|
|
 |
36
Cal.4th 971, 116 P.3d 567, 32 Cal.Rptr.3d 109, 35 Envtl. L. Rep. 20,161, 05
Cal. Daily Op. Serv. 6967, 2005 Daily Journal D.A.R. 9534 THE PEOPLE ex rel. DEPARTMENT OF
CONSERVATION et al., Plaintiffs and Appellants, v. SUPREME COURT OF S116870 COUNSEL Attorneys
for Appellant: Bill
Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard
M. Frank and Tom Greene, Chief Assistant Attorneys General, Mary E.
Hackenbracht, Assistant Attorney General, and Richard M. Thalhammer, Deputy
Attorney General, for Plaintiffs and Appellants. Law Offices
of Robert Cooper and Robert Cooper for __________________________________________________________________________________ Attorneys
for Respondent: Louis
B. Green, County Counsel, Edward L. Knapp, Chief Assistant County Counsel; The
Diepenbrock Law Firm, Mark D. Harrison, Gene K. Cheever, Michael V. Brady,
Jeffrey K. Dorso, Andrea A. Matarazzo and Michael E. Vinding for Defendants and
Respondents. Bingham
McCutchen, Peter N. Morrisette; Ebbin Moser + Skaggs and David E. Moser for
Interveners and Respondents. Becker
& Runkle and David C. Becker for Real Party in Interest and Respondent. Robin L.
Rivett and Emma T. Suárez Pawlicki for Pacific Legal Foundation as Amicus Curiae
on behalf of Defendants and Respondents, Interveners and Respondents and Real
Party in Interest and Respondent. Jennifer B.
Henning; McDonough, Holland & Allen and John R. Briggs for California State
Association of Counties and Regional Council for Rural Counties as Amici Curiae
on behalf of Defendants and Respondents, Interveners and Respondents and Real
Party in Interest and Respondent. Hatch &
Parent and Lisabeth D. Rothman for *Retired
Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution. OPINION WERDEGAR, J. Does the Director of the Department
of Conservation (Director) have standing to file a petition for a writ of
mandate challenging reclamation plans and financial assurances for surface
mining operations approved by defendant El Dorado County (County) under the
Surface Mining and Reclamation Act of 1975 (SMARA) (Pub. Resources Code,
§ 2710 et seq.)? We conclude he
has. Background[1] SMARA,
enacted in 1975 (Stats. 1975, ch. 1131, § 11, p. 2793), requires that
Respondent
and real party in interest Loring Brunius operates two surface mines, Weber
Creek Quarry and Diamond Quarry, in respondent County. County, as designated lead agency, was
primarily responsible for ensuring compliance with SMARA in its
jurisdiction. (§ 2774.1, subd.
(f).) The Director is vested with
control of the Department of Conservation (Department) (see § 601) and
also is assigned various responsibilities under SMARA (see, e.g., §§ 2774,
2774.1, 2796, 2796.5), as will be explained. Both
the Director and the State Mining and Geology Board (Board) (see § 660 et
seq.) in the mid-1990’s sought to enforce SMARA against Brunius, who at the
time was operating both of his quarries without approved reclamation plans or
financial assurances. In June 1995, the
Director obtained a stipulated judgment requiring Brunius to pay $70,000 in
administrative penalties subject to reduction if Brunius complied with SMARA by
certain dates. When Brunius failed
timely to comply, the Director ordered him to cease all mining activity at
Weber Creek Quarry and Diamond Quarry.
Brunius, however, having subsequently submitted reclamation plans and
financial assurances, obtained a preliminary injunction against operation of
the Director’s order, in light of Brunius’s pending applications for County’s
approval of his plans and assurances.
The Board, for its part, finding that County had, in violation of SMARA,
allowed Weber Creek Quarry to operate since 1982 without an approved
reclamation plan and since 1994 without approved financial assurances,
commenced SMARA’s prescribed procedures for assuming lead agency powers in the
County. (§ 2774.4.) As
part of the review process of Brunius’s reclamation plans and financial
assurances, the Director submitted extensive comments as to their
inadequacy. In July 1997, County’s
Planning Commission nevertheless approved the plans and assurances, as well as
a mitigated negative declaration under the California Environmental Quality Act
(CEQA) (§ 21000 et seq.; see also Cal. Code Regs., tit. 14, § 15000
et seq., especially id.,
§ 15070), for both Weber Creek Quarry and Diamond Quarry. The Director appealed these approvals to
County’s Board of Supervisors, which adopted the mitigated negative
declarations and approved the plans and assurances. Our
question arises out of the Director’s filing, in September 1997, two petitions
for writs of administrative mandate (Code Civ. Proc., § 1094.5) against
County and Brunius, seeking to vacate County’s approvals as in violation of
both SMARA and CEQA.
The Director alleged that Brunius’s reclamation plans did not meet
SMARA’s specifications and that his financial assurances were inadequate. The Director also alleged that County had
violated CEQA in approving the mitigated negative declarations for Brunius’s
operations. The
Director’s two petitions subsequently were consolidated. In March 1998, the Director filed
amended petitions, adding allegations that County had (1) erroneously
concluded Brunius possessed a vested right to operate Weber Creek Quarry
without a permit, and (2) allowed Brunius unlawfully to expand operations
at Diamond Quarry. The
California Mining Association, the Construction Materials Association of
California, and the Southern California Rock Products Association
(Interveners), all trade associations, were granted leave to intervene. County, Brunius, and Interveners each
demurred on the ground the Director lacked standing. The trial court overruled the demurrers, and
the Court of Appeal denied Interveners’ and County’s petitions for writs of
mandate or other relief from the trial court’s ruling. In
answering the Director’s petitions, County and Brunius alleged the Director’s
lack of standing as an affirmative defense; the Interveners’ complaint also
alleged the Director’s lack of standing.
The trial court granted County summary adjudication on the Director’s
claim in the Weber Creek Quarry writ that County erred in finding the Weber
Creek Quarry was a “vested use,” exempt from various SMARA and permitting requirements. The trial court then granted County and
Brunius’s motion to dismiss the CEQA claims for the Director’s failure timely
to request a hearing (§ 21167.4).
Finally, the trial court dismissed the Director’s remaining SMARA claims
on the ground the Director lacked standing to maintain them. The trial court awarded attorney fees to
County, Brunius, and the Interveners under Code of Civil Procedure section
1021.5. A
divided Court of Appeal affirmed on standing grounds the dismissal of the
Director’s SMARA and CEQA claims, but reversed the trial court’s attorney fees
award. The Department, Brunius,
and County each filed a petition for review.
We granted all three petitions.[2] Discussion We are concerned here not with the
merits of the underlying dispute, but only with the procedural question whether
the Director has standing to petition for a writ of mandate. Answering this question requires us to
examine the Director’s role, generally, as the executive officer of a state
department and, more specifically, within SMARA. A. Statutory
Background The majority in the
Court of Appeal below accurately detailed the
relevant statutory background: “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, 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 “SMARA
contains three specific provisions for petitioning for a writ of mandate. Any person may petition for a writ of mandate
to compel the Board, the state geologist, [fn. omitted] or the Director to
carry out any duty imposed on them by SMARA.
(§ 2716.) An operator may
petition for a writ of mandate to review any administrative penalties
imposed. (§ 2774.2, subd.
(e).) A lead agency, an operator, or an
interested party may obtain writ review of the Board’s action in taking over as
lead agency. (§ 2774.4, subd.
(f).)” The parties highlight three
considerations bearing on the question whether the Director has standing: (1) that a writ of mandate “must be
issued upon the verified petition of the party beneficially interested” (Code
Civ. Proc., § 1086);[3] (2) that the Director is vested with
significant, but limited, powers and responsibilities under SMARA; and (3) that
“[t]he head of each [state]
department may make investigations and prosecute actions concerning
. . . matters relating to the business activities and subjects under
the jurisdiction of the department” (Gov. Code, § 11180, subd. (a)). We briefly explain each. Beneficial interest
requirement As noted, standing to seek a writ of
mandate ordinarily requires that a party be “beneficially interested” (Code
Civ. Proc., § 1086), i.e., have “some special interest to be served or
some particular right to be preserved or protected over and above the interest
held in common with the public at large.”
(Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793,
796.) This standard, we have stated, “is equivalent to the federal
‘injury in fact’ test, which requires a party to prove by a preponderance of
the evidence that it has suffered ‘an invasion of a legally protected interest
that is [both] “(a) concrete and particularized, and (b) actual or
imminent . . . .” ’ ”
(Associated Builders
and Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352,
362.) Director’s role under SMARA The majority in the Court of Appeal
below based its decision primarily on “deference to the legislative scheme” and
what it discerned therein to be “the Legislature’s delicate balancing between
home rule, which permits local elected officials to make land use decisions,
and effective and consistent statewide enforcement of SMARA.”
The majority saw as especially significant “the limited advisory role of
the Director” as compared to the Board’s ability to take over the powers of a
lead agency. It reasoned that “the
Director’s limited role under SMARA, especially when compared to the Board’s
role in overseeing lead agencies, establishes that SMARA does not give the
Director standing to petition for judicial review of a lead agency’s actions in
approving reclamation plans and financial assurances that do not comply with
SMARA.” We examine the Director’s role
under SMARA in detail below. Government Code
section 11180 In
concluding the Director had standing to pursue this mandate action, the
dissenting justice below relied primarily on Government Code section 11180. The statute provides that the head of each state
department “may make
investigations and prosecute actions concerning: [¶] (a) All matters relating to the
business activities and subjects under the jurisdiction of the department.”[4]
In the dissenting justice’s view, the statute confers standing on a
department head if the department head is bringing an action “relating to” the
business of the department. While
we have construed Government Code section 11180’s grant of investigatory powers
liberally (see B. Standing As
we shall explain, neither standing analysis proffered in the Court of Appeal
below is entirely correct. The majority
misread SMARA as impliedly depriving the Director of standing to seek judicial
review of inadequate reclamation plans and financial assurances and too
narrowly construed the concept of “beneficial interest” with respect to the
Director’s responsibilities. The
dissenting justice, in turn, while reaching the right result, mistakenly
identified Government Code section 11180 as an independent source of the
Director’s standing. As
the majority below discerned, Government Code section 11180 only authorizes the
Director to sue; it does not of itself confer standing. “ ‘There is a difference between the capacity to sue, which is the right to
come into court, and the standing to
sue, which is the right to relief in court.’ ” (Color-Vue, Inc. v. Abrams (1996) 44
Cal.App.4th 1599, 1604.) The statutory
authorization granted department heads to sue, no matter how broadly construed,
cannot alone confer on the Director standing to pursue a writ of mandate here,
because such authorization does not necessarily create in him a “beneficial
interest” (Code Civ. Proc., § 1086) in the writ’s issuance. Notwithstanding Government Code section
11180, nothing logically precludes the Legislature from crafting a departmental
director’s powers and duties such that he or she lacks a beneficial interest
sufficient to confer standing to sue respecting some particular “business
activities and subjects under the jurisdiction of the department” (Gov. Code,
§ 11180, subd. (a)). No
party or amicus curiae identifies an instance of the Legislature’s having so
limited a department head’s authority, however, nor are we aware of any. We conclude that, in any event, the
Legislature has not crafted SMARA to deprive the Director of standing to seek
mandate as a remedy when a local lead agency approves allegedly inadequate reclamation
plans or financial assurances. Rather,
correctly understood, the Director’s standing to prosecute this petition for a
writ of mandate derives from his “beneficial interest” (Code Civ. Proc.,
§ 1086)—under SMARA and, generally, as a state officer charged with
serving the public interest—in the adequacy of approved reclamation plans and
financial assurances. First,
the Director’s powers and responsibilities under SMARA raise in him a
beneficial interest in lead agencies’ approving adequate plans and
assurances. As noted, the Director is entitled
to review and comment on every reclamation
plan submitted to a lead agency for approval.
(Pub. Resources Code, § 2774, subds. (c), (d); see also Cal. Code
Regs., tit. 14, § 3805.) It
is on this basis, presumably, that the majority below characterized the
Director’s responsibilities as “primarily advisory.” But the Director’s review and comment power
is not merely advisory; rather, its exercise triggers significant
statutory obligations on the part of the lead agency. Initially, the lead agency must
submit to the Director for review the mining operator’s reclamation plan or
plan amendments and financial assurances, together with any related documents prepared, adopted, or certified
pursuant to CEQA. (§ 2774,
subd. (c).) In so doing, the lead agency
is required to certify to the Director that the reclamation plan is “in
compliance with the applicable requirements . . . of the California
Code of Regulations” implementing SMARA.[5] (§ 2774, subd. (c).) The lead agency also is required to evaluate, “within a reasonable
amount of time” (id., subd. (d)(1)),
the Director’s written comments relating to the submitted plan or assurances
and must prepare a written response describing its disposition of the major
issues raised (id., subd. (d)(2)). In
this response, the lead agency must “address, in detail, why specific comments
and suggestions were not accepted” (ibid.). While the Director’s responsibilities in this
part of the SMARA process are advisory in form (in that the lead agency is not
required to accept his suggestions), the general interest his review serves,
patently, is SMARA compliance. We
note that, even were the Director’s responsibilities limited to an advisory
role, that would not necessarily deprive him of a beneficial interest in the approval
by local agencies of adequate reclamation plans and financial assurances. As one California court has recognized in the
related context of agricultural land conservation, the Legislature’s having
invested the Department with power to “advise any interested person or entity”
about a conservation statute’s purposes and implementation “points to the conclusion that the
State has standing” to enforce the
statute’s substantive provisions, even if a local agency has the primary
responsibility for implementing the statute.
(Triplett, supra, 48 Cal.App.4th at pp.
253-254; see Gov. Code,
§ 51206.)[6] In
any event, the Director’s powers and responsibilities under SMARA are not
limited to advice and comment. Once a
reclamation plan has been approved, the Director has express authority to
ensure that state law and the reclamation plan are implemented. (See generally § 2774.1.) The Director has power to inspect any mining
operation and, if he determines it is not in compliance with SMARA, he is
empowered to order the operator to comply (id.,
subd. (a)). If after a hearing
before the Board the operator fails to comply, the Director may impose
administrative penalties of up to $5,000 per day (id., subds. (b), (c)). And
if the Director determines the violation “presents an imminent and substantial
endangerment to the public health or the environment,” he may request the
Attorney General on his behalf to seek a court order enjoining the
operation. ( Plainly,
these broad enforcement powers and responsibilities, directed as they are
towards overall SMARA compliance and the fulfillment of state reclamation
policy generally, confer on the Director a “special interest to be served or
some particular right to be preserved or protected over and above the interest
held in common with the public at large” (Carsten v. Psychology Examining
Com., supra, 27 Cal.3d at p. 796). For instance, if a mine operator
manages, through whatever device, to obtain local lead agency approval of
reclamation plans that do not comply with SMARA or its attendant regulations,
or that lack safeguards sufficient to facilitate effective administrative
oversight and implementation, the Director may be hampered or frustrated in
subsequent efforts to enjoin or penalize mining that, on inspection, he
determines compromises or threatens to compromise SMARA’s public health and
environmental goals. Under such
circumstances, of course, simply enforcing the mine operator’s statutory
obligation to perform reclamation in
accordance with his approved reclamation plan (§ 2773.1,
subd. (b)) would by hypothesis be inadequate.
Accordingly, the Director has an interest in adequate review of the
original approval. Similarly,
the Director may be hampered or frustrated in the execution of his statutory
powers and responsibilities if he is not permitted to seek judicial review when
a lead agency approves allegedly inadequate financial assurances. A fundamental purpose of SMARA is that
surface mine operators, rather than the taxpaying public, bear the expense of
reclaiming lands disturbed by surface mining.
To that end, lead agencies must require that a mine operator’s financial
assurances be sufficient to perform reclamation. (§ 2770, subd. (d).) The mine operator is responsible for posting
adequate assurances (§ 2773.1, subd. (a)) and for payment of any costs of
reclamation in accordance with the approved plan that are in excess of the
assurances (id., subd. (b)(4)). The
Director’s statutory powers and responsibilities relating to financial
assurances submitted under SMARA reveal his substantial interest in their
adequacy. Pursuant to SMARA, such assurances are to be made payable to the Department, as
well as to the lead agency.
(§ 2773.1, subd. (a)(4).)
Under specified circumstances, the Director may seek forfeiture of
financial assurances and undertake reclamation of mines. ( Obviously,
if in a case implicating the Director’s statutory power to seek forfeiture of
financial assurances and conduct reclamation, those assurances prove inadequate
to accomplish the task, the Director cannot effectively discharge his
responsibility. In such circumstances,
instead of the operator paying the full cost of reclamation, the taxpaying
public likely will bear part or all of the burden. Accordingly, whenever a local lead agency
approves allegedly inadequate financial assurances, the Director has an
interest in obtaining a writ of mandate to address the deficiencies. Thus,
the Director’s statutorily conferred powers and responsibilities—those
expressly granted him under SMARA, as well as those inhering in his capacity as
the executive officer of the state department charged with SMARA’s
implementation—create in him a substantial interest in reclamation plans and
financial assurances being both legally consistent with SMARA and practically
adequate to accomplish SMARA’s goals and state reclamation policy promulgated
thereunder.[9] Therefore, when a local lead agency approves
allegedly illegal or inadequate plans or assurances, the Director is
“beneficially interested” (Code Civ. Proc., § 1086) in the issuance of a
writ of mandate to address the deficiencies.
Second,
while it is true, as the majority below observed, that the lead agency has
primary responsibility for enforcing SMARA while the Director’s role is a
backup one (see fns. 8 and 9, ante),
that fact is not determinative. Primary
responsibility is not exclusive responsibility.
Generally, “where the Legislature wants only one agency to have jurisdiction over a
matter, it says so unequivocally” (Triplett, supra, 48
Cal.App.4th at p. 255 [discussing Pub. Util. Code, § 1759]). SMARA contains no such statement. On the contrary, the Legislature expressly
has provided that the remedies SMARA accords the Director “are in addition to, and do not supersede
or limit, any and all other remedies, civil or criminal” (Pub.
Resources Code, § 2774.1, subd. (g)).
The writ of administrative mandate, a civil remedy, is thus preserved
for the Director’s use when he is beneficially interested and “must be issued
in all [such] cases” where he lacks “a plain, speedy, adequate remedy, in the
ordinary course of law” (Code Civ. Proc., § 1086). SMARA contains several specific
mandate-related provisions, but none affords a remedy when an operator obtains
lead agency approval of allegedly inadequate reclamation plans or financial
assurances.[10] This omission, however, does not signify that lead agencies are immune from
judicial review, as “ ‘it has never been held that all laws
must be contained, or references thereto made, in one statute. It is sufficient that a remedy exists whether
it is expressed in the statute expressing the power or in another
statute.’ ” (Tieberg, supra,
243 Cal.App.2d at p. 282, citing inter alia Bodinson Mfg. Co. v.
California Emp. Com. (1941) 17 Cal.2d 321, 324, 325.) Here, the Director’s mandate remedy is
expressed in the Code of Civil Procedure and in the Government Code. (Code Civ. Proc., §§ 1086 [circumstances
under which writ must issue], 1094.5 [administrative mandate]; Gov. Code, § 11180
[capacity to sue]; see also Brown v. Superior Court (1971) 5 Cal.3d 509, 514 [official with
responsibility to implement disclosure laws has standing to seek a writ of
mandate to enforce them].) Our
acknowledging the Director’s
beneficial interest in obtaining a writ of mandate neither diminishes the
Board’s authority as conferred by SMARA nor upsets any implicit legislative
balance in the statute.[11] While the Director has no power to amend or repeal any order of the
Board (§ 671), here the Director seeks no such thing. In fact, as the Court of Appeal observed, the
record contains no evidence the Board disapproves of the instant lawsuits. Nor, contrary to the majority’s suggestion
below, does the Director seek authority to commence a mandate proceeding against
a lead agency in place of the Board’s authority to take over a lead
agency’s powers under section 2774.4.
Indeed, after the Director filed the instant petitions, the Board
assumed lead agency functions from County.
But the Board’s takeover authority includes no power retroactively to
alter a reclamation plan that has been approved by a local lead agency under a
certified ordinance; the Board may amend approved reclamation plans only when
they were approved by the Board in the first instance because the lead agency
in the jurisdiction did not have a certified ordinance or were approved by the
agency under an ordinance that was not in accordance with state policy
(§ 2774.5, subd. (c)). And even
reclamation plans the Board amends in the exercise of this power must be
remanded to the lead agency upon certification of the lead agency’s ordinance (id., subd. (d)). In determining whether the Director
has standing to enforce SMARA, we “ ‘must consider the consequences that
might flow from a particular construction and should construe the statute so as
to promote rather than defeat the statute’s purpose and policy.’ ” (Escobedo v. Estate of Snider (1997)
14 Cal.4th 1214, 1223.) One possible result of the foregoing
scheme, as County acknowledges, is that a SMARA violation, like
County’s approval of allegedly inadequate reclamation plans and financial
assurances in this case, could remain in place even after the Board exercises
its takeover authority.[12] Accordingly, unless we acknowledge the
Director’s interest in exercising his capacity to seek judicial review (Gov.
Code, § 11180), such lead agency approvals could become final despite
their noncompliance with SMARA standards.
We thus agree with the
Attorney General that the Legislature cannot have intended the Board’s limited
lead agency takeover authority to substitute, generally, for the Director’s
authority to seek judicial review of a local lead agency’s approval of
inadequate reclamation plans or financial assurances. The
statutes that permit a beneficially interested party to obtain a writ of mandate
(Code Civ. Proc., § 1086) and a state department head to bring an action
relating to the department’s business (Gov. Code, § 11180, subd. (a)) both
had been in effect many decades when the Legislature enacted SMARA.[13]
The Legislature is deemed to have been
aware of those laws and to have enacted SMARA in light of them. (See Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 609.) And the Legislature’s having authorized each
department head to prosecute actions concerning matters related to the business
activities and subjects under the department’s jurisdiction (Gov. Code,
§ 11180, subd. (a)), while not of itself creating the beneficial interest,
nevertheless constitutes “a recognition”
that such an executive ordinarily “has an interest which is proper to be
determined in [such] proceedings” (Tieberg, supra, 243 Cal.App.2d
at p. 283). Our conclusion that the
Director has standing to seek judicial review of allegedly unlawful local lead
agency decisionmaking thus reflects discernable legislative intent. Third,
recognizing the Director’s beneficial interest in a writ of mandate accords with our prior
pronouncements, and the pronouncements of other To deny the Director standing here would
free surface mine operators who manage to obtain local lead agency approval of
inadequate reclamation plans or financial assurances to do less than SMARA
requires. If the reclamation plan does
not require the operator to reclaim the site in accordance with SMARA,
accomplishment of SMARA’s goal of protecting public health and safety, as well
as the environment, is at risk. And if
the operator’s financial assurances are inadequate to accomplish the
reclamation plan, taxpayers are at risk of bearing the burden. Thus, the Director’s standing to pursue a
writ of mandate is essential to protect his—and the public’s—interest in
adequate reclamation, paid for by the operator. C. Related Vested Use and CEQA Issues The Director, as earlier noted, also
has contested County’s vested use determination (viz., that Brunius had a
vested nonconforming use and, therefore, did not require a permit; see
generally §§ 2776, 2792), as well as the adequacy, under both CEQA and
SMARA, of certain CEQA disclosure documentation that County submitted as part
of the SMARA process. The majority below
concluded the Director lacks standing to maintain these claims for essentially
the same reason it concluded he lacked standing to challenge County’s SMARA
approvals—that SMARA defines the Director’s role so as impliedly to deprive him
of standing to challenge a lead agency’s actions. On the grounds already reviewed at length,
we reject that reasoning and, therefore,
the Court of Appeal’s application of it to these claims as well. For the same reasons, generally, that the
Director is beneficially interested in obtaining writ review when a lead agency
approves reclamation plans or financial assurances that do not comply with
SMARA, he may be beneficially interested in obtaining a writ when a lead agency
allegedly violates SMARA by making an erroneous vested use determination or by
failing to include adequate CEQA disclosure documentation in the reclamation
plan approval process. SMARA exempts anyone with a “vested
right to conduct surface mining operations prior to Similarly, the
resolution of the CEQA issue, in its standing aspect, depends on our conclusion
respecting the Director’s interest under SMARA in obtaining a writ of mandate
to challenge an inadequate reclamation plan.
CEQA, of course, is aimed at ensuring full disclosure of environmental
impacts of projects it governs. (County
of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.) SMARA requires that the local lead agency, at
the time it submits a reclamation plan and financial assurances to the Director
for review, also submit all information regarding the project that has been
prepared pursuant to CEQA. (§ 2774,
subd. (c).) All concede the
Director’s core SMARA role includes responsibility to review and power to
comment on reclamation plans and financial assurances proposed for lead agency
approval (see generally § 2774).
When a local lead agency, in fulfilling its SMARA documentation responsibilities to the Director,
relies, as SMARA permits it to do (see § 2774, subd. (c)), on
documentation it has prepared pursuant to CEQA, but that documentation does not
comply with CEQA’s disclosure requirements, the Director may be deprived of the
information he requires in order to fulfill his SMARA review and comment responsibilities. Unless something else in the materials alerts
the Director and his staff to matters proper CEQA disclosure would have
revealed, the Director will be denied the opportunity to provide comprehensive
comments as he is empowered and obligated to do under section 2774, subdivision
(d)(1). In sum, the Director,
under SMARA, was entitled to adequate CEQA information. If, as the Director alleges here, County
failed in violation both of SMARA and CEQA to provide such, the Director has an
interest in the issuance of a writ of mandate to correct the deficiency and
effect the Legislature’s intention that adequate CEQA disclosure inform the
SMARA process. D. Attorney Fees Because we have concluded that the
trial court’s dismissal, on standing grounds, of the Director’s SMARA and CEQA
claims was erroneous, we have no occasion to address questions relating to the
attorney fees award that was based on the dismissal. Disposition For the foregoing reasons, the
judgment of the Court of Appeal is reversed and the cause is remanded for
further proceedings consistent with this opinion. CONCURRING GEORGE, C. J KENNARD, J. BAXTER, J. CHIN, J. FOOTNOTES [1] The
requests for judicial notice filed on [2] We initially limited briefing to the question whether the
Director has standing; subsequently, we requested that the parties also discuss
the standard of review a reviewing court should apply in determining whether an
action enforces an important right affecting the public interest so as to
justify an award of attorney fees. As
will appear, in light of our resolution of the standing issue, we have no
occasion to reach the attorney fees issue. [3] In
its entirety, Code of Civil
Procedure section 1086 provides: “The writ must be issued in all cases
where there is not a plain, speedy, and adequate remedy, in the ordinary course
of law. It must be issued upon the
verified petition of the party beneficially interested.” [4] In
its entirety, Government Code section 11180 provides: “The head of each department may make investigations and prosecute
actions concerning:
[¶] (a) All matters relating to the business activities and
subjects under the jurisdiction of the department. [¶] (b) Violations of any law or
rule or order of the department.
[¶] (c) Such other matters as may be provided by law.” [5] The
statute’s specific reference is to title 14, section 3500, of the California
Code of Regulations, which provides
in its entirety: “It is the purpose of
this subchapter to establish state policy for the reclamation of mined lands
and the conduct of surface mining operations in accord with the general
provisions set forth in [SMARA].” [6] Government
Code section 51206 provides in its entirety:
“The Department of
Conservation may meet with and assist local, regional, state, and federal
agencies, organizations, landowners, or any other person or entity in the
interpretation of this chapter [i.e., the Williamson Act, concerning
agricultural land conservation]. The
department may research, publish, and disseminate information regarding the
policies, purposes, procedures, administration, and implementation of this
chapter. This section shall be liberally
construed to permit the department to advise any interested person or entity
regarding this chapter.” [7] The local lead agency has primary
responsibility for enforcing SMARA. The
Director’s power to initiate the described enforcement actions exists when the Board is the lead agency or,
when it is not, if a SMARA violation comes to his attention and the local lead
agency defaults, or the Director discerns an imminent public health or
environmental threat. (§ 2774.1,
subd. (f).) [8] The Director’s role here is a
“backup” one: “The lead agency shall have primary
responsibility to seek forfeiture of financial assurances and to reclaim mine
sites” in such circumstances.
(§ 2773.1, subd. (d).) The
Director may act “if both of the following occurs: [¶] (1) The financial incapability
of the operator or the abandonment of the mining operation has come to the
attention of the [D]irector.
[¶] (2) The lead agency has been notified in writing by the
[D]irector of the financial incapability of the operator or the abandonment of
the mining operation for at least 15 days, and has not taken appropriate
measures to seek forfeiture of the financial assurances and reclaim the mine
site; and one of the following has occurred:
[¶] (A) The lead agency has been notified in writing by the
[D]irector that failure to take appropriate measures to seek forfeiture of the
financial assurances or to reclaim the mine site shall result in actions being
taken against the lead agency under Section 2774.4. [¶] (B) The [D]irector determines
that there is a violation that amounts to an imminent and substantial endangerment
to the public health, safety, or to the environment. [¶] (C) The lead agency notifies
the [D]irector in writing that its good faith attempts to seek forfeiture of
the financial assurances have not been successful.” (Ibid.) [9] Contrary
to the Court of Appeal majority’s implication, Code of Civil Procedure section
1086 does not require mandate plaintiffs to demonstrate a pecuniary interest in
the writ’s issuance. Whether or not
SMARA’s goals of actually reclaiming mined land so as to minimize adverse
environmental effects (Pub. Resources Code, § 2712, subd. (a)),
encouraging production and conservation of mineral resources (id., subd.
(b)), and protecting public health and safety (id., subd. (c)) generate
interests that properly may be characterized as pecuniary, they certainly offer
interests that are beneficial. [10] Any person may petition for a writ of
mandate to compel the Board or the Director to carry out a duty imposed on them
by SMARA. (§ 2716.) An operator may petition for a writ of mandate
to review the imposition of administrative penalties. (§ 2774.2, subd. (e).) A lead agency, an operator, or an interested
party may obtain writ review of the Board’s action in taking over lead agency
responsibilities. (§ 2774.4, subd.
(f).) [11] Carsten
v. Psychology Examining Com., supra, 27 Cal.3d 793, relied on by
defendants, is not authority to the contrary.
Carsten in its own terms addressed the “unique issue” presented
by a board member’s suing “the very board on which he or she serves as a member”
(id. at p. 795); obviously, the
relationship between the parties here is not analogous. The possibility exists, of course, that the
Board may seek a writ of administrative mandate pursuant to the same general
authorities under which the Director has proceeded. (Code Civ. Proc., §§ 1086, 1094.5.) We are not called upon in this case to
express an opinion as to the viability of any such petition by the Board. Nor are we considering a situation in which
the Director is challenging plans and assurances that were approved by the
Board, rather than a local lead agency.
We anticipate that the Director and the Board will coordinate their
efforts in situations where SMARA grants the Board authority to amend a reclamation
plan. [12] While
the parties’ briefing indicates disagreement about the remedial utility of the
Board’s amendment powers in this particular case, there is no dispute that, as
a general matter, a local lead agency’s approval of an inadequate reclamation
plan when a SMARA-compliant ordinance is in place escapes administrative
review. [13] SMARA, as previously noted, was
enacted in 1975. (Stats. 1975, ch. 1131, § 11,
p. 2793.) Code of Civil Procedure
section 1086 was enacted in 1872 and amended in 1907. (See Stats. 1907, ch. 244, § 1,
p. 307.) Government Code section
11180, derived from section 353 of the former Political Code, was enacted in
1921. (See Stats. 1921, ch. 602,
§ 1, p. 1023.) 
This file last modified on: Thursday, October 27, 2005.Document URL: http://ceres.ca.gov/ceqa/cases/2005/People_v._El_Dorado_County_(edit).htm Copyright © 1998-2003 California Resources Agency. All rights reserved. |