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LORING BRUNIUS et al., Cross-complainants and Appellants, v. JOHN PARRISH et al., Cross-defendants and Respondents. COURT OF APPEAL, C047380 COUNSEL Law Office of Freda D. Pechner and Freda D. Pechner for
Cross-complainants and Appellants. Bill Lockyer, Attorney General, Tom Greene and Mary E.
Hackenbracht, Assistant Attorneys General, and Ralph J. Venturino, Deputy
Attorney General, for Cross-defendants and Respondents. OPINION SIMS, J APPEAL from a judgment of the In response
to a complaint filed by the People of the State of California ex rel. Controller Steve Westly, to
recover surface mine inspection costs from mine operators pursuant to the
Surface Mining and Reclamation Act of 1975 (Pub. Resources Code, § 2710 et seq.[1] (SMARA)),
defendants/cross-complainants Loring Brunius and Thelma Brunius, doing business
as Sierra Rock, filed a cross-complaint, alleging violation of civil rights (§
1983[2]), against cross-defendants -- the
State Mining and Geology Board (the Mining Board), Mining Board members (Brian
Baca, Robert Griego, Larry Fanning, Robert Hablitzel, Julian C. Isham, Allen M.
Jones, Richard Ramirez, and Robert Tepel), Mining Board agent Stephen Testa,
and Mining Board employee John Parrish.
The trial court sustained cross-defendants’ demurrer to the
cross-complaint on the ground that the state and its officers are immune from
section 1983 claims. Cross-complainants
appeal from the judgment dismissing their cross-complaint, contending
cross-defendants were acting as county actors under SMARA rather than state
actors at the time in question. We shall
affirm the judgment. FACTUAL
In October
2003, a complaint for recovery of surface mine inspection costs was filed by
the People of the State of California ex
rel. Controller Steve Westly, on behalf of the Mining Board, pursuant to
section 2774, subdivision (b), (which makes mining operators responsible for
inspection costs), and Government Code section 12418 (which authorizes the
Controller to institute suits to collect money due the state). The complaint named as defendants the cross-complainants
who filed this appeal and others who are not parties to this appeal. The complaint alleged the Mining Board is a
nine-member state board within the Department of Conservation, which is an
executive agency in the State Resources Agency.
(§§ 601, 660; Gov. Code, § 12805.) The complaint alleged the Mining Board “is
charged with, among other things, representing the State’s interest in the
development, utilization, and conservation of the mineral resources of the
State, the reclamation[[3]] of mined lands, and the maintenance of an adequate surface
mining and reclamation policy. (§
672.) In this matter, the [Mining Board]
was acting as the lead agency in Cross-complainants
filed an answer denying responsibility for the inspection costs and a
cross-complaint for violation of civil rights under section 1983. The cross-complaint alleged as follows: The Mining
Board at all pertinent times was “acting as the local lead agency” under SMARA
and acted under color of state law.
Testa was an agent of the Mining Board, acting under color of law and in
the scope of his agency, and is sued in both his individual and official
capacities. By engaging in “some of the
conduct described here,” Testa exceeded the authority vested in him as an agent
of the Mining Board, while “other described conduct” was at the direction of
the Mining Board and the other cross-defendants. Parrish was an employee of the Mining Board,
acting under color of law and in the scope of his employment, and is sued in
both his individual and official capacities.
Some (unspecified) conduct by Parrish was at the direction of the Mining
Board, while other (unspecified) conduct exceeded his authority. The other individual cross-defendants were
members of the Mining Board. “Cross-Defendants,
and each of them, have intentionally treated Cross-complainants differently
from others similarly situated, in that Cross-Defendants have claimed that
certain aspects of Cross-complainants’ quarry operations, at the Weber Creek
Quarry and Diamond Quarry, located in El Dorado County, were in ‘violation’ of
various laws and regulations applicable to California mines, and, based upon
such alleged ‘violations’, have undertaken punitive actions against
Cross-complainants, including, but not limited to, orders demanding that
Cross-complainants cease and desist from operating the quarries, imposition of
millions of dollars in administrative penalties, and the refusal to consider
any evidence produced by Cross-complainants demonstrating that their mine
operations were not in violation of any laws or regulations. [Cross-]Defendants, and each of them, have
not undertaken similar actions against any other similarly situated quarry, and
there is no rational basis for the difference in treatment between
Cross-complainants’ quarries and such other similarly situated quarries. The conduct of cross-Defendants, and each of
them, is in violation of the equal protection clause of the Fourteenth
Amendment, as such conduct is, and was, irrational, intentional and wholly
arbitrary discrimination, by the improper execution of applicable statutes and
laws, through duly constituted agents.” The
cross-complaint sought compensatory and punitive damages, attorney’s fees, and
such other relief as the court may deem proper.
In March
2004, cross-defendants filed a motion to strike punitive damages and a demurrer
that argued, among other things, the cross-complaint was invalid in that the
state, its agencies and officials are not subject to liability under section
1983, because section 1983 imposes liability on “person[s],” and federal and
state case law holds that states and their agencies and officials acting in
their official capacity are not “persons” for section 1983 purposes.[4]
Cross-complainants
filed an opposition that did not address the critical issue of state immunity
from section 1983 suit. The trial
court sustained the demurrer without leave to amend, on the following
grounds: The Mining Board is immune from
prosecution under section 1983 because the state is not a “person” subject to
liability under section 1983. The same
immunity barred suit against the individual cross-defendants who were alleged
to have acted only in their official capacities. Although Testa and Parrish were alleged to
have also acted under color of state law in their individual capacities, the
only acts alleged were the imposition of the inspection costs and other actions
that by their very nature were actions of the state only, not the
individuals. Cross-complainants failed
to allege any invidious discrimination.
The allegation that similarly situated quarries were not prosecuted for
inspection costs did not suffice to allege a section 1983 violation. Counsel’s declaration offered no facts that
would cure the defects. The court also
granted the motion to strike punitive damages.
Cross-complainants
appeal from the ensuing judgment dismissing the cross-complaint. DISCUSSION I. Standard
of Review “On appeal
from a judgment dismissing an action after sustaining a demurrer without leave
to amend the standard of review is well settled. The reviewing court gives the complaint a
reasonable interpretation, and treats the demurrer as admitting all material
facts properly pleaded.” (Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 966-967.) We review the
complaint de novo to determine whether it alleges facts stating a cause of
action under any legal theory. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) II. Immunity
Cross-complainants
assert the issue on appeal is whether the state’s immunity from being sued
under section 1983 protects state entities from section 1983 liability solely
by virtue of their mere status as a
state board and their mere status as
members and agents of that state board, despite the fact that, pursuant to the
California statutory scheme, they functioned as county actors. Cross-complainants acknowledge the Mining Board
is a state agency, but they argue “the one activity that gives rise to this
litigation [is] the act of the [Mining Board] in performing inspections
pursuant to the county’s SMARA authority.”
We agree
with cross-defendants, however, that SMARA specifically provides for the state,
through the Mining Board, to take back the regulatory powers previously
delegated to a local agency when, as here, the local government is not properly
administering the state statutory program.
In taking over direct regulation of the mines in a county, the Mining
Board not only retains its status as a state agency, but functions as one as
well, just as SMARA contemplates. Both sides
on appeal complain the other side is making arguments that were not made in the
trial court. However, even assuming the
arguments were not tendered in the trial court, they present questions of law
that do not turn on disputed facts, and we may consider new theories on appeal
from the sustaining of a demurrer. (B & P Development Corp. v. City of
Saratoga (1986) 185 Cal.App.3d 949, 959.) A. Section
1983 “Neither
states nor state officials acting in their official capacities are ‘person[s]’
within the meaning of section 1983 when sued for damages. (Will
v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71, fn. 10 [(Will v. Michigan)] [105 L.Ed.2d
45].) [Citation.]” (Pitts
v. County of Kern (1998) 17 Cal.4th 340, 348 (Pitts) [issue of whether district attorney was policymaker for the
county was one of law, and state law supported conclusion that district
attorney represented the state, not the county, when preparing to prosecute and
when prosecuting crimes, and when establishing policy and training employees in
these areas].) “‘[T]he State and arms of
the State . . . are not subject to suit under [section] 1983 in
either federal court or state court.’” (Id. at p. 348, citing Howlett v. Rose (1990) 496 U.S. 356, 365
[110 L.Ed.2d 332] and Will v. Michigan,
supra, 491 U.S. at pp. 63-64, 71, fn. 10 [105 L.Ed.2d 45].) In construing section 1983, the United States
Supreme Court said the states’ Eleventh Amendment[5] immunity from suit in federal
courts was a separate issue, but it was a consideration. (Will
v. Michigan, supra, 491 U.S. at pp. 66-67 [105 L.Ed.2d 45].) Another consideration was the common law
doctrine of sovereign immunity, pursuant to which a state cannot be sued in its
own courts without its consent. (Ibid.)
If an entity enjoys Eleventh Amendment immunity, it is also immune from
suit under section 1983, even in state court. (Kirchmann
v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1103
[school district was arm of state and therefore immune from section 1983
suit].) While state
officials literally are “persons,” a suit against a state official in his or her
official capacity[6] is not a suit against the official
but rather is a suit against the official’s office, and therefore it is no
different from a suit against the state itself.
(Pitts, supra, 17 Cal.4th at
p. 350, citing Will v. Michigan, supra,
491 U.S. at p. 71.) In
contrast, local governments, including counties, are subject to suit under
section 1983, where the allegedly unconstitutional action implements or
executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers, or governmental custom. (Pitts,
supra, 17 Cal.4th at pp. 348-349, citing Monell v. “The
availability of immunity from liability under section 1983 in state court is
governed by federal, not state, law.
[Citation.]” (Pitts, supra, 17 Cal.4th at p.
350.) However, in determining whether an
officer is a state or county actor, the court must examine state law to
determine whether the particular acts the official is alleged to have committed
fall within the range of state or county functions. (Id.
at p. 352, citing McMillian v. Monroe
County, supra, 520 U.S. at pp. 785-786 [138 L.Ed.2d 1].) B. SMARA
We find
persuasive cross-defendants’ analysis that they functioned at all times as
state actors. The
background of SMARA was recently set forth in People ex rel. Dept. of Conservation v. El Dorado County (2005) 36
Cal.4th 971, a case involving Brunius’s quarries, which held the Director of
the Department of Conservation had standing to file a petition for writ of
mandate challenging reclamation plans and financial assurances for surface
mining operations approved by El Dorado County.
The opinion described the statutory background as follows: “‘Within
the Resources Agency is the Department of Conservation (the Department). The head of the Department is an executive
officer appointed by the Governor, known as the Director. (§ 601.)
The Department’s work is divided into at least four divisions: mines and geology; oil, gas, and geothermal
resources; land conservation; and recycling.
(§ 607.) “‘Also in
the Department is the nine-member State Mining and Geology Board. (§ 660.) . . . The Board represents the
state’s interests in the development, utilization, and conservation of mineral
resources in “‘The
Legislature [in adopting SMARA] intended to create and maintain an effective
surface mining and reclamation policy to prevent or minimize adverse
environmental effects, reclaim mined lands to a usable condition which is
ad[a]ptable to alternative uses, and encourage the production and conservation
of minerals while giving consideration to values relating to recreation,
watershed, wildlife, range and forage, and aesthetic enjoyment. (§ 2712.) “‘At the
heart of SMARA is the requirement that every surface mining operation have a
permit, a reclamation plan, and financial assurances. (§ 2770, subd. (a).) . . . The financial
assurances must remain in effect for the duration of the mining operation and
until reclamation is complete and shall be made payable to the lead agency and
the Department. (§ 2773.1, subd.
(a)(2).) The financial assurances may be
forfeited if the lead agency or the Board determines the operator is
financially incapable of performing reclamation in accordance with the approved
reclamation plan, or has abandoned its surface mining operation without
commencing reclamation. (§ 2773.1, subd.
(b).) “‘In
keeping with the recognition of the diverse conditions throughout the state,
SMARA provides for “home rule,” with the local lead agency having primary
responsibility. A lead agency is usually
the city or county. (§ 2728.) The mining operator submits the reclamation
plan and financial assurances to the lead agency for review. (§§ 2770, subd. (d), 2772.) The Board, through regulations, specifies
minimum statewide reclamation standards.
(§ 2773.) A lead agency, however,
may permit a mining operation to deviate from these standards, if necessary
based on the approved end use. ( “‘To
implement its review of proposed reclamation plans and financial assurances,
every lead agency is to adopt ordinances in accordance with state policy. (§ 2774, subd. (a).) The Board shall review these ordinances and
certify that they are in compliance with state policy. (§ 2774.3.)
If the Board finds deficiencies in the lead agency’s ordinance, the
Board shall communicate the deficiencies to the lead agency. (§ 2774.5, subd. (a).) After an opportunity to revise the ordinance
to comply with state policy, if the Board finds the ordinance is still
deficient, the Board shall assume full responsibility for review of reclamation
plans. (§ 2774.5, subd. (b).) If the lead agency does not have a certified
ordinance, reclamation plans shall be submitted to and approved by the
Board. (§ 2774.5, subd. (c).) The Board may amend any reclamation plan that
was approved by a lead agency at the time the lead agency’s ordinance did not
comply with state policy. (§ 2774.5,
subd. (c).) “‘Prior to
approving reclamation plans and financial assurances, the lead agency submits
the proposals and all supporting documentation, including information from any
document prepared, adopted or certified pursuant to CEQA,[[7]] to the Director for review.
(§ 2774, subd. (c).) The Director
then may prepare written comments, if he chooses, within 30 days for
reclamation plans and 45 days for financial assurances. (§ 2774, subd. (d)(1).) The lead agency shall prepare written
responses to the Director’s comments, describing disposition of the major
issues raised. In particular, the lead
agency shall explain in detail why any specific comments and suggestions were
not accepted. (§ 2774, subd. (d)(2).) Thus, although the lead agency must evaluate
and respond to the Director’s comments, it need not always accept them. “‘If a lead
agency fails to approve a reclamation plan or financial assurances, an appeal
may be taken to the Board. (§ 2770,
subd. (e).) As originally enacted, SMARA
did not contain enforcement provisions. (Stats. 1975, ch. 1131, § 11, pp.
2793-2803.) As the author explained,
SMARA did not contain enforcement provisions “because the bill provides for a
local regulatory program. Enforcement
provisions would be embodied in local ordinances.” “‘In 1990,
in response to concerns about deficiencies of lead agencies in carrying out
their responsibilities under SMARA, the Legislature substantially amended
SMARA. The amendments provided for
various types of enforcement, against both mine operators and lead agencies. Enforcement against mine operators includes
notices of violations and fines. (§
2774.1, subds. (a)-(c).) The lead agency
has primary responsibility for enforcing SMARA against mine operators. (§ 2774.1, subd. (f)(1).) Where the Board is not acting as the lead
agency, the Director may initiate enforcement actions where (1) the Director
has notified the lead agency of the violation and the lead agency fails to take
action within 15 days, or (2) the Director determines the violation amounts to
imminent and substantial endangerment to the public health or safety, or to the
environment. (§ 2774.1, subd.
(f)(1).) Similarly, the Director may
take actions to seek forfeiture of financial assurances where the lead agency
has failed to act or has been unsuccessful.
(§ 2773.1, subd. (d).) “‘Where the
lead agency fails to fulfill its duties under SMARA, the Board may take over
the powers of a lead agency, except for permitting authority. The Board may step in if it finds that a lead
agency has: (1) approved reclamation
plans and financial assurances that are not consistent with SMARA;
(2) failed to inspect mines as required by SMARA; (3) failed to seek
forfeiture of financial assurances to carry out reclamation; (4) failed to
take appropriate enforcement actions; (5) intentionally misrepresented the
results of inspections; or (6) failed to submit the required information
to the Department. (§ 2774, subd.
(a).) The Board may take over as lead
agency where the lead agency fails to submit a copy of the mining permit for
every surface mining operation within its jurisdiction by July 1, 1991, or
fails to submit amendments to the permit or reclamation plans for such mines by
July 1 of each subsequent year. (§
2774, subd. (e).)” (People ex rel. Dept. of Conservation v. El Dorado County, supra, 36
Cal.4th 109, __ [32 Cal.Rptr.3d 109 at pp. 113-116].) Additionally,
statutory provisions of interest to us in this appeal are the following: The Mining
Board is a state board within the Department of Conservation, which is an
executive agency in the State Resources Agency.
(§§ 601, 660; Gov. Code, § 12805.)
Mining Board members are appointed by the Governor, subject to Senate
confirmation. (§ 660.) The Mining Board represents the state’s
interest in mining matters. (§ 672.[8])
SMARA
identifies the state’s interest in surface mining, while acknowledging local
interests. Thus, section 2711
provides: “(a) The Legislature hereby
finds and declares that the extraction of minerals is essential to the
continued economic well-being of the state and to the needs of the society, and
that the reclamation of mined lands is necessary to prevent or minimize adverse
effects on the environment and to protect the public health and safety. “(b) The
Legislature further finds that the reclamation of mined lands as provided in
this chapter will permit the continued mining of minerals and will provide for
the protection and subsequent beneficial use of the mined and reclaimed land. “(c) The
Legislature further finds that surface mining takes place in diverse areas
where the geologic, topographic, climatic, biological, and social conditions
are significantly different and that reclamation operations and the
specifications therefor may vary accordingly.”
(See also, §§ 2726, 2727 [areas may have regional or statewide
significance].) Section
2712 provides: “It is the intent of the
Legislature to create and maintain an effective and comprehensive surface
mining and reclamation policy with regulation of surface mining operations so
as to assure that: “(a)
Adverse environmental effects are prevented or minimized and that mined lands
are reclaimed to a usable condition which is readily adaptable for alternative
land uses. “(b) The
production and conservation of minerals are encouraged, while giving
consideration to values relating to recreation, watershed, wildlife, range and
forage, and aesthetic enjoyment. “(c)
Residual hazards to the public health and safety are eliminated.” The Mining
Board establishes state policy for the conduct of mining operations and the
reclamation of mined lands. (§ 2755
[“The board[[9]] shall adopt regulations that establish state policy for the
reclamation of mined lands”].) SMARA
allows local agencies, such as counties, to become “[l]ead agencies” for the enforcement
of the state’s policy, but the Mining Board itself may also be a lead
agency. (§ 2728 [“Lead agency” means
“the city, county . . . or the board which has the principal responsibility for
approving a surface mining operation or reclamation plan pursuant to this
chapter”].) The state
policy established by the Mining Board is put into effect by the local lead
agencies. (§ 2756.[10])
The state policy does not include matters that are solely of local
concern, such as noise, dust, etc. (§
2757.[11])
As
indicated, to become a SMARA lead agency, the local agency must enact mining
ordinances in accordance with SMARA that meet the Mining Board’s approval. (§§ 2774, subd. (a),[12] 2774.3 [Mining Board shall review
lead agency ordinances to assure they are in accordance with state
policy].) “The lead
agency shall conduct an inspection of a surface mining operation within six
months of receipt by the lead agency of the surface mining operation’s report
submitted pursuant to Section 2207, solely to determine whether the surface
mining operation is in compliance with this chapter. . . . All inspections
shall be conducted using a form developed by the department[[13]] and approved by the board.
The operator shall be solely responsible for the reasonable cost of the
inspection. The lead agency shall notify
the director[[14]] within 30 days of the date of completion of the inspection
that the inspection has been conducted.”
(§ 2774, subd. (b).) Before
accepting a surface mining operation’s reclamation plan and financial
assurances, the lead agency must submit them to the director for review. (§ 2774, subd. (c).) If the lead agency declines to act on
comments from the director, the lead agency shall state its reasons in
writing. (§ 2774, subd. (d).) If a
surface mining operation is not in compliance with SMARA, the lead agency or
the director may give notice of the violation to the operator, order
compliance, and impose penalties for failure to comply. (§ 2774.1)
The lead agency or the Attorney General, on behalf of the director, may
seek a court order enjoining operation of the mine if it presents imminent
danger to the public health or the environment.
(§ 2774.1, subd. (d).) Upon
a complaint by the director, the department, or the board, the Attorney General
may bring a court action to recover administrative penalties. (§ 2774.1, subd. (e).) The lead
agency has primary responsibility for enforcing SMARA under section 2774.1,
subdivision (f), which provides: “The
lead agency has primary responsibility for enforcing this chapter and Section
2207 [mining reports etc.]. In cases
where the board is not the lead agency pursuant to Section 2774.4, enforcement
actions may be initiated by the director pursuant to this section only after
the violation has come to the attention of the director and either of the
following occurs: [¶] (1) the lead
agency has been notified by the director in writing of the violation for at
least 15 days, and has not taken appropriate enforcement action. [¶] (2) The director determines that there is
a violation which amounts to an imminent and substantial endangerment to the
public health or safety, or to the environment.
[¶] The director shall comply with this section in initiating
enforcement actions.” If the
Mining Board is not the lead agency for a jurisdiction, it may relieve the lead
agency of its SMARA authority (but not its non-SMARA local powers) if the
Mining Board finds the lead agency failed properly to enforce SMARA. Thus, section 2774.4 provides: “(a) If the board finds that a lead agency
either has (1) approved reclamation plans or financial assurances which are not
consistent with this chapter, (2) failed to inspect or cause the inspection of
surface mining operations as required by this chapter, (3) failed to seek forfeiture
of financial assurances and to carry out reclamation of surface mining
operations as required by this chapter, (4) failed to take appropriate
enforcement actions as required by this chapter, (5) intentionally
misrepresented the results of inspections required under this chapter, or (6)
failed to submit information to the department as required by this chapter, the
board shall exercise any of the powers of that lead agency under this chapter,
except for permitting authority.” (See
also, § 2715, subds. (a) & (f).[15])
C. Cross-defendants
are Immune from this Suit As
indicated, cross-complainants do not dispute the Mining Board’s status as a
state agency. Instead, they argue such
status is irrelevant because cross-defendants, by assuming the county’s SMARA
authority, were functioning as county actors.
We shall conclude cross-complainants fail to show grounds for reversal. Cross-complainants
cite an unpublished opinion of this court, involving the same parties to this
litigation, because the unpublished opinion (which held the trial court acted
within its discretion in denying the Mining Board’s motion for a preliminary
injunction to enjoin mining operations until financial assurances were
provided) stated as background that the Mining Board assumed the inspection
role under SMARA. We need not address
cross-complainants’ undeveloped argument that this unpublished opinion is
relevant under the doctrines of res judicata and collateral estoppel. We assume for purposes of this appeal that
the Mining Board assumed the inspection role, because the People’s complaint
sued to recover the inspection costs incurred by the Mining Board. Additionally, we accept for purposes of this
appeal the admission by the Mining Board in its appellate brief, that it first
took over the County’s SMARA inspection powers and then subsequently assumed
all of the County’s SMARA regulatory powers.
We agree
with cross-defendants that SMARA (as described ante) provides for the state, through the Mining Board, to take
back the regulatory powers previously delegated to a local lead agency when the
local government is not properly administering the state policy, and in doing
so, the Mining Board not only retains its status as a state agency, but
functions as one as well. Cross-defendants
at all times were enforcing state policy, not local policy. Having
based their opening brief on the assumption that cross-defendants would rely on
mere status rather than function, cross-complainants reply this is a new
position unsupported by authority or citation to the record. We disagree.
The SMARA statutes we described ante
reflect cross-defendants at all times were enforcing state policy, not local
policy. Local governments such as
counties are subject to suit under section 1983, where the allegedly
unconstitutional action implements or executes a policy statement, ordinance,
regulation or decision officially adopted and promulgated by that body’s
officers, or governmental custom. (Pitts, supra, 17 Cal.4th at pp. 348-349,
citing Monell v. New York City Dept. of
Social Services, supra, 436 Here, it
does not appear that any local government policy or local custom is at issue. Cross-complainants
argue it does not matter that the Mining Board is a state agency, because the
critical question for Eleventh Amendment immunity is whether the entity was an
“arm of the State.” Cross-complainants cite
case law addressing whether local entities were “like an arm of the State” so
as to qualify for Eleventh Amendment immunity.
(E.g., Lynch v. San Francisco
Housing Authority (1997) 55 Cal.App.4th 527, 534 (Lynch).) Lynch said even if an entity is a state
agency, there remains the question whether the particular state agency had the
same kind of independent status as a county or was instead an arm of the state
and therefore immunized by the Eleventh Amendment. (Id.
at pp. 535-536, citing Regents of the
Univ. of Cal. v. Doe (1997) 519 U.S. 425, 429-430 [137 L.Ed.2d 55] [fact
that university would be indemnified by federal government for litigation costs
did not divest university of its Eleventh Amendment immunity].) However, in
this case the Mining Board was both a state agency and an arm of the state. Cross-complainants
devote most of their opening brief to the distinct question of individual
immunities, i.e., that individual defendants have prosecutorial immunity when
acting in a prosecutorial or judicial function, but not when they perform an
investigative function. In such cases,
function rather than status is the key.
However, although individual immunity was one of the issues raised in
the demurrer, it is a different issue than the state exemption issue that was
separately raised in the demurrer and that we find dispositive. Personal immunities are unavailable as
defenses in official-capacity actions, where the only immunities are “‘forms of
sovereign immunity that the entity, qua
entity, may possess, such as the Eleventh Amendment.’” (Pitts,
supra, 17 Cal.4th at p. 350.)
Cross-complainants cite no authority divesting a state of its state
sovereign immunity because it acts in ways that can be characterized as
investigative. We conclude
immunity bars the section 1983 suit against the Mining Board and the individual
cross-defendants insofar as they were being sued in their official capacities. The
cross-complaint alleged liability against Testa and Parrish in their individual
as well as their official capacities.
(Cross-defendants state Parrish was the Mining Board’s Executive
Officer, and Testa was a contract employee.
The trial court stated in part:
“Although [Testa and Parrish] are alleged to have acted under color of
state law in their individual capacities, the only acts alleged are the
imposition of the inspection costs and other actions which by their very nature
are actions of the state only, not the individuals.” Cross-complainants fail to address this point
and fail to present any argument to preserve the cross-complaint against Testa
and Parrish in their individual capacities.
It is the appellant’s affirmative burden to demonstrate error. (Denham
v. Superior Court (1970) 2 Cal.3d. 557, 564.) We therefore conclude cross-complainants have
forfeited any claims against cross-defendants in their individual capacities. We conclude
cross-defendants are immune from this section 1983 cross-complaint, and the
demurrer was properly sustained.
Cross-complainants proffer no amendment that would save the pleading. We need not address the issue of invidious
discrimination or the cross-complainants’ challenge to the trial court’s grant
of the motion to strike punitive damages.
DISPOSITION The
judgment dismissing the cross-complaint is affirmed. Cross-defendants shall recover their costs on
appeal. (Cal. Rules of Court, rule
27(a).)[16] CONCURRING NICHOLSON, J BUTZ, J FOOTNOTES [1] Undesignated statutory references are to the Public
Resources Code, except section 1983 of title 42 of the United States Code (section
1983). [2] Section 1983 provides in part: “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress . . . .” [3] Reclamation means, “the combined process of land
treatment that minimizes water degradation, air pollution, damage to aquatic or
wildlife habitat, flooding, erosion, and other adverse effects from surface
mining operations, including adverse surface effects incidental to underground
mines, so that mined lands are reclaimed to a usable condition which is readily
adaptable for alternate land uses and create no danger to public health or
safety.” (§ 2733.) [4] Oddly, although the demurrer sought dismissal for
all cross-defendants, the demurrer stated it was filed by the Attorney General
as attorney only for the Mining
Board, Parrish, and Testa (and the People).
Thus, the Attorney General was not representing the individual members
of the Mining Board. The opposition to
the demurrer noted this problem. The
reply stated all cross-defendants were moving for demurrer, but the reply did
not address the limited representation of the Attorney General. We need not address this matter, because the trial
court entered judgment dismissing the cross-complaint as to all
cross-defendants, and cross-complainants do not make an issue of this matter on
appeal. [5] The Eleventh Amendment to the United States
Constitution states: “The judicial power
of the [6] We address separately post, the allegations that two of the cross-defendants acted in
personal as well as official capacities. Though
not acknowledged by Pitts, supra, 17
Cal.4th at p. 350, the cited United States Supreme Court case (Will v. Michigan, supra, 491 U.S. 58)
was somewhat affected by Hafer v. Melo
(1991) 502 U.S. 21 [116 L.Ed.2d 301], which “eliminate[d] [an] ambiguity” in Will and held the phrase “‘acting in
their official capacities’ is best understood as a reference to the capacity in
which the state officer is sued, not the capacity in which the officer inflicts
the alleged injury.” (Hafer v. Melo, supra, 502 U.S. at pp.
26-27.) The distinction between
official-capacity and personal-capacity suits is more than a mere pleading
device. (Id. at p. 27.) State
officers sued for damages in their official capacity are not “persons” for
purposes of the suit because they assume the identity of the government that
employs them. (Ibid.) By contrast, officers
sued in their personal capacity come to court as individuals. (Ibid.) A government official in the role of
personal-capacity defendant is a “person” under section 1983. (Ibid.) None of the parties on appeal cites Hafer. [7] CEQA stands for the California Environmental Quality
Act, section 21000 et seq. [8] Section 672 provides: “The board shall represent the state’s
interest in the development, utilization, and conservation of the mineral
resources of the state and the reclamation of mined lands, as provided by law,
and federal matters pertaining to mining, and shall determine, establish, and
maintain an adequate surface mining and reclamation policy.” [9] “[B]oard” means the Mining Board. (§§ 2008, 2001.) [10] Section 2756 says, “State policy shall apply to the
conduct of surface mining operations and shall include, but shall not be limited
to, measures to be employed by lead agencies in specifying grading,
backfilling, resoiling, revegetation, soil compaction, and other reclamation
requirements, and for soil erosion control, water quality and watershed
control, waste disposal, and flood control.” [11] Section 2757 provides: “The state policy adopted by the board shall
be based upon a study of the factors that significantly affect the present and
future condition of mined lands, and shall be used as standards by lead
agencies in preparing specific and general plans, including the conservation
and land use elements of the general plan and zoning ordinances. The state policy shall not include aspects of
regulating surface mining operations which are solely of local concern, and not
of statewide or regional concern, as determined by the board, such as, but not
limited to, hours of operation, noise, dust, fencing, and purely aesthetic
considerations.” [12] Section 2774, subdivision (a), states: “Every lead agency shall adopt ordinances in
accordance with state policy which establish procedures for the review and
approval of reclamation plans and financial assurances and the issuance of a
permit to conduct surface mining operations . . . .” [13] “Department” means Department of Conservation. (§§ 2002, 2001.) [14] “Director” means the Director of Conservation. (§§ 2002.5, 2001.) [15] Section 2715 provides: “No provision of this chapter or any ruling,
requirement, or policy of the board is a limitation on any of the
following: [¶] (a) On the police power of
any city or county or on the power of any city or county to declare, prohibit,
and abate nuisances. [¶] . . . [¶] (f)
On the power of any city or county to regulate the use of buildings,
structures, and land as between industry, business, residences, open space . .
. and other purposes.” 
This file last modified on: Monday, November 7, 2005.Document URL: http://ceres.ca.gov/ceqa/cases/2005/Brunius_v._Parrish_(edit).htm Copyright © 1998-2003 California Resources Agency. All rights reserved. |