Leslie Salt Co. v. San Francisco Bay Conservation etc. Com.

• Decision Date: 26 March 1984
• Citation: 153 Cal.App.3d 605,200 Cal.Rptr. 575
• Court: California Court of Appeals Court of Appeals
• Parties: LESLIE SALT COMPANY, Plaintiff and Respondent, v. SAN FRANCISCO BAY CONSERVATION & DEVELOPMENT COMMISSION, Defendant and Appellant. Save San Francisco Bay Association, Intervenor, and Appellant. AO15397.

Page 575

200 Cal.Rptr. 575

153 Cal.App.3d 605

LESLIE SALT COMPANY, Plaintiff and Respondent, v. SAN FRANCISCO BAY CONSERVATION & DEVELOPMENT COMMISSION, Defendant and Appellant Save San Francisco Bay Association, Intervenor, and Appellant.

AO15397.

Court of Appeal, First District, Division 2, California.

March 26, 1984.

Hearing Denied May 24, 1984.

Edgar B. Washburn, Nancy J. Stivers, Washburn & Kemp, San Francisco, for respondent Leslie Salt Co.

John K. Van de Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Dennis M. Eagan, Kathleen W. Mikkelson, Deputy Attys. Gen., San Francisco, for appellant Save San Francisco Bay Conservation and Development Com'n.

E. Clement Shute, Jr., Alletta d'A. Belin, Shute, Mihaly & Weinberger, San Francisco, for appellant Save San Francisco Bay Ass'n.

KLINE, Presiding Justice.

This case presents the question whether the McAteer-Petris Act (Gov.Code, §§ 66600 et seq.) ¹ , which created the San Francisco Bay Conservation and Development Commission (BCDC) and defines its jurisdiction and powers, allows BCDC to hold a landowner responsible for unauthorized bay fill placed on its property by unknown third persons.

Facts

The facts are not materially in dispute. Sometime between August 11, 1971, and October 4, 1976, fill consisting of several hundred tons of earth, gravel, asphalt, broken concrete and other demolition materials, along with a barge-like structure, was placed on marshy wetlands in the Alviso Slough and adjacent shoreline on parcels located in Santa Clara County owned by respondent Leslie Salt Co. (Leslie). These fill activities took place within BCDC permit jurisdiction. ²

BCDC discovered the fill in December 1979 and initiated administrative enforcement procedures almost immediately. Pursuant to section 66643, BCDC appointed a fact-finding committee, consisting of five of its members, to conduct hearings and receive evidence. Six months later the committee adopted findings and recommendations which it presented to BCDC at its July 17, 1980, meeting. BCDC adopted the committee's findings and recommendations. The findings, as pertinent, may be summarized as follows:

Between August 11, 1971, and October 4, 1976, approximately 19,400 square feet of area on property then and now owned by Leslie were filled with earth and similar fill materials, the major portion of which was placed prior to June 17, 1973. During that same period, a barge-like structure approximately 30 feet by 100 feet was relocated from a portion of property owned by Leslie to an area partly within that parcel and partly on other land.

A permit for such fill or barge relocation was required after September 17, 1965, pursuant to section 66632, subdivision (a), and none had been granted.

The filled area was not licensed by Leslie to anyone at the time the illegal filling occurred, although the adjacent area to the west and south of the filled area was under license to Marshland Development Inc. (Marshland) as of January 8, 1974. No evidence was introduced that Leslie placed the fill itself or authorized anyone else to do so.

Employees of Leslie regularly visited salt ponds close to the area of the fill but no reports of filling activity were received by the company. The manager of real property for Leslie was not aware of any fill activity on parcels owned by Leslie until December 1979. Leslie did not as a matter of company policy assume responsibility for policing or regularly inspecting the land in question owned by it. ³

Gates controlled the entry of unauthorized vehicles and persons onto the adjacent Marshland site; but no gates or fences were maintained by Leslie to control access to the property in question.

No evidence was presented that Leslie had knowledge of the fill activities prior to the BCDC investigation; nor did BCDC expressly find Leslie negligent in failing to prevent the fill. BCDC instead issued a cease and desist order providing, inter alia, that Leslie was to remove the fill material within six months or be subject to penalties of $6,000 for each day in which the violation persisted. ⁴ BCDC staff calculated that it would cost Leslie $60,500 to remove the fill; but Leslie claimed the correct cost figure was $100,000. Although BCDC expressed an interest in considering mitigation proposals, Leslie declined to submit any.

Thereafter, Leslie filed a petition for writ of mandate in the Santa Clara County Superior Court pursuant to Code of Civil Procedure section 1094.5. ⁵ By this petition, Leslie sought a writ directing BCDC to set aside the cease and desist order and a stay of the order pending determination of the validity of that administrative order. BCDC stipulated to the stay pending the instant appeal. Appellant Save San Francisco Bay Association intervened in the action on the side of BCDC pursuant to stipulation of the parties.

The trial court rendered judgment for Leslie, and issued a peremptory writ directing BCDC to set aside the cease and desist order. The court found that the language of sections 66632 and 66638 was plain, clear and unambiguous and required "the person who places the fill to obtain a permit or the person who violates the statute to suffer the consequences." The court ruled that the McAteer-Petris Act "does not contain any authority for BCDC to issue a cease and desist order against a person other than one who actually placed the fill upon Leslie's land." In the absence of evidence that Leslie placed the fill or authorized others to do so, there was "not substantial evidence in light of the whole record to support BCDC's issuance of [the] Cease and Desist Order No. CCD5-79(A)." BCDC and Save San Francisco Bay Association thereafter filed this appeal.

Where, as here, the facts are not in significant dispute, we are not bound by the trial court's conclusions of law but must independently ascertain the conclusion that must properly be drawn from the pertinent facts set forth in the record. (People ex rel S.F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533, 543, 72 Cal.Rptr. 790, 446 P.2d 790, and cases there cited.)

Our conclusion that the McAteer-Petris Act does provide authority for BCDC to issue the subject cease and desist order, and that the trial court erred, results from a two-part analysis. We first determine that the broad interpretation of the words in question urged by BCDC is consistent with the entire enactment in which those words appear and that the competing interpretation advanced by Leslie is inconsistent with that enactment. We then determine that the exposure to strict liability that results from such broad interpretation is an appropriate traditional consequence of the possession and control of land.

I.

Section 66632 requires a person or government agency wishing to place fill ⁶ within the area of BCDC's jurisdiction to secure a permit from the commission. ⁷ That section further provides that "[a]ny person who places fill ... within the area of the commission's jurisdiction without securing a permit from the commission as required by this title is guilty of a misdemeanor." (§ 66632, subd. (a).) Section 66638, which is an alternative enforcement device and the one utilized in the instant case, authorizes BCDC to issue cease and desist orders against any person or governmental agency that "has undertaken, or is threatening to undertake, any activity" that requires a permit or is inconsistent with any permit previously issued by the commission. ⁸

Section 66640 provides a mechanism whereby the Attorney General may seek an injunction in superior court to restrain any person or persons from continuing any activity in violation of the cease and desist order issued by BCDC. Section 66641 provides that "[a]ny person or governmental agency who intentionally or negligently violates any cease and desist order issued, reissued, or amended by the commission or the executive director may be liable civilly in a sum of not to exceed six thousand dollars ($6,000) for each day in which such violation persists." (§ 66641, subd. (a).) This section also provides that "[r]emedies under this section are in addition to, and do not supersede or limit, any and all other remedies, civil or criminal." (§ 66641, subd. (d).)

Leslie contends that the plain meaning of the McAteer-Petris Act, and particularly section 66638, precludes its application to any person or entity other than the one who actually placed the fill. Leslie's contention that the statute is clear and unambiguous in this respect is built upon its reading of the crucial phrase in section 66638 that BCDC may only issue a cease and desist order against a person or agency that "has undertaken, or is threatening to undertake" any unauthorized fill activity. (§ 66638, subd. (a).) Leslie contends, in other words, that the word "undertaken" can only be interpreted to refer to one who actually performs (or threatens to perform) the physical act proscribed. As so construed, Leslie urges, it cannot refer to one who simply does not affirmatively interfere in the unlawful placement of fill by others. Because this language is assertedly so unambiguous, Leslie also maintains that its meaning is not amenable to judicial interpretation.

Leslie heavily and repeatedly relies on the oft-expressed principle that "[w]here the meaning of the statute is plain there is no room or justification for judicial interpretation, and the only function of the court is the application of the enactment to the facts at bar." (Riley v. Robbins (1934) 1 Cal.2d 285, 287-288, 34 P.2d 715.) ⁹ This rule is deceptive, however, because it may erroneously be taken to imply that words have intrinsic meanings. In reality "words do not have single, fixed, and immutable meanings established by some authority in nature or supernature, ... instead, they have only such meanings as are given to them from time to time when they are spoken, written, heard, or read by persons endeavoring to participate in the...