Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture

Decision Date19 December 1986
Citation232 Cal.Rptr. 729,187 Cal.App.3d 1575
CourtCalifornia Court of Appeals Court of Appeals
PartiesCITIZENS FORPEST CONTROL et al., Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE et al., Defendants and Appellants. A032176.

John K. Van De Kamp, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Charles W. Getz, IV, Deputy Atty. Gen., San Francisco, for defendants and appellants.

Victor M. Sher, Lobdell, Miller & Sher, San Francisco, Michael B. Endicott, Palo Alto, Ben T. Allen, Ferndale, for plaintiffs and respondents.

ANDERSON, Presiding Justice.

This is an appeal from a judgment ordering relief in mandamus and granting injunctive relief to a group of environmentalists and commercial organic produce growers who sought to prohibit the California Department of Food and Agriculture (CDFA) from proceeding with a 1985 project to control and eradicate the Apple Maggot Fruit Fly (AMFF) in California.

Plaintiffs, Citizens for Non-Toxic Pest Control, John C. Laboyteaux III, Patricia Suzanne Laboyteaux, David and Susan Hagemann, the Humboldt Herbicide Task Force, Phil McCulley, Ernest and Myrtle Carter, Tim Carter, and Dan Carter (respondents) claimed that defendants CDFA and its director, Clare Berryhill (appellants) violated the California Environmental Quality Act (CEQA) (PUB. RESOURCES CODE, § 210001 et seq.) by failing to prepare and consider an environmental impact report (EIR) (§ 21061) before commencing to locate and eliminate the AMFF through trapping, quarantine measures and the spraying of a pesticide known commercially as "Imidan." The court below (1) ordered that a peremptory writ of mandate issue commanding CDFA to suspend all activity with respect to its AMFF project "for 1985 and future years" until it completed an EIR unless CDFA commenced the EIR process in good faith within 10 days of the July 25, 1985, judgment, 2 and (2) enjoined CDFA "from spraying any toxic pesticide on any private property where objected to by the owner or occupant of said property," as long as the objectors agreed to engage in certain alternative eradication measures. CDFA's filing a timely notice of appeal automatically stayed the effect of the relief in mandamus (Code Civ.Proc., §§ 916, 1110b; see Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727, 181 Cal.Rptr. 214); however, on August 2, 1985, we denied appellants' request for an immediate stay of the preliminary injunction.

Appellants contend that the court below erred in finding that respondents filed their complaint within the 180-day limit set forth in section 21167. They also argue that CDFA's program to eradicate the AMFF in 1985 was not a "project" within the meaning of section 21065, so that it did not fall within CEQA regulations. (§ 21080, subd. (a).) Most importantly, they maintain that the trial court incorrectly held a "functional equivalency" provision, which could have excused CDFA from preparing an EIR (§ 21080.5), inapplicable to programs for eradicating insect pests. We agree in part with the latter argument; nonetheless, we affirm the judgment.

I. Action for Relief Timely Filed

Appellants complain that the trial court erred in finding that since CDFA commenced its AMFF eradication project between June 13 and July 22, 1985, respondents' filing of their petition on June 24, 1985, was timely. (§ 21167, subd. (a).) 3 The essence of its argument is that the project began at the latest on April 9, 1984--approximately 16 months before the petition was filed--when the Legislature mandated that CDFA begin a program for detecting and eradicating the AMFF. (Sen. Bill No. 2076 (1983-1984 Reg.Sess.); Stats.1984 ch. 77.) We agree with the trial court's determination that the actions undertaken by CDFA in 1984 were directed at investigating the feasibility of embarking on an eradication program, while those undertaken in 1985 were an implementation of the 1984 findings involving distinct considerations, funding and procedures.

Senate Bill No. 2076 directed CDFA to (1) detect the range of the AMFF in California; (2) reduce the likelihood of a southward spread of the pest by controlling the movement of apples; and (3) create a buffer zone around areas in which small infestations of the AMFF were detected through eradication. (Stats.1984, ch. 77, § 5.) CDFA was further instructed to prepare a report on its efforts, including "a determination on whether the apple maggot in this state is an eradicable or a controllable pest." (Stats.1984, ch. 77, § 6.) Importantly, though the bill appropriated about $645,000 for the carrying out of these duties during the 1983-1984 fiscal year and close to $1,060,000 for 1984-1985, spending of the latter sum was made expressly dependent upon a determination that eradication of the AMFF was, in fact, possible. (Stats.1984, ch. 77, §§ 7-8.) In its own report dated December 1984 CDFA recognized that the purpose of its project as authorized by Senate Bill No. 2076 was "to make a recommendation to the Legislature as to whether the Department should attempt eradication or recommend an on-going control program, if feasible." (Emphasis added.)

CDFA's activities with regard to the AMFF in 1984 differed substantially from those proposed for 1985 in three important areas: funding, range and compliance. Having been allocated over $1 million in 1984 to determine whether or not eradication of the AMFF was feasible, the department concluded that it was possible to do so if given a budget of $15.2 million spread over seven years, with $2.6 million allocated to 1985. CDFA was given precisely this amount in Senate Bill No. 354 (1985-1986 Reg.Sess.) which took effect on July 22, 1985. (Stats.1985, ch. 228.) Detection-trapping, quarantine and spraying activities were limited in 1984 to six northern California counties (Del Norte, Humboldt, Shasta, Siskiyou, Trinity and Mendocino), while the 1985 "apple maggot action plan" was to be expanded statewide. Most pertinent to respondents herein, in 1984 organic growers were subject to spraying only if an AMFF was discovered within one-quarter mile of their orchard and, even at that, they "still had the option of alternative treatments such as cold storage, processing, etc." In 1985 a finding within five miles triggered spraying and no alternative to treatment with "Imidan" was offered.

The trial court's factual determination that CDFA's 1985 eradication project was independent of its 1984 feasibility study is amply supported by the record and, therefore, will not be disturbed on appeal. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.) Moreover, CDFA admitted in its answer to the petition that it first publicly announced its intention to undertake the 1985 project on June 12, 1985. The trial court correctly concluded that respondents' filing their action 12 days later (on June 24, 1985) was timely for purposes of section 21167, subdivision (a). 4

II. AMFF Eradication a "Discretionary Project" Under CEQA

Section 21080 provides, in pertinent part, "this division shall apply to discretionary projects proposed to be carried out or approved by public agencies...." (Subd. (a).) Specifically exempted from CEQA are "[m]inisterial projects proposed to be carried out or approved by public agencies." (Subd. (b)(1).) Appellants argue that since the Legislature in 1984 (through Senate Bill No. 2076) mandated that CDFA "create a buffer zone in which small infestations of the [AMFF] are detected and eradicated" (Stats.1984, ch. 77, § 5) from that point on its duties with regard to the pest were purely ministerial. We disagree with this characterization.

Title 14, California Administrative Code, section 15357 defines a discretionary project as one "which requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations." (Emphasis added.) Title 14, section 15369, notes that " 'Ministerial' describes a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision." (Emphasis added.) Section 21080 extends the scope of CEQA to hybrid projects of a mixed ministerial-discretionary character and where there are doubts whether a project is ministerial or discretionary, they should be resolved in favor of the latter characterization. (Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959, 970, 131 Cal.Rptr. 172.)

While it is true that section 5 of Senate Bill No. 2076 mandated detection of the AMFF, reduction of its further spread and the creation of a "buffer zone," in section 6 the bill ordered CDFA to "prepare a report on the status of its efforts to carry out the requirements of Section 5...." (Stats.1984, ch. 77, §§ 5-6, emphasis added.) The report was to "include a determination on whether the apple maggot in this state is an eradicable or a controllable pest." (Ibid., emphasis added.) When submitted (in December 1984) the report proposed three separate options for proceeding, one of which was titled "no action--discontinue the AMFF project." Moreover, in a document published in July 1985 CDFA listed five separate alternatives it had considered (including the "Prokopy method" advanced by respondents) before electing the spraying of "Imidan," giving also its conclusions as to why the four measures it rejected had been deemed ineffective.

Having made the final determinations as to whether or not it was feasible to eradicate the AMFF and what method would be most effective in doing so, CDFA...

To continue reading

Request your trial
9 cases
  • Mountain Lion Foundation v. Fish & Game Com.
    • United States
    • California Supreme Court
    • July 31, 1997
    ...18 Cal.3d 190, 196, 132 Cal.Rptr. 377, 553 P.2d 537, hereafter Wildlife Alive; Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (1986) 187 Cal.App.3d 1575, 1584, 232 Cal.Rptr. 729, hereafter Citizens.) Because the plan or document is generally narrower in scope than a......
  • Shaw v. McMahon
    • United States
    • California Court of Appeals Court of Appeals
    • December 31, 1987
    ...Board of Trustees (1982) 31 Cal.3d 79, 85, fn. 1, 181 Cal.Rptr. 549, 642 P.2d 460; Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (1986) 187 Cal.App.3d 1575, 1584, 232 Cal.Rptr. 729) obliges us to consider section 11157 at each stage of its evolutionary development.......
  • Friends of Juana Briones House v. City of Palo Alto
    • United States
    • California Court of Appeals Court of Appeals
    • February 23, 2011
    ...Community Dev., supra, 45 Cal.App.3d at p. 193, 119 Cal.Rptr. 266; see also, e.g., Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (1986) 187 Cal.App.3d 1575, 1583, 232 Cal.Rptr. 729 [decision discretionary where agency determined whether pest could be eradicated "an......
  • Mountain Lion Foundation v. Fish and
    • United States
    • California Court of Appeals Court of Appeals
    • April 2, 1996
    ...regulatory program may be submitted in lieu of the EIR for the covered activity." (Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (1986) 187 Cal.App.3d 1575, 1584, 232 Cal.Rptr. 729.) As a general rule a party may not, on appeal, change the theory on which the case ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT