Joseph v. Masonite Corp.

• Decision Date: 17 October 1983
• Court: California Court of Appeals Court of Appeals
• Parties: David C. JOSEPH, as Executive, Director of the North Coast Regional Water Quality Control Board, Plaintiff and Appellant, v. MASONITE CORPORATION, Defendant and Respondent. AO16652.

Page 629

195 Cal.Rptr. 629

148 Cal.App.3d 6

David C. JOSEPH, as Executive, Director of the North Coast Regional Water Quality Control Board, Plaintiff and Appellant, v. MASONITE CORPORATION, Defendant and Respondent.

AO16652.

Court of Appeal, First District, Division 1, California.

Oct. 17, 1983.

George Deukmejian, Atty. Gen., R.H. Connett, Asst. Atty. Gen., William D. Cunningham, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

Jared G. Carter, Rawles, Hinkle, Carter & Brigham, Ukiah, for defendant and respondent.

ELKINGTON, Associate Justice.

The instant appeal of David C. Joseph, as Executive Director of the North Coast Regional Water Quality Control Board (Regional Board), is from the Mendocino County Superior Court's order vacating an administrative "inspection warrant" issued under the purported authority of Code of Civil Procedure sections 1822.50-1822.57, inclusive.

The issue concerns the nature of probable cause upon which such an inspection warrant may issue, in order that the Regional Board may ascertain whether the purposes of the Porter-Cologne Water Quality Control Act (Water Code, Div. 7, §§ 13000-13983, inclusive, hereafter sometimes the Act) are being complied with. (Hereafter statutory references, unless otherwise noted, will be to the Act, as codified by the Water Code.)

A public policy of this state is declared by the Act (§ 13000):

"The Legislature finds and declares that the people of the state have a primary interest in the conservation, control, and utilization of the water resources of the state, and that the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state...."

Among other things, Regional Water Quality Control Boards are created by the Act (§ 13200). They are charged with enforcing the water quality provisions of the Act, including the duty to prevent and abate pollution of natural watercourses within their regions (§ 13225).

Respondent Masonite Corporation was the owner of 1,065 acres of unimproved timberland (the timberland) in Mendocino County, upon which and nearby, were several streams and rivulets which flowed into the Navarro River. Proposing to commence logging operations on the timberland, it submitted a required timber harvesting plan to the state's Department of Forestry. A qualified representative of the Regional Board had accompanied, apparently consensually, the Department of Forestry's inspector upon his visit to the timberland for an environmental impact inquiry.

While on the timberland, the Regional Board's representative observed proposed logging practices, which in his opinion would likely cause pollution of the timberland's, and its nearby, watercourses. At about the same time, an adjacent landowner had expressed concern to the Regional Board over the water quality impact of Masonite Corporation's proposed logging operations; he was particularly disturbed over its probable adverse effect on the trout spawning gravels of "Pleasant Valley Creek." And in the meantime Masonite Corporation's logging operations were underway.

For these reasons, and perhaps others, the Regional Board requested permission of Masonite Corporation to enter upon the timberland and observe the logging operations. The purpose was to determine compliance with the water quality control provisions of the Act.

The request was refused.

The Act (§ 13267) provides:

"(a) A regional board, ... in connection with any action relating thereto or authorized by this division, may investigate the quality of any waters of the state within its region. [Emphasis added.] ...

"(c) In such an investigation, the regional board may inspect the facilities of any such person to ascertain whether the purposes of this division are being met and waste discharge requirements are being complied with. Such inspection shall be made with the consent of the owner or possessor of such facilities or, if such consent is refused, with a warrant duly issued pursuant to the procedure set forth in Title 13 (commencing with Section 1822.50) of Part 3 of Code of Civil Procedure; ..."

We observe initially, that the very essence of the search and seizure provisions of the Fourth Amendment is that the concerned state intrusion must be reasonable. (People v. Ingle (1960) 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 348 P.2d 577.) The Act's command to "investigate the quality of any waters of this state" in accordance with the related public policy would be but an idle and frivolous legislative gesture, were the owners of the land over which the state's waters flow constitutionally permitted to bar the investigators from their mandated duty. Many would agree that the governmental sanction of such a refusal would be unreasonable. If that be so, then the constitutional argument of Masonite Corporation must be rejected.

But we respond to Masonite Corporation's more specific arguments.

Code of Civil Procedure sections 1822.50-1822.57, inclusive, relate to judicially issued administrative inspection warrants. Such an inspection warrant may be issued only, as relevant, where consent to inspect has been refused, and "only upon cause." (§ 1822.51.) "Cause shall be deemed to exist if ... there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, premises, or vehicle." (§ 1822.52.)

The Regional Board sought from, and was granted by, the superior court such an inspection warrant. But thereafter, on Masonite Corporation's petition the warrant was vacated by order of the court. The appeal before us was taken from that order.

The order was based upon the superior court's conclusion that there was "no reason to think that any violations have occurred."

In the trial court, and now before this reviewing court, Masonite Corporation has contended: "that a greater showing of cause, equivalent to probable cause in the criminal sense, must be shown by the Regional Board before any inspection warrant could be upheld as constitutional in this case."

Thus the argument is made that such authority as is given the Regional Board by the Act and Code of Civil Procedure section 1822.50, to "investigate the quality of any waters" upon Masonite's timberland, is here invalid as permitting a constitutionally forbidden search.

We disagree for the following reasons.

Masonite Corporation's unimproved timberland, for the purposes of any constitutional discussion, will reasonably be deemed, or equated with, "open fields."

It had long been the nation's high court's holding that "[T]he special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." (Hester v. United States (1924) 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898.) But some doubt was thereafter cast upon the absolutism of that holding by the court's later declaration in Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, that "the Fourth Amendment protects people, not places." And then, elaborating Katz, the court thereafter stated that "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." (Rakas v. Illinois (1978) 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387.)

California's high court had anticipated the holding of Rakas, when in People v. Bradley (1969) 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 460 P.2d 129, it stated: "A number of cases in upholding searches in open fields or grounds around a house have stated their conclusions in terms of whether the place was a 'constitutionally protected area.' ... That phrase, however, does not afford a solution to every case involving a claim of an illegal search and seizure ..., and we believe that an appropriate test is whether the person has exhibited a...