quality functions and value of the tidal marsh . . .
existing prior to [Respondents’] unauthorized activities.” The Board’s
findings warrant the inference that the Board understood the burden of
preparing such reports were reasonably related to the benefits it aimed to
accomplish, namely, the restoration of beneficial uses at the Site.
Voices of the Wetlands v. State Water Resources Control Board (2011) 52
Cal.4th 499, cited by both the trial court and Respondents in support of their
argument on this point, does not apply. That case discussed the cost-benefit
analysis of a project required under section 316(b) of the Clean Water Act (33

14
U.S.C. § 1326(b)). (Id. at p. 507.) It requires that “the location, design,
construction, and capacity of cooling water intake structures reflect the best
technology available for minimizing adverse environmental impact.” (Id. at
pp. 507–508; see also 33 U.S.C. § 1326(b).) The case has nothing to do with
the Regional Board’s requirements for ordering technical reports under
Section 13267.
2. Regional Board Enforcement Action Under Section 13304(a)
When a regional board discovers a potential violation of Porter Cologne
or the Clean Water Act, it can pursue an enforcement action. One of its tools
is issuance of a cleanup and abatement order requiring the violator to
develop and execute a remedial plan. Water Code section 13304, subdivision
(a) (Section 13304(a)) establishes a regional board’s authority to issue a
cleanup and abatement order to any person “who has caused or permitted,
causes or permits, or threatens to cause or permit any waste to be discharged
or deposited where it is, or probably will be, discharged into the waters of the
state and creates, or threatens to create, a condition of pollution or nuisance.”
(Wat. Code, § 13304, subd. (a).) Upon order of a regional board, the
discharger shall “clean up the waste or abate the effects of the waste, or, in
the case of threatened pollution or nuisance, take other necessary remedial
action.” (Wat. Code, § 13304, subd. (a).)
The trial court found the conditions for issuing a CAO were not
satisfied. As we will explain, the trial court erred. It either drew erroneous
conclusions on issues of law, or its factual findings were unsupported by
substantial evidence.
a. Waste
The trial court concluded that Respondents did not discharge “waste”
as the term is used in Section 13304(a). In the trial court’s view, the “dirt

15
used to repair the levee” was not waste but rather “a valuable building
material, not something discarded as worthless or useless.” We conclude the
trial court employed an overly restrictive interpretation of the term “waste”
as it is used in Section 13304(a) to conclude the requirements for a cleanup
and abatement order under Porter-Cologne were not met.
Because the Porter-Cologne Act is a law “ ‘providing for the
conservation of natural resources,’ ” it is “ ‘of great remedial and public
importance and thus should be construed liberally’ [citation] so as to promote
the general object sought to be accomplished.” (Coastside Fishing Club v.
California Resources Agency (2008) 158 Cal.App.4th 1183, 1202; United
Artists Theatre Circuit, Inc. v. California Regional Water Quality Control Bd.
(2019) 42 Cal.App.5th 851, 866–867; cf. County of Los Angeles v. State Water
Resources Control Bd. (2006) 143 Cal.App.4th 985 [court defers to regional
board expertise in construing language which is not clearly defined in
statutes].)
Porter-Cologne defines “waste” as “sewage and any and all other waste
substances, liquid, solid, gaseous or radioactive, associated with human
habitation, or of human or animal origin, or from any producing,
manufacturing, or processing operation of whatever nature prior to, and for
purposes of, disposal.” (Wat. Code, § 13050, subd. (d).) Here, the parties do
not dispute what fill material was used to reconstruct the levees at the site.
Respondents used spoils from trenches excavated at the site to build up the
levees. Accordingly, whether reconstruction of the levees involved the
discharge of waste is a legal issue we review de novo.
A leading case construing the term “waste” under Porter-Cologne is
Lake Madrone Water Dist. v. State Water Resources Control Bd. (1989) 209
Cal.App.3d 163 (Lake Madrone). There, a State Board abatement order

16
required a damn operator to refrain from flushing accumulated sediment into
a creek and to submit a plan for its cleanup. (Id. at p. 167.) The released
sediment was deposited in the creek up to 18 inches deep, and “chok[ed] [the
creek’s] pools and shoreline . . . clogging its spawning areas so heavily as to
destroy fish and aquatic life.” (Id. at p. 166.) The dam operator challenged
the State Board’s view that the accumulated sediment passing through the
dam’s gate valve was “waste” within the meaning of Porter-Cologne. (Id. at
pp. 168–169.) Citing the legislative intent behind Porter-Cologne and prior
Attorney General Opinions,2 the court concluded, “There is no doubt that
concentrated silt or sediment associated with human habitation and harmful
to the aquatic environment is ‘waste’ under the statute.” (Id. at p. 169.)
Acknowledging the silt was “innocuous in its unconcentrated form,” it
explained that “by furnishing a man-made artificial location for its
concentration, the innocuous substance [was] changed into one . . . deadly to
aquatic life.” (Id. at pp. 169–170.) It found the concentrated sediment
clogging the creek associated with human habitation, as well. (Ibid.)
Here, there is no dispute that Respondents used the fill material to
replace a breached levee in order to facilitate kiteboarding or duck hunting
club purposes. Thus, the act of placing the fill in tidal marsh and tidal
waters associated the fill material with human habitation and activities.
Even though there is no claim that the fill material was contaminated or
harmful in a general sense, it was harmful as used in reconstructing the
levee in tidal wetlands. Respondents’ discharge of fill material resulted in

2 The Regional Board requests we take judicial notice of the following
two Attorney General Opinions: 27 Ops.Cal.Atty.Gen. 182 (No. 55-236, March
30, 1956) and 63 Ops.Cal.Atty.Gen. 51 (No. 79-906, January 25, 1980) [1980
WL 96799], both of which were cited in Lake Madrone, supra, 209 Cal.App.3d
163. (See id. at p. 170.) Respondents do not oppose these requests. We grant
them.

17
excess sedimentation that smothered estuarine habitat, blocked tidal flows
and direct overland tidal flooding, restricted the beneficial uses of habitat by
fish and endangered and rare species, caused the dieback of tidal marsh
vegetation, degraded habitat for waterfowl, and resulted in excessive salinity,
turbidity and discoloration of the Site’s interior waterways.
In exercising its independent review, the trial court found the fill
material created no such harm and agreed with Respondents that their levee
work did not “unreasonably affect beneficial uses.” But this finding was not
supported by substantial evidence as no rational fact finder could have
reached such a decision on the basis of the evidence in the administrative
record. When the Board responded to Respondents’ opposition to the
tentative cleanup and abatement order, the Board’s evidence demonstrated
that the Site had been a tidal marsh before the levee repair. The Board’s
expert identified the harms resulting from converting the Site from tidal
marsh to a largely dry island. There were adverse impacts to the vegetation
and soil on the island. The Technical Report documented “a mass dieback” of
marsh vegetation throughout the diked interior of the island resulting in
“growth-inhibited marsh vegetation.” The Board’s expert also presented
evidence of harm to wildlife that occurred because the levee cut off tidal
connectivity to the island. Suisun Bay including the Site was designated
critical habitat for Delta smelt and Chinook salmon, and the drainage and
diking of the Site risked reductions in food and precluded access to tidal
channels for foraging. This evidence of harm associated with Respondents’
use of the fill material made it “waste” within the meaning of Porter-Cologne.
Our interpretation aligns with the intent behind Porter-Cologne to preserve
natural resources and protect the environment. (Cf. Lake Madrone, supra,
209 Cal.App.3d at p. 169 [observing that waste could encompass discharged

18
fine-grained materials into a stream used for fishing and fish spawning if
fishery were adversely affected].)3
Respondents seek to distinguish Lake Madrone based on the value of
the fill material which they used to make “a valuable improvement to the
property,” in contrast to the sediment flow released from the dam in that
case, noting the sediment “was of no value to the dam operators, who were
discarding it as valueless.” The trial court agreed, albeit incorrectly, that the
fill material could not be waste because it was being used as a valuable
building material and not “something discarded as abandoned or useless.”
But the fact that a particular material may have commercial value does not
preclude it from being waste under the Porter-Cologne Act. We follow Lake
Madrone which clearly instructs that Porter-Cologne does not require “waste”
to be sewage or some sort of worthless byproduct. Its characterization did not
turn on the purported value of the discharged material but rather the harm it
caused to the environment. (See Lake Madrone, supra, 209 Cal.App.3d at p.
170.) Thus, despite the seemingly benign character of the fill material used
by Respondents, it could still be waste if it was harmful when used to repair
the levee.
Waste Management of the Desert, Inc. v. Palm Springs Recycling Center,
Inc. (1993) 7 Cal.4th 478, cited by Respondents for the proposition that the

3
The Regional Board requests we take judicial notice of the following
orders: State Water Resources Control Board Order No. WQ 77-5, State
Water Resources Control Board Water Quality Order No. 2004-004-DWQ.
They contend these orders are relevant to the issue of whether earthen
materials, dredge or fill material, or sediment constitutes waste under
Porter-Cologne. Respondents oppose these requests. We deny the Regional
Board’s requests as to these matters because they are unnecessary to resolve
the issues before us. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7
Cal.4th 1057, 1063 (Mangini) [“ ‘Matters otherwise subject to judicial notice
must be relevant to an issue in the action.’ ”].)

19
fill used here cannot be waste because it was useful material intentionally
deposited, is also distinguishable. There, our Supreme Court interpreted the
definition of “solid waste” in the California Integrated Waste Management
Act (Pub. Resources Code, § 40191), a statute that addresses whether the
owner of recyclable materials could sell them to someone other than “the
exclusive franchisee” selected by a city to provide “solid waste handling
services.” (Id. at p. 481.) In that context, whether the recyclable materials
could be considered waste turned on whether the owner of the materials
elected to sell them as recyclables rather than just throw them away. (Id. at
p. 486.) The court concluded that recyclables were not waste until they were
actually discarded. (Id. at p. 484.) We decline to define “waste” as the term
is used in Porter-Cologne based upon whether a material is worthless or
useless in an economic sense from the owner’s perspective. Such a
construction would not be consistent with the policy of environmental
protection that is to animate the Porter-Cologne Act.
The federal district court opinion Respondents cite, Tahoe-Serra
Preservation Council, Inc. v. Tahoe Regional Planning Agency (D.Nev. 1999)
34 F.Supp.2d 1226, 1254, is neither controlling nor applicable. There, the
court acknowledged “waste” could include sediment generated during home
construction. (Id. at pp. 1251–1254.) Its holding was that the act of building
houses was not a “discharge” or “disposal” of waste that could create a
nuisance. (Ibid.) The district court never concluded that fill material was not
waste, and its holding has no bearing on the question before us.
Respondents’ final argument on this point is that the Corps has
opined that the “definition of waste does not include discharges of dredge or
fill material.” We are not persuaded. The Corps opinion Respondents rely
upon was made in a comment letter from an official in a regional Corps office

20
to the State Board. As such, it lacks the force of law and does not warrant
any deference. (Christensen v. Harris County (2000) 529 U.S. 576, 587
[interpretations contained in an opinion letter lack force of law and do not
warrant deference]).4
For the aforementioned reasons, we also decline the invitation of
amicus to hold that the definition of waste cannot include earthen material
such as soil, sand and gravel. As the authorities make clear, it is not the
character of a material that makes a substance, organic or otherwise, waste
under Porter-Cologne, it is the uses to which the material is employed.
Moreover, not all fill material is created equal or suitable for all purposes,
and approved wetland fill may require specific properties. (Cf. Sierra Club v.
U.S. Army Corps of Engineers (11th Cir. 2007) 508 F.3d 1332, 1336.)
b. Discharge
The trial court also concluded Respondents’ activities did not constitute
“discharges” under Porter-Cologne. Because the term “discharge” is not
defined in Porter-Cologne, the trial court relied on dictionary definitions of
“discharge” that stated the term meant “[t]o allow (a liquid, gas, or other

4
We are also not persuaded that the opinion presents the official
position of the Corps, since it is inconsistent with its frequently enforced and
longstanding position that discharged sediment constitute “pollutants” under
the Clean Water Act. (See, e.g., Borden Ranch Partnership v. U.S. Army
Corps of Engineers (9th Cir. 2001) 261 F.3d 810, 814–815, aff’d 537 U.S. 99
(2002); Rybachek v. U.S. E.P.A. (9th Cir. 1990) 904 F.2d 1276, 1285-1286;
United States v. Deaton (4th Cir.2000) 209 F.3d 331, 335-336.) Indeed, the
Corps reached that conclusion with respect to the fill material Respondents
used here. Following the October 2015 Site inspection, the Corps prepared a
record memorandum which stated, “Field findings confirmed that an
unauthorized discharge of fill had occurred within waters of the U.S.” under
the Clean Water Act. On that basis, the United States sued Respondents,
and the trial court found the fill material Respondents were pollutants under
the Clean Water Act. (See Sweeney District Court Opinion, supra, 2020 WL
5203474, at pp. *22-*25.)

21
substance) to flow out from where it has been confined,” “to give outlet or
vent to,” and “[to] emit.” The court concluded that in its ordinary meaning, “
‘discharge’ . . . does not include a removal.” It observed that “[a]mong the
unauthorized activities” identified in the CAO were “the excavation of ditches
and the removal of vegetation.” As the court concluded these removals of fill
material were not “discharges” within the meaning of Porter-Cologne, the
Board had no authority to regulate Respondents’ activities under the CAO.
The parties do not dispute this common sense meaning of “discharge”
as applied to Porter-Cologne, and neither do we. Rather, whether this
element of the statute was met does not present a legal issue but a factual
one. Factually, the court erred. Its decision impliedly found that the only
activities regulated under the CAO were Respondents’ excavation of ditches
and removal of vegetation. However, no rational fact finder could have made
such a finding. Indeed, the court readily acknowledged that ditch excavation
and vegetation removal were “[a]mong the unauthorized activities” identified
in the CAO. (Emphasis added.) Numerous activities not addressed by the
trial court qualified as discharges. In their response to the 2015 CAO,
Respondents acknowledged they placed fill materials into waters at the Site
in constructing and replacing the levees. Sweeney admitted discharges by
stating the following in his declaration accompanying Respondents’ challenge
to the tentative cleanup and abatement order: “I dug out material from an
artificial ditch inside the levee and placed the material on the existing levee.
Some material was placed where the levee had been breached . . .” The trial
court’s conclusion that there were no discharges at the Site because the
unauthorized activities consisted solely of removals of fill material was error
because it completely disregarded the evidence and significance of discharges
of large amounts of fill to build and replace levees.

22
 c. Waters of the State
The trial court also concluded the Board’s issuance of the CAO did not
satisfy the requirement under Porter-Cologne that Respondents’ waste be
discharged into “waters of the state.” The court found the Regional Board’s
consultants were not credible because they initially said the Site interior was
inundated with tides on a daily basis but changed their positions when
Sweeney testified that he had never seen the interior inundated, except for
water in the channels and ditches. The trial court also found “the interior of
the [Site] (except for the channels and ditches) was dry land rather than
waters of the state,” and that most of Respondents’ work occurred on dry
land. Again, the court erred.
Porter-Cologne defines “waters of the state” as “any surface water or
groundwater, including saline waters, within the boundaries of the state.”
(Water Code, § 13050, subd. (e).) There is no real dispute that a significant
portion of Respondents’ discharges of fill material occurred in waters of the
state. The trial court’s finding that “the interior of the island (except for the
channels and ditches) was dry land rather than waters of the states”
recognizes that the Site’s “channels and ditches” were bodies of water. These
were waters of the state. Respondents do not disagree. Respondents’ Brief
addresses the Regional Board’s contentions on this point under the heading
“Most Activities Were Not In ‘Waters of the State.’ ” We consider this an
acknowledgement that at least some of Respondents’ activities were in waters
subject to Porter-Cologne jurisdiction. Nor do Respondents dispute the
Board’s expert opinion that the island’s channels and ditches were subject to
daily tidal action, thus refuting any finding that the Site consisted of only dry
land. We do not see how Respondents could credibly claim that repair and
replacement of segments of the outer levee and restriction of tidal flow into

23
some areas of the Site did not occur in waters of the state. Because
significant waters of the state were affected by Respondents’ activities, this
element of Porter-Cologne was satisfied, and the trial court’s decision to set
aside the CAO on this ground was erroneous.
d. Condition of Pollution
Finally, the trial court concluded Respondents’ activities did not create
a “condition of pollution” at the Site under Porter-Cologne. As we discussed
in our analysis of the “waste” element, the trial court rejected the Regional
Board’s finding that Respondents’ levee work unreasonably altered water
quality so as to alter beneficial uses of the water at the Site, and found there
was no direct evidence of harm to the environment. Accordingly, it concluded
Respondents’ levee work “did not unreasonably affect beneficial uses.” The
trial court went on to find the levee work actually promoted the beneficial
uses of the Site’s waters by aiding in the restoration of functioning duck
ponds. Again, the court made factual and legal errors.
Factually, the findings of no harm to beneficial uses at the Site were
unsupported by substantial evidence as no rational trier of fact could have
reached that conclusion as we explained in Section II.B.2.a., ante.
Legally, the court construed the “condition of pollution” element of
Porter-Cologne far too narrowly. A regional board is authorized to issue a
cleanup and abatement order to a discharger who “creates, or threatens to
create, a condition of pollution or nuisance.” (Wat. Code, § 13304, subd. (e).)
“Condition of pollution” is defined as “an alteration of the quality of the
waters of the state by waste to a degree which unreasonably affects the
waters for beneficial uses.” (Wat. Code, § 13050, subd. (l)(1).)
Notably, under Section 13304(a), a cleanup and abatement order can be
issued when the discharger “creates” a pollution condition or “threatens to

24
create” a condition of pollution. (Wat. Code, § 13304, subd. (a), emphasis
added.) Under the court’s interpretation, the CAO could only issue if
Respondents’ waste created or was creating a condition of pollution. The
court found “the levee work did not unreasonably affect” waters for beneficial
uses and its “the asserted harm to fish was unquantified and uncertain,” so it
set the CAO aside. The trial court’s statutory analysis failed to recognize
that threat of a condition of pollution can justify issuance of a cleanup and
abatement order. (See Wat. Code, § 13304, subd. (a), (e).) Even if we were to
accept the court’s finding that the “asserted harm to fish was unquantified
and uncertain,” the finding would not conflict with issuance of the CAO so
long as Respondents’ discharges threatened to create a condition of pollution.
There was ample evidence in the Board expert’s Technical Assessment and
response to Respondents’ submissions of likely, potential, or threatened harm
to habitat and species that the trial court could not legitimately disregard.
On this basis Porter-Cologne was satisfied, and the trial court’s decision to
set aside the CAO because there was no showing of a condition of pollution
was erroneous.
The Regional Board also argues the trial court committed legal error by
disregarding an independent basis for upholding the CAO unrelated to the
“condition of pollution” element in Section 13304(a). Read fully, the Board
argues that Water Code section 13304, subdivision (a) also allows a regional
board to issue a cleanup and abatement order when discharges of waste into
jurisdictional waters occur “in violation of [a] waste discharge requirement or
other order or prohibition issued by a regional board or the state board.”
(Wat. Code, § 13304, subd. (a).) The Regional Board contends Respondents’
violation of a discharge prohibition in the Basin Plan independently justified

25
the CAO. In light of the conclusions we reach on the CAO, we need not
consider this argument for purposes of our CAO analysis.5
C. Suisun Marsh Preservation Act
In 1977, the Legislature enacted the Suisun Marsh Preservation Act
(Preservation Act or Act), codified in Division 19 of the Public Resources
Code. The Preservation Act protects valuable natural resources within the
Suisun Marsh, and charges BCDC with the ultimate authority over its
implementation. (Pub. Resources Code, § 29000 et seq.; see also
Sustainability, Parks, Recycling & Wildlife Legal Defense Fund v. San
Francisco Bay Conservation and Development Commission (2014) 226
Cal.App.4th 905, 915–916.) As directed under the Act, BCDC prepared and
adopted the Suisun Marsh Protection Plan (Protection Plan) to “preserve the
integrity and assure continued wildlife use of the Suisun Marsh.” (Pub.
Resources Code, § 29113, subd. (a).) The Protection Plan was intended to
“preserve and enhance the quality and diversity of the Suisun Marsh aquatic
and wildlife habitats and to assure retention of upland areas adjacent to the
Marsh in uses compatible with its protection.” (BCDC, Protection Plan (Dec.
1976) [as of Feb 18,
2021] (SMPP).)6 Section 29302, subdivision (a) (Section 29302(a)) of the
Preservation Act “imposes a judicially enforceable duty on state agencies to
comply with, and to carry out their duties and responsibilities in conformity

5 The Regional Board requests we take judicial notice of Regional Water
Board Cleanup and Abatement Order No. R2-2017-1021 and Regional Water
Board Cleanup and Abatement Order No. R2-2016-1038. They contend these
orders are other issues related to the Regional Board’s authority to issue the
CAO. Respondents oppose these requests. We deny the Regional Board’s
requests as to these matters because they are unnecessary to resolve the
issues before us. (See Mangini, supra, 7 Cal.4th at p. 1063.)
6 We take judicial notice on our motion of the Protection Plan. (Evid.
Code, § 452, subdivision (c).)

26
with, this this division and the policies of the protection plan.” (Pub.
Resources Code, § 29302, subd. (a).)
The trial court concluded the Preservation Act imposed a restraint on
the Board’s authority and that the Board failed to “act[] in conformity with
the Preservation Act and the policies of the Protection Plan” in violation of
Section 29302(a) when it issued the CAO. It reached this conclusion after
finding Respondents’ “levee and excavation work was done to restore the
duck ponds at Point Buckler and provide waterfowl with food and habitat,
and that [both orders] harm[] waterfowl and their food supply and habitat by
prohibiting [Respondents] from repairing the levee, establishing duck ponds,
and planting duck food.”
In issuing the CAO, the trial court determined the Board undermined
the policy and intent of the Protection Plan to preserve and protect duck
hunting clubs as a legitimate use for wetlands, thus, according to the trial
court, the CAO was invalid. It made no matter to the trial court that the
CAO could also be authorized under Porter-Cologne. In the trial court’s view,
Porter-Cologne’s remedial directives should have been harmonized to account
for the preference for duck clubs expressed in the Protection Plan and
thereby comply with Section 29302(a). The court made a point of observing,
“[T]he Regional Board can comply with the requirements of the Preservation
Act without violating the Porter Cologne Act, and that the two statutes are
not in conflict here.”
The Regional Board contends issuance of the CAO did not violate the
Preservation Act. The Board first argues that the court’s ruling is based
upon a misreading of the Act. The Board argues that in context, Section
29302(a) does not apply to enforcement actions taken by state agencies under
authorizing provisions of state law. We agree. A reading of Section 29302(a)

27
in context confirms that it applies to agency development or control over
wetlands, not an agency’s exercise of police power. While subsection (a)
provides that agencies must act in conformity with the Preservation Act,
subsection (b) exempts agencies from the permit process for wetland
development and subsection (c) exempts agencies from specific water quality
standards or delta outflow requirements. (Pub. Resources Code, § 29302,
subds. (a),(b), (c).) Moreover, section 29301 makes clear that the
Preservation Act “does not increase, decrease, duplicate, or supersede the
authority of any existing state agency.” (Pub. Resources Code, § 29301.) As
part of the same statutory scheme, section 29301 and 29302 should be read
together and each section given its intended meaning and operable effect.
(See Sangster v. California Horse Racing Bd. (1988) 202 Cal.App.3d 1033,
1039, fn. 10 [noting “settled principle” that “ ‘[f]or purposes of statutory
construction, the various pertinent sections of [the statute] must be read
together and harmonized if possible’ ”].) A proper reading of Section 29302
makes clear that it has no impact on the regulatory authority of the Board
over wetlands, and it should not have been relied upon by the trial court to
invalidate the CAO.
But even if Respondents are correct that the Board’s enforcement
actions were subject to the Preservation Act, there still would be no violation.
The trial court’s conclusion that the Preservation Act and Porter-Cologne are
not in conflict was correct as far as it goes. But as we will explain, the court’s
ruling that the Regional Board “failed to act in conformity with the
Preservation Act and policies of the Protection Plan” was error.
The trial court’s conclusion was premised, in part, on its view that the
Regional Board’s regulatory authority over illegal discharges in the marsh
was constrained by the Preservation Act, and that the Act exempted

28
Respondents from compliance with other pollution laws. Section 29301 of the
Preservation Act makes clear neither is the case. It states, “Except as
otherwise expressly provided in this division, enactment of this division does
not increase, decrease, duplicate, or supersede the authority of any existing
state agency.” (Pub. Resources Code, § 29301, emphasis added.) The trial
court did not consider the effect of section 29301, and Respondents have not
identified any provision in the Preservation Act which expressly changes the
authority of the Regional Board, nor have we.
Section 29006, subdivision (c) of the Act supports our view of the
Board’s authority. It states: “No provision of [the Preservation Act] is a
limitation on . . . the power of the Attorney General to bring an action in the
name of the people of the state on his own motion or at the request of any
state agency having standing under provisions of law other than this
division, to enjoin any waste or pollution of the marsh.” (Pub. Resources
Code, § 29006, subd. (c).) Thus, the Preservation Act allows the Attorney
General, at the Regional Board’s request, to pursue actions to stop pollution
of wetlands. Indeed, the Attorney General’s cross-complaint against
Respondents to enforce the CAO is an exercise of such authority.
Nor does the Preservation Act exempt Respondents from compliance
with other water quality laws including Porter-Cologne and the Clean Water
Act. Section 29500 of the Preservation Act establishes that any entity
seeking to undertake a development project in the marsh “shall obtain a
marsh development permit,” which is “[i]n addition to obtaining any other
permit required by law from any local government or from a state, regional, or
local agency.” (Pub. Resources Code, § 29500, emphasis added.) This is
another provision of the act that does not appear to have been considered by
the trial court.

29
 Respondents have not identified any provision in the Preservation Act
that impairs the Regional Board’s authority to require discharge permits, or
to bring enforcement actions to curtail or remediate unlawful discharges.
Since it is clear the Preservation Act does not undercut the Regional
Board’s regulatory authority, we will address the “judicially enforceable duty”
the trial court concluded Section 29302(a) imposes on state agencies. The
trial court’s finding that Respondents’ “levee and excavation work was done
to restore duck ponds at [the Site] and provide waterfowl with food and
habitat” and that the CAO “harmed waterfowl and their food supply and
habitat by prohibiting [Respondents] from repairing the levee, establishing
duck ponds, and planting duck food” demonstrated the court’s view that the
Preservation Act favored the restoration of duck hunting clubs over any other
purposes that were intended to be served when the Regional Board issued the
CAO. According to the trial court, by issuing a CAO which undermined duck
habitat restoration and therefore harmed waterfowl and their food supply,
the Regional Board failed to comply with its “judicially enforceable duty”
under the Preservation Act. This was another error. Section 29302(a) does
not mandate the Regional Board comply with any enforceable duty
Respondents claim.
“Courts have delineated what is necessary to establish a mandatory
duty. ‘First and foremost, ... the enactment at issue [must] be obligatory,
rather than merely discretionary or permissive, in its directions to the public
entity; it must require, rather than merely authorize or permit, that a
particular action be taken or not taken.’ [Citation.] ‘It is not enough,
moreover, that the public entity or officer have been under an obligation to
perform a function if the function itself involves the exercise of discretion.’
[Citation.] Moreover, ‘[c]ourts have . . . [found] a mandatory duty only if the

30
enactment “affirmatively imposes the duty and provides implementing
guidelines.” ’ [Citation.] ‘ “ ‘[T]he mandatory nature of the duty must be
phrased in explicit and forceful language.’ [Citation.] ‘It is not enough that
some statute contains mandatory language. In order to recover plaintiffs
have to show that there is some specific statutory mandate that was violated
by the [public entity].” ’ ” (State Dept. of State Hospitals v. Superior Court
(2015) 61 Cal.4th 339, 348–349 (State Hospitals).) Whether a particular
statute imposes “a mandatory duty, rather than a mere obligation to perform
a discretionary function, is a question of statutory interpretation for the
courts.” (Creason v. Department of Health Services (1998) 18 Cal.4th 623,
631.)
Section 29302(a) sets forth no mandatory duty directing state agencies
to carry out activities in a manner favorable to duck hunting clubs. In fact,
Section 29302(a) makes no reference to such clubs. Rather, it provides that
state agencies must carry out their responsibility in conformity with “this
division and the policies of the protection plan.” (Pub. Resources Code, §
29302.) Such broad language did not impose a specific mandatory duty on
the Regional Board. (See State Hospitals, supra, 61 Cal.4th at p. 350 [“A
mandatory duty is created only when an enactment requires an act that is
clearly defined and not left to the public entity’s discretion or judgment.”].)
Section 29302(a)’s reference to “this division” refers to the Preservation
Act, and the Act does not specify any mandatory duty or fealty to duck clubs.
The Preservation Act is codified in seven chapters of the Public Resources
Code and consists of scores of statutory provisions reflecting multiple
objectives and directives for the protection of Suisun Marsh. (See Pub.
Resources Code, §§ 29000–29612.) The trial court did not identify or discuss
any provision in the Preservation Act that would obligate the Regional Board

31
to exercise its enforcement authority in a manner friendly to duck clubs.
Respondents suggest such a duty is imposed by section 29002 of the Act. But
that provision is an all-encompassing statement of legislative findings7 that
describes the marsh and its role as critical habitat for waterfowl and other
wildlife. (Pub. Resources Code, § 29002.) It states “ the policy of the state to
preserve and protect resources of this nature for the enjoyment of the current
and succeeding generations” but it does not establish a clearly defined duty
that prescribes how a state agency must carry out its enforcement duties in
service of such policies. Nor does it elevate the preservation of duck hunting
clubs over tidal wetlands or instruct the agency to prioritize habitat for
waterfowl over other wildlife, including endangered species.

7
Public Resources Code section 29002 states in full: “The Legislature
hereby finds and declares that the Suisun Marsh, consisting of approximately
55,000 acres of marshland and 30,000 acres of bays and sloughs, and
comprising almost 10 percent of the remaining natural wetlands in
California, plays an important role in providing wintering habitat for
waterfowl of the Pacific Flyway; that during years of drought the area
becomes particularly important to waterfowl by virtue of its large expanse of
aquatic habitat and the scarcity of such habitat elsewhere; that the area
provides critical habitat for other wildlife forms, including such endangered,
rare, or unique species as the peregrine falcon, white-tailed kite, golden
eagle, California clapper rail, black rail, salt-marsh harvest mouse, and
Suisun shrew; that the existence of this wide variety of wildlife is due to the
relatively large expanse of unbroken native habitat and the diversity of
vegetation and aquatic conditions that prevail in the marsh; that man is an
integral part of the present marsh ecosystem and, to a significant extent,
exercises control over the widespread presence of water and the abundant
source of waterfowl foods; that the Suisun Marsh represents a unique and
irreplaceable resource to the people of the state and nation; that future
residential, commercial, and industrial developments could adversely affect
the wildlife value of the area; and that it is the policy of the state to preserve
and protect resources of this nature for the enjoyment of the current and
succeeding generations.” (Pub. Resources Code, § 29002.)

32
 The “policies of the Protection Plan” do not contain any clearly defined
duty to promote duck hunting clubs to the exclusion of all other Suisun
Marsh policies.8 There are more than 50 enumerated policies across a half
dozen areas in the Protection Plan, and there is no indication that certain
policies take precedence over others.
Respondents contend that notwithstanding its multiple objectives, the
Preservation Act “was enacted to preserve duck clubs and duck habitat.”
Respondents rely on two Plan policies to support this proposition. First, they
cite the “Land Use and Marsh Management” policy which states “managed
wetlands . . . should be included in a primary management area” and within
such area, “existing uses should continue.” They note that duck clubs are
managed wetlands and further observe certain findings under this policy
endorse the “[p]rovision of habitat attractive to waterfowl” and the
“[i]mprovement of water distribution and levee systems.” The second policy
they cite is a Recreation and Access policy which states, “Continued
recreational use of privately-owned managed wetlands should be
encouraged.” It is possible that these two policies would be served by the
duck hunting club Respondents endeavored to restore, but they are not the
Protection Plan’s only policies or anywhere designated as its most important

8
The “policies of the protection plan,” a defined term, refers to “the
policies set forth in Part II . . . of the protection plan.” (Pub. Resources Code,
§ 291113, (b).) Part II of the Protection Plan sets forth myriad “Findings and
Policies” in several different categories. For examples, under the category
“Environment,” four policies are enumerated. Under the category “Water
Supply and Water Quality,” twelve distinct policies are identified. Under the
category “Natural Gas Resources,” six policies are listed, one which has four
subsections and another which has ten. The “Utilities, Facilities and
Transportation” has ten policies. The “Recreation and Access” category list
five policies. Under the “Water-Related Industry” category, there are seven
policies. In the “Land Use and Marsh Management” category, 17 policies are
enumerated. (See generally SMPP, supra.)

33
ones. Other Plan policies, many of which appear to have equal value as
beneficial uses that would be served by implementation of the CAO, were
simply not considered by the court. The Plan contains no directives to state
agencies charged with implementing a statutory scheme that seeks to
advance more than 50 policy objectives that they are to favor any single
objective over any other. Nor is there any instruction for how state agencies
subject to the Preservation Act are to weigh policies which conflict or compete
with each other. Absent such specific directives, entities subject to the Plan
or charged with enforcing it are given considerable discretion in how they
carry out their activities in conformity with the Plan’s policies. The
Preservation Act did not impose a mandatory duty on the Regional Board to
follow any particular policy supportive of duck clubs when pursuing an
enforcement action.
III. ACL ORDER
The trial court also set aside the ACL Order on multiple grounds.
Among other reasons, it found the ACL Order violated the Eighth
Amendment’s prohibition against excessive fines, was in conflict with the
Preservation Act, and was the result of a vindictive prosecution. Throughout
its analysis, it found the Regional Board’s findings were not supported by the
evidence. The Regional Board contends none of these reasons were valid or
justified discarding the ACL Order, and the assessed penalties were proper.

As we will explain, we agree.

A. Standard of Review
In contrast to their agreement on the standards of review that applied
to the CAO, the parties disagree on the standards of review applicable to the
ACL Order.
1. The Trial Court’s Review of ACL Order

34
 The first dispute focuses on whether the trial court applied the proper
standard in its review of the ACL Order. The Regional Board asserts that
“the trial court was to review the findings in the [ACL Order] under the
substantial evidence standard” but failed to do so. Respondents contend that
each of the issues they raised to challenge the ACL Order requires a different
standard of review. They contend “the trial court should have applied its
independent judgment” to review of the Board’s findings, but acknowledge
“the applicable standard is not clear.” We conclude the trial court should
have reviewed the Regional Board’s findings for substantial evidence.
As here, when a party challenges a final regional board order in a
petition for writ of mandate under Code of Civil Procedure section 1094.5,
abuse of discretion is established and a writ of mandate should issue if an
agency either failed to proceed in the manner required by law, did not
support its decision with adequate findings, or if its findings are not
supported by the record. (Wat. Code, § 13330, subd. (b); Code Civ. Proc., §
1094.5, subd. (b).)
Section 1094.5, subdivision (c) presents two distinct standards of
review a trial court is to use when determining whether an agency abused its
discretion: “Where it is claimed that the findings are not supported by the
evidence, in cases in which the court is authorized by law to exercise its
independent judgment on the evidence, abuse of discretion is established if
the court determines that the findings are not supported by the weight of the
evidence. In all other cases, abuse of discretion is established if the court
determines that the findings are not supported by substantial evidence in the
light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)
As directed by Water Code section 13330, subdivision (e), the trial
court’s review of an administrative civil liabilities order is governed by the

35
substantial evidence standard. “For the purposes of subdivision (c) of Section
1094.5 of the Code of Civil Procedure, the court shall exercise its independent
judgment on the evidence in any case involving the judicial review of . . . a
decision or order of a regional board for which the state board denies review
under Section 13320, other than a [civil liability] decision or order issued
under Section 13323.” (Wat. Code, § 13330, subd. (e), emphasis added; see
Wat. Code, § 13323, subd. (a) [“any executive officer of a regional board may
issue a complaint to any person on which administrative civil liability may be
imposed pursuant to this article”].) Thus, a trial court does not exercise its
independent judgment on the evidence when it reviews administrative civil
liability orders as it would if it were reviewing cleanup and abatement orders.
(Ante, Section II.A.) Accordingly, while the trial court could exercise its
independent judgment in reviewing the CAO, its standard for the ACL Order
was substantial evidence.
“In substantial evidence review, the reviewing court defers to the
factual findings made below. It does not weigh the evidence presented by
both parties to determine whose position is favored by a preponderance.
Instead, it determines whether the evidence the prevailing party presented
was substantial—or, as it is often put, whether any rational finder of fact
could have made the finding that was made below. If so, the decision must
stand.” (Alberda, supra, 214 Cal.App.4th at p. 435 ; see also Marina County
Water Dist. v. State Water Resources Control Bd. (1984) 163 Cal.App.3d 132,
138 [under substantial evidence review, superior court’s “task would have
been merely to determine whether there was substantial evidence in the
record, taken as a whole, to support the Board’s action, whether the court
itself would have come to the same conclusion on that evidence or not”].)

36
 Respondents argue that because the Regional Board’s decision affected
a fundamental vested right “the trial court should have applied its
independent judgment” to the evidence. Generally, “[i]f the administrative
decision involved or substantially affected a ‘fundamental vested right,’ the
superior court exercises its independent judgment upon the evidence
disclosed in a limited trial de novo in which the court must examine the
administrative record for errors of law and exercise its independent judgment
upon the evidence. [Citations.] The theory behind this kind of review is that
abrogation of a fundamental vested right ‘is too important to the individual to
relegate it to exclusive administrative extinction.” (JKH Enterprises, Inc. v.
Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056–1057
(JKH Enterprises).) “On the other hand, ‘[w]here no fundamental vested
right is involved, the superior court’s review is limited to examining the
administrative record to determine whether the adjudicatory decision and its
findings are supported by substantial evidence in light of the whole record.’ ”
(Id. at p. 1057.)
We recognize that “[a]s a general rule, ‘[u]nless expressly provided,
statutes should not be interpreted to alter the common law, and should be
construed to avoid conflict with common law rules.’ ” (California Assn. of
Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284,
297.) But here, Water Code section 13330, subdivision (e) expressly rejects
the independent judgment standard as the basis for the trial court’s review of
administrative civil liability orders, and Code of Civil Procedure section
1094.5, subdivision (c) directs trial courts to review such decisions for
substantial evidence.

37
 2. This Court’s Review of the Trial Court Decision
Next, we move to the standard of review we are to employ on appeal,
which the parties also contest. The Regional Board argues that we apply the
same substantial evidence standard the trial court should have applied,
“giving no deference to the trial court and reviewing de novo whether the
Board’s findings in the ACL were supported by substantial evidence in the
entire record.” Respondents, on the other hand, assert that “this Court
reviews the trial court’s findings for substantial evidence.”
We will apply the same standard the trial court should have applied
and review the Board’s findings for substantial evidence. (See Fort Mojave
Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574,
1590 [“[I]f the court should have employed the alternative, substantial
evidence test, its determinations would be subject to review by applying the
same test, de novo, to the administrative record.”]; cf. Ogundare v.
Department of Industrial Relations (2013) 214 Cal.App.4th 822, 828 [“
‘Regardless of the nature of the right involved or the standard of judicial
review applied in the trial court, an appellate court reviewing the superior
court’s administrative mandamus decision always applies a substantial
evidence standard.’ ”].) In doing so, “[w]e review the administrative record to
determine whether the agency’s findings were supported by substantial
evidence, resolving all conflicts in the evidence and drawing all inferences in
support of them.” (JHK Enterprises, supra, 142 Cal.App.4th at p. 1058.)
Of course, we review the trial court’s legal determinations under the de
novo standard. (Building Industry, supra, 124 Cal.App.4th at p. 879;
Foundation, supra, 12 Cal.App.4th at p. 190; Imperial Irrigation Dist. v. State
Water Resources Control Bd. (1990) 225 Cal.App.3d 548, 553.) This means
“we are not bound by the legal determinations made by the state or regional

38
agencies or by the trial court . . . [b]ut we must give appropriate consideration
to an administrative agency’s expertise underlying its interpretation of an
applicable statute.” (Building Industry, supra, at p. 879.)
B. The Basin Plan and Clean Water Act
The ACL Order was premised on discharges in violation of the Regional
Board’s Basin Plan and the Clean Water Act. The Regional Board alleged
two violations in its ACL Complaint. The first alleged was that Respondents
violated Discharge Prohibition No. 9 (Prohibition 9) in the Basin Plan and
section 301 of the Clean Water Act (33 U.S.C. § 1311) for the discharge and
continued placement of approximately 8,500 cubic yards of fill into waters of
the State and the United States. The second violation alleged that
Respondents failed to obtain a certification for the discharge of dredged or fill
material into navigable waters of the United States as required by section
401 of the Clean Water Act (Section 401 Certification). The ACL Order
issued based on these discharges. The trial court concluded the Regional
Board’s findings that justified the ACL Order were not supported by
substantial evidence. Several of its reasons were not rooted in considerations
of substantial evidence, but whatever the reasons, the trial court erred.
1. Grounds for Decision
The Regional Board adopted the Basin Plan pursuant to Water Code
section 13240, as the “legal, technical, and programmatic bases of water
quality regulation in the [r]egion.” (Wat. Code, § 13240; Basin Plan, § 1.4 <
https://www.waterboards.ca.gov/sanfranciscobay/basin_planning.html> (as of
Feb. 18, 2021) (Basin Plan).)9 To protect water quality, the Basin Plan
includes 18 discharge prohibitions that apply throughout the region, and

9 The Regional Board requests we take judicial notice of the Basin Plan
prohibition it found Respondents violated. Respondents do not oppose this
request. We grant the request.

39
must be met at all times. (Id., § 4.2.) Prohibition 9 forbids the discharge of
“[s]ilt, sand, clay, or other earthen materials from any activity in quantities
sufficient to cause deleterious bottom deposits, turbidity or discoloration in
surface waters or to unreasonably affect or threaten to affect beneficial uses.”
(Id., Table 4-1: Discharge Prohibitions.)
Section 301 of the Clean Water Act prohibits the discharge of
pollutants into any waters of the United States without a permit. (33 U.S.C.
§ 1311.) To discharge fill into waters of the United States, one must apply to
the Corps for a Clean Water Act section 404 dredge and fill permit (404
Permit) or a Rivers and Harbors Act section 10 permit (for pier construction).
(33 U.S.C. §§ 1344, 403.) In order to receive a 404 Permit, the applicant,
unless exempt, must obtain a Section 401 certification from the state where
the discharge originates or construction occurs. (33 U.S.C. § 1341(a)(1).)
Applications for such certification in California are filed with a regional
board’s executive officer. (Cal. Code Regs., tit. 23, § 3855.) The 404 Permit
cannot issue unless the regional board provides a water quality certification.
(33 U.S.C. § 1341(a).) The certification may add conditions to the Corps’
permit to ensure that the proposed activity will comply with water quality
standards and “any other appropriate requirement of State law.” (33 U.S.C. §
1341(d).) Under Water Code section 13385, subdivision (a), a person who
violates Clean Water Act sections 301 or 401 “shall be liable civilly.” (Wat.
Code, § 13385, subd. (a)(5).)
In its statement of decision, the trial court expressed multiple,
overlapping reasons why, even without issuance of a permit or certification,
Respondents did not violate the Basin Plan or the Clean Water Act. As
discussed below, none of its reasons justified setting aside the ACL Order.
a. Waters of the United States

40
 Just as in its CAO decision, the trial court concluded the ACL Order
was invalid because the Regional Board did not demonstrate that
Respondents’ fill material was discharged into “waters of the United States.”
It found “the evidence would not be enough to establish that the island (other
than interior channels and ditches) is waters of the United States.”
As with the CAO, the court’s rationale overlooks the fact that at least
some of Respondents’ discharges of fill material occurred in waters of the
United States. The trial court’s finding that “the evidence would not be
enough to establish the island (other than the interior channel and ditches) is
waters of the United States” recognizes that the island’s water filled
“channels and ditches” were jurisdictional waters. Respondents do not
disagree. Because at least some waters of the United States were impacted
by Respondents activities, the trial court erred in setting aside the ACL
Order on this ground.
b. Harm to Beneficial Uses
The trial court also found “the evidence [was] not sufficient to support
the conclusion that the levee work adversely affected beneficial uses”, nor
could it “support a finding that that the levee work violated requirements in
the basin plan that prohibit discharges into surface waters that affect
beneficial uses.”
Had the court applied the substantial evidence standard to the
Regional Board’s findings, as we do, it would have acknowledged ample
evidence of the levee work’s harm beneficial uses. In the Board’s response to
Respondents’ opposition to the ACL Complaint, the Board’s expert presented
evidence and opinions similar to those presented in support of the CAO. His
reports provided evidence the Site was tidal marsh before Respondents’ levee
construction. He also identified the harm that resulted from converting the

41
Site, which included the loss of food production into the surrounding channels
where fish feed and the loss of shallow water habitat in the island’s tidal
channels where fish would spawn. The expert also presented evidence that
mass vegetation die-off occurred and endangered fish were harmed because
the levee cut off tidal connectivity to the island. There was ample evidence
that Respondents’ activities unreasonably affected or threatened to affect
beneficial uses.
c. Whether Findings Support the Decision
In an apparent reference solely to the Basin Plan violation, the court
concluded “[t]here is no finding about which requirements are at issue, and
no reference to the administrative record that makes the reference clear.”
The grounds for the Basin Plan violation are in the ACL Complaint, which
states Respondents “discharged and the Club permitted continued placement
of approximately 8,586 cubic yards of fill into waters of the State and United
States, violating Basin Plan Prohibition No. 9 and Clean Water Act section
301. The fill remains in waters of the State and United States, and is
contributing to the ongoing degradation of approximately 27.1 acres of
surface water and wetlands at the Site.” The analysis accompanying the
ACL Complaint further explains the reasons for the Basin Plan violation
with reference to the administrative record. Over the course of the
enforcement proceeding, the Board submitted evidence supporting the factual
bases for these violations. The ACL Order was sufficiently supported by the
Board’s finding that Respondents’ activities violated Prohibition 9.
d. Number of Discharges
The trial court also concluded that the evidence did not support the
Regional Board’s conclusion that the violation was continuous and had
exceeded 1,000 days by the time of the ACL hearing. In the court’s view,

42
“[b]ecause the violation requires a discharge, and the discharge requires an
addition, the violation ended when the addition stopped.” The Regional
Board argues the trial court erred when it rejected the number of days
Respondents were in violation of the law as the basis for calculating the
penalty.
From the time levee construction began in early 2014 through the date
of the ACL hearing in December 2016, the Regional Board determined
Respondents’ violation had occurred for 1,013 days and was continuing. The
number of days the condition existed was used as a multiplier to determine
Respondents’ maximum liability prior to any adjustments.
We see no reason to address the legal issue that would require us to
define the temporal nature of discharges. Generally, courts decide actual
controversies rather than academic propositions. (Bell v. Board of
Supervisors (1976) 55 Cal.App.3d 629, 636–637.) At the ACL hearing, a
member of the Regional Board prosecution team who worked on the penalty
determination explained the basis for the penalty imposed, saying: “The $4.6
million penalty corresponds to the base liability related to volume of fill
discharge, and does not include liability for days of violation.” Thus, while
the continuous nature of the violation factored into initial liability
calculations, the daily tally was not used to calculate the $4.6 million penalty
that was ultimately proposed. Accordingly, it was not relevant or material to
the $2.8 million ACL Order the Board ultimately assessed. We later address
the propriety of the ACL Order’s penalty amount. (See post, Sec. III.C.3.)
2. Issue Preclusion
In supplemental briefing, the Regional Board contends that legal
conclusions and factual findings recently made by the district court in a
separate enforcement action against Respondents control issues in this case

43
related to the Clean Water Act under issue preclusion principles of res
judicata. Res judicata “ ‘preclud[es] parties from contesting matters that they
have had a full and fair opportunity to litigate,’ ” and “protect[s] against ‘the
expense and vexation attending multiple lawsuits, conserve judicial
resources, and foster reliance on judicial action by minimizing the possibility
of inconsistent decisions.’ ” (Taylor v. Sturgell (2008) 553 U.S. 880, 892.)
In the Sweeney District Court Opinion, supra, 2020 WL 5203474, the
district court entered judgment in favor of the plaintiff United States against
Respondents. (Id. at p.*44.) The district court determined “Sweeney violated
and remains in violation of the Clean Water Act . . . as a result of
unpermitted, non-exempt construction of a levee and other additions of
pollutants (dredged or fill material) . . . to waters of the United States . . . on
Point Buckler Island. . .” (Ibid.) The court also found the Club in violation of
the Clean Water Act for Sweeney’s actions. (Id. at p. *45.) In reaching its
decision, the district court made several factual findings. It found that
Respondents’ levee blocked tidal flow into the island resulting in the
destruction of wetlands vegetation and harm to water quality and aquatic
habitat that adversely affected fish. (Id. at pp. *16–18.) In determining that
Respondents violated the Clean Water Act, the court concluded as a legal
matter that Respondents’ discharges occurred in “waters of the United
States” because “at the time [Respondents] initiated their activities, Point
Buckler Island consisted almost entirely of tidal-water channels and marsh
wetlands abutting tidal waters . . . and [Respondents] discharged pollutants
into those aquatic waters.” (Id. at pp.*26–32.)
The Regional Board contends the doctrine of issue preclusion applies to
the district court’s determination that Respondents violated Clean Water Act
section 301.

44
 There is no need for us to analyze the application of issue preclusion in
this case. Our conclusions that the ACL Order is supported by substantial
evidence and that none of the other grounds asserted in the court’s decision
for setting aside the ACL Order were correct obviates any need to apply the
federal findings.10
C. Eighth Amendment
The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” (U.S. Const., 8th Amend.)
The Eighth Amendment prohibition on excessive fines “ ‘limits the
government’s power to extract payments, whether in cash or in kind, “as
punishment for some offense.” ’ ” (United States v. Bajakajian (1998) 524
U.S. 321, 328 (Bajakajian).) The California Constitution contains a similar
protection. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37
Cal.4th 707, 728 (R.J. Reynolds).) The touchstone of constitutional inquiry
under the excessive fines clause is proportionality. (Bajakajian, at p. 334.)
The amount of the fine must bear some relationship to the gravity of the
offense that it is designed to punish, and a fine that is grossly disproportional
to the gravity of the defendant’s offense violates the excessive fines clause.
(Ibid.) In deciding the matter, we consider “(1) the defendant’s culpability;
(2) the relationship between the harm and the penalty; (3) the penalties
imposed in similar statutes; and (4) the defendant’s ability to pay.” (R.J.
Reynolds, at pp. 728, 730.)

10
Respondents make several requests for judicial notice in association
with their opposition to the Regional Board’s res judicata arguments. Since
we need not address the res judicata argument, we deny the Respondents’
requests as unnecessary to resolve the issues before us. (See Mangini, supra,
7 Cal.4th at p. 1063.)

45
 “We review de novo whether a fine is constitutionally excessive and
therefore violates the Eighth Amendment’s Excessive Fines Clause.” (United
States v. Lewis (9th Cir. 2003) 62 Fed.Appx. 757, 762; see also Cooper
Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 435–36
(Cooper).). Factual findings made by the trial court in conducting the
excessiveness inquiry, of course, must be accepted unless clearly erroneous.”
(Bakakajian, supra, 524 U.S. at pp. 434436, fn.10.)
The trial court found the penalty was “grossly disproportional to the
gravity of Plaintiffs’ offense.” This was because it considered Respondents’
culpability to be low; the penalty was grossly disproportional to the harm
caused; there was a gross disparity between penalties imposed by the
Regional Board for similar behavior; and Respondents could not afford to pay
the penalty imposed. The Board contends the penalty was not
constitutionally excessive.
We agree with the Board. The trial court’s findings were based on the
improper exercise of its independent judgment, so we will disregard them.
There was substantial evidence in the administrative record to support the
Board’s findings that bear on each prong of the constitutional analysis. We
also reach different legal conclusions than the trial court.
1. Respondents’ culpability
The trial court found Respondents’ culpability was low. It based this
conclusion largely on Sweeney’s testimony. Sweeney said that he contacted
certain state agencies before beginning work and “came away with the
understanding that no permits were needed.” The court also credited
Sweeney’s testimony regarding his belief that permits were needed only for
islands submerged by the tides whereas the Site was “high and dry” as well
as his ignorance about the need for “[Clean Water Act section] 401

46
certifications” from the Regional Board. The court also found no evidence
that marsh landowners commonly understood levee work requires permits or
that Clean Water Act certifications were common knowledge. Because the
court’s findings were based improperly on its exercise of independent
judgment and weighing of the evidence, we do not accept them.
Had the court correctly applied the substantial evidence standard to
the Regional Board’s findings, as we do, it would have acknowledged ample
evidence of Respondents’ high culpability. Years before his purchase of the
Site, Sweeney had experience with various government agencies with
jurisdiction over Suisun Marsh at another property he owned. His levee work
there resulted in illegal discharges of fill contrary to permit conditions and
direction from the relevant agencies, and he was found in violation for his
work. Sweeney had also been involved with other duck hunting clubs in
Suisun Marsh and had prior experience securing permits for maintenance
activities that would discharge fill into the marsh. He had previously
communicated by email with state agencies for permits to repair a levee
breach at one of those clubs. In addition, there was ample evidence that
Sweeney continuously performed work at the Site after regulators directed
him to stop. These experiences sufficiently demonstrated Sweeney’s willful
indifference toward the regulatory process and a knowing rejection of the
need to apply for permits in order to work at the Site. These facts
demonstrated Sweeney’s high culpability.
2. Relationship between the harm and the penalty
The trial court also concluded the penalty was “grossly disproportional
to the harm.” It based this conclusion on a finding that the Regional Board
had not established that fish used the channels at the Site or that there was
harm to any specific endangered species of fish. The court, on the other hand,

47
viewed the benefits to the environment of duck ponds over tidal marsh were
“clear and definite.” It found that had Respondents’ been allowed to complete
their levee work, they would have “created a net benefit for the environment
rather than a harm.” Again, the court’s improper exercise of its independent
judgment led it to err, and we cannot validate its finding.
Had the court applied the substantial evidence standard to the
Regional Board’s finding, as we do, it would have acknowledged that the
substantial penalty correlated with the major harm caused by Respondents’
activities. The Board’s expert presented ample evidence that Respondents’
levee construction converted the Site from tidal marshland and adversely
impacted beneficial uses at the Site including estuarine habitat, fish
migration, preservation of endangered species, fish spawning, and wildlife
habitat. (See ante, Section III.B.1.b.) In consideration of these impacts, the
Board categorized the harm caused by Respondents as “major” when
determining the penalty. Since there was substantial evidence to support
this assessment in the record, we conclude Respondents caused significant
harm and it was reasonably related to the significant penalty imposed.
3. Penalties imposed in similar statutes
This factor has been explained “as the sanctions imposed in other cases
for comparable conduct.” (Cooper, supra, 532 U.S. at p. 435.) The trial court
found “a great disparity between the non-existent or modest penalties the
Regional Board has imposed for similar behavior, and the severe penalty
imposed here.” It observed that the “top-ten Regional Board penalties have
generally been reserved for discharges of millions of gallons of untreated
sewage and discharges resulting in hundreds of observably dead fish,” and
this case posed “no threat to public health or observably dead fish.” It also

48
observed that “there is no evidence that the Regional Board has ever imposed
any penalties on duck clubs in [the] Marsh for levee work.”
We are not persuaded that the $2.8 million penalty was not comparable
to other cases or unreasonable. The ACL Complaint originally proposed a
$4.6 million penalty for Respondents’ alleged unauthorized discharges. It
included a 14-page exhibit explaining its method for arriving at the proposed
penalty in accordance with the State Board’s Water Quality Enforcement
Policy methodology for assessing civil liabilities. The prosecution team
considered, and explained, how it considered numerous statutory criteria to
determine the liability including the nature and extent of Respondents’
violations; the degree of toxicity of the discharge; the economic benefits to
Respondents from the discharges; and other factors similar to the ones
considered in our constitutional analysis here. The $4.6 million penalty
originally proposed fell between the maximum liability amount of
$39,211,860 and the minimum amount of $1,550,859 and reflected the
continuing and harmful nature of Respondents’ violations. (See Ojavan
Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 398
[$9.5 million civil penalty against a developer for 73 violations of Coastal Act
not excessive].) While significant, the $4.6 proposed penalty already reflected
reductions recommended by the prosecution on the basis of factors as justice
required. A member of the Board’s prosecution team testified that one
adjustment was made to be consistent with earlier Regional Board orders
involving a single entity’s dredging and fill. Even at the proposed $4.6
million, the prosecution team found it to be “in line with other actions taken
by this Regional Water Board and the resulting harm caused by Dischargers’
conduct.” At the ACL hearing, a prosecution team member compared the
proposed $4.6 million penalty to a $5 million settlement the Regional Board

49
had recently entered with a municipal entity “for a similar discharge and fill,
Clean Water Act violations.” This is enough to satisfy us that the $2.8
penalty that was ultimately imposed was not disproportionately high.
4. Ability to pay
The trial court concluded that Respondents could not afford to pay the
$2.8 million penalty. Based on “evidence from Sweeney and a financial
expert,” the court found the Regional Board overestimated Respondents’ net
worth by not accounting for “obvious liabilities,” including the costs of
compliance imposed by the CAO (which it had concurrently set aside). The
court’s conclusion again resulted from its improper exercise of independent
judgment, and we cannot accept the court’s findings.
Had the court applied the substantial evidence standard to the
Regional Board’s findings, as we do, it would have acknowledged substantial
evidence of Respondents’ ability to pay. The Regional Board prosecution staff
completed just such an analysis in support of the proposed $4.6 million
penalty. It considered Respondents’ net cash flow and net worth. The
analysis acknowledged that the most complete and accurate accounting of
such information comes from an entity’s own disclosures, which Respondents
did not provide. Absent such direct disclosures from Respondents, the
prosecution team reviewed public records for assets belonging to Respondents
which included other property Sweeney purchased. It also considered other
assets, such as Point Buckler, duck club membership sales, and funds from a
Tiburon property Sweeney recently sold. Based on the available information
and the lack of any objective financial information from Respondents refuting
its analysis, the prosecution team concluded Respondents could pay the
original proposed penalty. (Cf. State of California v. City and County of San
Francisco (1979) 94 Cal.App.3d 522, 530–531 [once evidence established a

50
statutory violation under Water Code provision, defendant had burden to
establish the court should impose penalty less than statutory maximum].)
The Board itself recognized it “did not have sufficient evidence to do any
adjustments based on the ability to pay. . . . [b]ecause we, at the end of all of
this, [did] not have documented evidence of Mr. Sweeney’s net worth or cash
flow, or anything close.” On this record, there was sufficient evidence
supporting Respondents’ ability to pay the penalty.
Moreover, the trial court’s findings were clearly erroneous and could
not survive any standard of review. The evidence from Sweeney consisted of
a declaration attesting to the lack of net taxable income, but he failed to
provide any objective information about Respondents’ financial condition that
could support his conclusion (e.g., financial statements, tax returns) even
though he had the opportunity to do so. The evidence from the financial
expert was also weak. The expert, a Certified Public Accountant, opined that
Sweeney had a negative net worth, after reviewing the prosecution team’s
analysis and information told to him by Sweeney. But he made clear “there
[had] been no verification of any of the information provided by Mr.
Sweeney.” This evidence provides no support for the court’s inability to pay
finding.
In light of our analysis, we cannot conclude the $2.8 million assessed in
civil penalties was “grossly disproportional” to the gravity of the offense so as
to violate the Eighth Amendment’s proscription against excessive fines.
D. Suisun Marsh Preservation Act
Just as it did with the CAO, the trial court concluded when the
Regional Board issued the ACL Order, it failed to “act[] in conformity with
the Preservation Act and the policies of the Protection Plan” in violation of
Section 29302(a). The court employed the same Preservation Act analysis it

51
had used to set aside the CAO to set aside the ACL Order for violating
Section 29302(a). We incorporate our earlier analysis here (see ante, Section
II.C.) and for the same reasons conclude that the trial court’s determination
that issuance of the ACL Order violated Section 29302(a) was error.
E. Vindictive Prosecution
“The constitutional protection against prosecutorial vindictiveness is
based on the fundamental notion that it ‘would be patently unconstitutional’
to ‘chill the assertion of constitutional rights by penalizing those who choose
to exercise them.’ ” (In re Bower (1985) 38 Cal.3d 865, 873.) When a
“defendant shows that the prosecution has increased the charges in apparent
response to the defendant’s exercise of a procedural right, the defendant has
made an initial showing of an appearance of vindictiveness.” (People v.
Puentes (2010) 190 Cal.App.4th 1480, 1486.) “Once this prima facie case is
made, the prosecution bears a ‘heavy burden’ of dispelling the appearance of
vindictiveness as well as actual vindictiveness.” (Ibid.) We review the trial
court’s factual findings for substantial evidence and its legal determinations
de novo. (People v. Sanchez (2020) 49 Cal.App.5th 961, 983.)
In its statement of decision invalidating the ACL Order, the trial court
observed that the parties had not identified any civil case in which the
vindictive prosecution doctrine was applied, but nonetheless concluded, “It
may be the rare civil case in which a party can make the prima facie showing
needed, but in this case the showing has been made.” The court found the
penalties were “imposed in retribution for [Respondents’] lawsuit challenging
the Regional Board’s September 2015 order.” It further chided the Board for
making no attempt to show the penalties were not imposed for vindictive
reasons and said the Board “ha[d] not met its burden of dispelling the
appearance of vindictiveness as well as actual vindictiveness.” The Regional

52
Board contends there was no basis for the vindictive prosecution finding. We
agree.
As an initial matter, Respondents cite no authority, and we have found
none, that applies the vindictive prosecution doctrine outside of criminal
proceedings. We conclude the court erred in its novel application of the
doctrine and in setting aside the ACL Order for this reason. The vindictive
prosecution doctrine has also not yet been held to apply to proceedings before
administrative bodies.
Even if we assume, without deciding, that the doctrine can apply and
that Respondents made a prima facie case, there was substantial evidence
disregarded by the trial court that rebutted the presumption. The Regional
Board had contemplated imposing civil liability on Respondents months
before Respondents filed the petition for writ of mandate that led to the stay
of the 2015 CAO and the Board’s eventual decision to rescind it. In July
2015, Respondents’ conduct was internally referred to the Board’s
enforcement unit for preparation of an administrative civil liability
complaint. That same month, the initial notice of violation was served on
Respondents and informed them that “[a]ny person who violates is . . . subject
to administrative civil liability.” The 2015 CAO also informed Respondents
that their “failure to comply [with the CAO] may result in the imposition of
civil liabilities.” Thus, civil liabilities against Respondents were considered
by the Board well before Respondents filed suit over the 2015 CAO. This
evidence was sufficient to dispel the appearance of vindictiveness.
There was also substantial evidence to dispel actual vindictiveness. As
discussed in our Eighth Amendment analysis (see ante, Section III.C.), the
record included the Board’s detailed analysis showing how it arrived at the
proposed penalty in accordance with the State Board’s Water Quality

53
Enforcement Policy methodology for assessing civil liabilities. The
prosecution team considered and explained how its application of numerous
statutory criteria to determine Respondents’ liability including the nature
and extent of the violations; the degree of toxicity of the discharge; the
economic benefits to Respondents from the discharges; and other factors. The
eventual $4.6 million proposed penalty corresponded to the base liability
calculation related to volume of fill discharged by Respondents. Thus, the
record included clear analysis regarding the grounds for and amount of the
ACL Order, which was plainly connected to the continuing and harmful
nature of Respondents’ violations, and not vindictiveness or retaliatory
intent.
IV. FAIR HEARING (APPLICABLE TO CAO AND ACL ORDER)
Code of Civil Procedure section 1094.5, subdivision (b)’s “requirement of
‘a fair trial’ means that there must have been ‘a fair administrative hearing.’
” (Lateef v. City of Madera (2020) 45 Cal.App.5th 245, 252; Code Civ. Proc., §
1094.5, subd. (b) [inquiry in administrative mandamus cases extends to the
question “whether there was a fair trial”].) Because the ultimate
determination of procedural fairness presents a question of law, we “review
the fairness of the administrative proceeding de novo.” (Doe v. University of
Southern California (2016) 246 Cal.App.4th 221, 239; TWC Storage, LLC v.
State Water Resources Control Bd. (2010) 185 Cal.App.4th 291, 296.)
The trial court concluded that Respondents did not receive a fair trial
in either the CAO or ACL hearing. The Regional Board contends the
proceedings were fair. We agree with the Board. As we will explain, the trial
court again erred. Moreover, Respondents’ additional arguments on appeal
do not persuade us otherwise.
A. Separate Functions

54
 “One of the basic tenets of the California [Administrative Procedure
Act] . . . is that, to promote both the appearance of fairness and the absence of
even a probability of outside influence on administrative hearings, the
prosecutorial and, to a lesser extent, investigatory, aspects of administrative
matters must be adequately separated from the adjudicatory function.”
(Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 91,
italics omitted; Govt. Code § 11425.10, subd. (a)(4) [“The governing procedure
by which an agency conducts an adjudicative proceeding is subject to [the
requirement that] [t]he adjudicative function . . . be separated from the
investigative, prosecutorial, and advocacy functions within the agency . . .”].)
“[B]y itself, the combination of investigative, prosecutorial, and
adjudicatory functions within a single administrative agency does not create
an unacceptable risk of bias and thus does not violate the due process rights
of individuals who are subjected to agency prosecutions.” (Morongo Band of
Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731,
737 (Morongo).) “The due process right to an impartial administrative
decisionmaker is protected when staff counsel performing a prosecutorial role
are distinct from counsel playing an advisory role in the same matter and the
counsel are screened from each other.” (Drakes Bay Oyster Co. v. California
Coastal Com. (2016) 4 Cal.5th 1165, 1175.)
“To prove a due process violation based on overlapping functions thus
requires something more than proof that an administrative agency has
investigated and accused, and will now adjudicate. ‘[T]he burden of
establishing a disqualifying interest rests on the party making the assertion.’
. . . That party must lay a ‘specific foundation’ for suspecting prejudice that
would render an agency unable to consider fairly the evidence presented at
the adjudicative hearing … it must come forward with ‘specific evidence

55
demonstrating actual bias or a particular combination of circumstances
creating an unacceptable risk of bias’…. Otherwise, the presumption that
agency adjudicators are people of ‘conscience and intellectual discipline,
capable of judging a particular controversy fairly on the basis of its own
circumstances’ will stand unrebutted.” (Today’s Fresh Start, Inc. v. Los
Angeles County Office of Education (2013) 57 Cal.4th 197, 221–222.)
The trial court ruled that Respondents did not receive a fair hearing, in
part, because the Regional Board failed to separate functions. Observing the
Board had identified a prosecution team and an advisory team, the court
suggested impropriety because the CAO and ACL Order were written by the
prosecution team rather than the advisory team.11 The court added that the
“advisory team did not take an active role in the judicial decision-making
function on the substantive legal and factual issues in dispute,” and thus
“relied on the prosecution team, which was biased in favor of its own
positions.” For these reasons, the court found the Regional Board “appeared
to be biased in favor of the prosecution team, and against [Respondents].” In
their appellate brief, Respondents describe the Board as simply “rubber-
stamping” the prosecution team’s proposed orders as a form of improper
separation. They also assert functions were not separated because “Bruce
Wolfe, the Board’s Executive Officer, commingled prosecutor and decision-
making functions.”

11
It is customary for the prevailing party in litigation to provide the
decision-maker with a proposed decision. (See Cal. Rules of Court, Rule
3.1312.) That appears to be just what happened in each of these companion
cases in the trial court, and we are not aware of any authority that concludes
it is a violation of due process for the decision maker to adopt a proposed
decision in an administrative or judicial proceeding as its final ruling.
Respondents cite no authority that suggests simply the adoption of a
proposed decision is improper.

56
 We have no reason to conclude Respondents received unfair hearings
because the agency purportedly shirked an obligation based on insufficiently
separated functions. The evidence shows the Board’s duties were separated.
The hearing procedures for both the CAO and ACL explained: “To help
ensure the fairness and impartiality of this proceeding, the functions of those
who will act in a prosecutorial role by presenting evidence for consideration
by the Regional Water Board (Prosecution Team) have been separated from
those who will provide advice to the Regional Water Board (Advisory Team).”
After identifying the specific individuals in each team, the Board further
explained: “Any members of the Advisory Team who normally supervise any
members of the Prosecution Team are not acting as their supervisors in this
proceeding, and vice versa. Members of the Prosecution Team may have
acted as advisors to the Regional Water Board in other, unrelated matters,
but they are not advising the Regional Water Board in this proceeding.
Members of the Prosecution Team have not had any ex parte communications
with the members of the Regional Water Board or the Advisory Team
regarding this proceeding.” At the outset of both hearings, the Board Chair
repeated this separation of functions. The separation of prosecution and
advisory roles was followed in both proceedings.
Further, the trial court concluded there was no separation of powers
but identified no threat to fairness that occurred as a result. The trial court’s
findings were based on the appearance of bias but lacked “ ‘specific evidence
demonstrating actual bias or a particular combination of circumstances
creating an unacceptable risk of bias.’ ” (Morongo, supra, 45 Cal.4th at p.
741; see also Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d
781, 792 [“ ‘Bias and prejudice are never implied and must be established by
clear averments.’ ”].) Respondents’ contention that the Board merely “rubber-

57
stamped” the tentative cleanup and abatement order is also unsupported by
any evidence. The record shows, and Respondents do not dispute, that the
Board adhered to its procedures governing adjudicatory hearings before the
Board. (See Cal. Code. Regs., tit. 23, § 648 et seq.) Absent such evidence of
actual bias or evidence that the Board failed to maintain internal separation
and created a risk of bias, we presume the Board evaluated the factual and
legal arguments on their merits.
Respondents’ reference to the Board’s Executive Officer Bruce Wolfe
does not provide evidence of improper separation. Initially, they claim that
the Board’s failure to separate functions when Wolfe issued the 2015 CAO
constitutes a due process violation. The Regional Board does not dispute that
prosecutorial and advisory functions were not separated when Wolfe issued
the 2015 CAO. But the 2015 CAO was rescinded, and was no longer at issue.
The Board’s functions were separated for the enforcement actions at issue in
this appeal. Although Respondents point to Wolfe’s addition to the advisory
team in these enforcement actions, they objected to his participation, and by
early June 2016—within a month of the objection—the Board Chair agreed to
remove him from the advisory team. There is no indication he participated in
either a prosecutorial or advisory capacity at either hearing. Indeed, at the
CAO hearing, the Board chair expressly acknowledged someone had “stepped
into the role that Bruce Wolfe would normally serve.” As an indicator of
Wolfe’s ongoing involvement, Respondents refer to the CAO which required
Respondents to submit various corrective action plans “acceptable to the
Executive Officer.” We are not persuaded. By that time, the CAO had been
adjudicated without Wolfe’s participation.
B. Board Rulings

58
 The trial court also found Respondents received unfair CAO and ACL
hearings because the Board purportedly failed to decide all the issues needed
to resolve the dispute and failed to consider factual and legal issues raised by
Respondents. In their appellate brief, Respondents say they contested the
CAO with “29 pages of legal arguments [to which] the Board said absolutely
nothing.” They allude to the same perceived deficiency in the ACL hearing
process.
We have no reason to conclude Respondents received unfair hearings
because the agency shirked a purported obligation to decide every legal and
factual issue raised by Respondents. As the trial court recognized, the
California Administrative Procedure Act only requires that an administrative
decision following an adjudicative proceeding “shall be in writing and shall
include a statement of the factual and legal basis for the decision.” (Gov.
Code, § 11425.50, subd. (a).) There is no requirement that the agency provide
a written response to every issue raised by the parties. Here, the CAO
included over 75 findings, and the ACL Order included over a dozen findings
and an extensive analysis explaining its methodology for determining the
civil liabilities imposed. Both asserted facts and made findings in support of
the violations found and attendant penalties. This satisfied Respondents’
entitlement to due process.
C. Insufficient Trial Time
The trial court found Respondents received unfair hearings because the
Board did not allow sufficient time for trial. For the CAO hearing,
Respondents had been given one hour to present their case, which the court
found was “not enough to try a case as complex as this one” and insufficient
to give Respondents “a fair opportunity to present their opening statement,
examine their percipient witnesses, cross-examine the prosecution team’s

59
witnesses, and make their closing argument.” The court further found “the
short time gave the appearance that the Regional Board was not interested in
determining the truth, but rather . . . it intended and expected to rely on
staff, as it usually did, to provide the facts and law.” The court observed that
Respondents were allowed “two hours” for the ACL hearing but deemed it
inadequate for “[a] case of this complexity,” which “calls for sufficient time so
that the Regional Board can do more than decide how much of a penalty to
impose.” Respondents assert the insufficient trial time in both proceedings
rendered the Board incapable of resolving the factual issues they raised.
We have no reason to conclude Respondents received unfair hearings
because of inadequate time. There is no requirement that hearings last for
any particular amount of time (see Cal. Code Regs., tit. 23, § 648 et seq.), and
reasonable time limitations are necessary and inevitable. (Cf. Reed v.
California Coastal Zone Conservation Com. (1975) 55 Cal.App.3d 889, 895
[petitioners who were restricted to 10 minutes’ oral argument at hearing and
never objected not denied due process].) Here, the Board doubled the amount
of time originally allotted to each party in advance of the CAO hearing so
that each party had one hour. The CAO hearing lasted for almost 4 hours
and included extensive questioning of both sides by Board members.
Similarly, the Board doubled the amount originally allotted to each party in
advance of the ACL hearing so that each party had two hours. In both
hearings, the time allotment was reasonable and did not offend due process.
Further, in adopting the CAO and issuing the ACL Order, the Board made
dozens of findings of fact addressing the disputes between the parties.
D. Submission of Evidence and Arguments
In their appellate brief, Respondents contend the Board’s procedures
“condoned staff sandbagging.” In their view, they were “sandbagged” because

60
the Board submitted their evidence and arguments in reply to the
Respondents’ oppositions to the proposed enforcement orders. This was not
evidence of unfairness. Again, the record shows, and Respondents do not
dispute, that the Board adhered to procedures governing adjudicatory
hearings before the Board. (See Cal. Code. Regs., tit. 23, § 648 et seq.) The
authority Respondents rely on pertaining to summary judgment procedures
in litigation does not apply.
E. Availability of Hearing
In their appellate brief, Respondents assert the Board “showed
disrespect for due process and the rule of law” because the Board did not
provide “either a pre-deprivation or post-deprivation hearing on the [2015
CAO].” This argument is borderline frivolous. The Board rescinded its 2015
CAO, and it is no longer at issue. Respondents received full hearings prior to
the issuance of both the CAO and ACL Order.
F. The Regional Board’s Expert
In their appellate brief, Respondents assert “the Board’s principal
expert was biased against John Sweeney,” and offer this as another reason
the hearings were unfair. The expert at issue was Stuart Siegel. Both
Sweeney and the Board considered retaining Siegel as an expert, and the
Board eventually retained him. He was the principal author of the Board’s
Technical Assessment. Respondents describe personal animosity between
Sweeney and Siegel, and at one point after being retained by the Board,
Siegel emailed several people the following: “BE CAREFUL in dealing with
Sweeney. I’ve been doing a little recently. . . . HIGH RISK situation.”
Respondents contend Siegel’s personal animosity towards Sweeney and
“financial interest in discrediting Mr. Sweeney’s accusations of fraud, which
could have threatened his consulting practice” evidenced bias. They also

61
argue the “great deference” the Board accorded Siegel for both his
assessments and legal analysis demonstrated bias.
These contentions do not present evidence of bias, nor do they describe
circumstances that create an unacceptable risk of bias. As Respondents
recognize, Siegel was the expert for the prosecution team, not a part of the
advisory team or the Board. As such, he was a witness not a decisionmaker
and any animosity he had towards Sweeney was irrelevant to whether
Respondents received a fair hearing from the Board. Also, since Siegel was
not an adjudicator, his purported “financial interest” is not the type of
“pecuniary interest” that establishes the improper bias that affects
adjudication. (See Haas v. County of San Bernardino (2002) 27 Cal.4th 1017,
1025 [financial interest of adjudicator raises due process concerns].)
Respondents’ deference argument is not supported by evidence or authorities,
so we will not entertain it. (See, e.g., Nickell v. Matlock (2012) 206
Cal.App.4th 934, 947 (Nickell) [conclusory assertions in brief unsupported by
citations to evidence or legal authority are forfeited].)
G. Totality of the Circumstances
The trial court also concluded Respondents received did not receive fair
hearings under the totality of the circumstances. Although adjudicators are
presumed to be impartial, “the presumption of impartiality can be overcome”
by “a particular combination of circumstances creating an unacceptable risk
of bias.” (Morongo, supra, 45 Cal.4th at p. 741.) This is sometimes referred
to as the “totality-of-the circumstances approach.” (Id. at p. 740.) Since we
have concluded none of the individual grounds Respondents asserted for an
unfair trial was proper, we conclude there was no particular combination of
those circumstances that created an unacceptable risk of bias. Under the

62
totality of the circumstances, neither the CAO nor ACL Order should have
been set aside.
H. Additional Fairness Issues Related to ACL Hearing
In its ACL decision, the court noted “other evidence of unfairness”
Respondents argued to the trial court, including “(a) ex parte communications
by a Regional Board member who was eventually disqualified, (b)
testimonials by Regional Board members during trial endorsing the
prosecution team, (c) the Regional Board’s unwillingness to keep Sweeney’s
private financial information confidential, combined with his criticism of him
for not providing more financial information, (d) reliance by Regional Board
members on incorrect personal knowledge, (e) unawareness by Regional
Board members of Plaintiff’s arguments, (f) blindness of Regional Board
members to weaknesses in the prosecution’s team’s arguments, and (g)
evidence that the Regional Board does not fairly interpret and apply the law,
but rather interprets it to support the decisions.” Beyond identifying these
arguments, the trial court did not address, analyze, or otherwise rule on
these contentions. In their appellate brief, Respondents argue all points as
further evidence of unfair hearings. Except for the first issue regarding ex
parte communications, we shall not consider these additional arguments.
These arguments either present issues rejected elsewhere in the parties’
briefs and in our opinion, or they are unsupported by any authority
establishing such conduct as bias or evidence of an unfair hearing. (See
Nickell, supra, 206 Cal.App.4th at p. 947.)
Respondents proffer two incidents of ex parte communications
involving a Board member which they say reinforced the appearance of
unfairness and created an appearance of bias. First, they claim the Board
member “initiated a secret communication with the prosecution team about

63
the merits of the case.” Second, they assert the same Board member, in
communicating with an environmental group which had appeared before the
Board against Sweeney, described a statement Sweeney made on social
media as “a lie.” The “secret communication” was a one-way communication
by the Board member to a prosecution team member expressing his view that
the ACL penalty was too high. The statement the Board member said was a
“lie” was a comment Sweeney made on social media that the Board member,
who was also a member of BCDC, had “succeeded in getting the act of
kiteboarding in public waters a fine of $30k.” Even if we assume these
communications were prohibited, they do not overcome the presumption of
impartiality afforded the adjudicators. At the outset of the ACL hearing, the
Board member at issue recused himself, left the hearing, and took no part in
deciding the ACL Order. In light of his recusal, Respondents have not
persuaded us that the hearing was unfair.
V. OTHER ISSUES
In both of its decisions, the trial court made rulings on additional issues
not otherwise addressed in our analysis. In its CAO decision, the trial court
(1) sustained Respondents’ objections to portions of the administrative record
submitted by the Regional Board; (2) denied the Regional Board’s motion to
strike Respondents’ opening brief; and (3) denied the Regional Board’s motion
to enforce the CAO. Likewise, in reviewing the ACL Order, the trial court (1)
denied the Regional Board motion to strike Respondents’ opening brief, and
(2) sustained Respondents’ objections to portions of the administrative record
submitted by the Regional Board. The trial court also expressly declined to
rule on “several requests for judicial notice, to augment the record, and to
correct the record” on the grounds that such requests “appear[ed]
unnecessary to resolve the principal issues in this case.” The Regional Board

64
challenges several of these issues on appeal. Because we reverse the
judgments on substantive grounds and shall direct the trial court to deny
Respondents’ motions for writs of mandate with respect to both the CAO and
ACL Order, we need not resolve these issues, which are unnecessary to our
decision.
DISPOSITION
The judgment on the CAO in Solano County Superior Court Case No.
FCS048136 and the judgment on the ACL Order in Solano County Superior
Court Case No. FCS048861 are reversed, and the writs of mandate are
vacated. The matters are remanded to the trial court with directions to deny
Respondents’ petitions for writs of mandate and requests to set aside the
CAO and ACL Order, and for further proceedings consistent with this
opinion.
The Regional Board’s cross-complaint seeking to enforce the CAO and
ACL Order is reinstated.
Appellants are awarded costs on appeal.

65
 _________________________
Siggins, J.*

WE CONCUR:

_________________________
Fujisaki, Acting P.J.

_________________________
Jackson, J.

*
Assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

66
Trial Court: Solano County
Superior Court

Trial Judge: Hon. Harry S. Kinnicutt

Counsel:

Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant
Attorney General, Annadel A. Almendras, Supervising Deputy Attorney
General, Matthew G. Bullock, Daniel S. Harris, Deputies Attorney General,
Joshua Patashnik for Appellants.

John Briscoe, Lawrence S. Bazel, Briscoe Ivester & Bazel, LLP, for
Respondents

Kerry Shapiro, Martin Patrick Stratte, Jeff Mangels Butler & Mitchell, LLP.
Amicus for Respondents.

67