People ex rel. Dept. of Con. v. El Dorado
| Decision Date | 09 May 2003 |
| Docket Number | No. C039428.,C039428. |
| Citation | 133 Cal.Rptr.2d 780,108 Cal.App.4th 672 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE EX REL. DEPARTMENT OF CONSERVATION et al., Plaintiffs and Appellants, v. EL DORADO COUNTY et al., Defendants and Respondents, Loring Brunius, Real Party in Interest and Respondent, California Mining Association et al., Interveners and Respondents. |
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Richard M. Thalhammer, Deputy Attorney General, for Plaintiffs and Appellants.
Louis B. Green, County Counsel, Edward L. Knapp, Chief Assistant County Counsel; The Diepenbrock Law Firm, Mark D. Harrison and Gene K. Cheever, Sacramento, for Defendants and Respondents.
Becker & Runkle and David C. Becker, Cameron, for Real Party in Interest and Respondent.
Bingham McCutchen, David E. Moser and Peter M. Morrisette, San Francisco, for Interveners and Respondents.
At issue in this case is whether the Director of the Department of Conservation (Director) has standing to challenge, by way of a petition for a writ of administrative mandamus, a lead agency's actions in approving reclamation plans and financial assurances for surface mining operations under the Surface Mining and Reclamation Act of 1975 (SMARA) (Pub. Resources Code, § 2710 et seq.), the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), and local land use ordinances. We conclude that given the limited advisory role of the Director under SMARA, and given the ability of the State Mining and Geology Board (the Board) to take over the powers of a lead agency under SMARA, the Director lacked standing to pursue his claims against El Dorado County (the County) and real party in interest Loring Brunius. We affirm the judgment of dismissal.
The trial court awarded over $500,000 in attorney fees under Code of Civil Procedure section 1021.5, the private attorney general statute. We find this award was error, as this lawsuit did not result "in the enforcement of an important right affecting the public interest." (Code Civ. Proc., § 1021.5.) We reverse the order awarding attorney fees.
This case is a reaction to prolonged recalcitrance, both in the delinquency of real party in interest Loring Brunius in bringing his surface mining operations in the County into compliance with SMARA, and the County's failure to enforce the provisions of SMARA.
In 1975, the Legislature enacted SMARA. (Stats. 1975, ch. 1131, § 11, pp. 2793-2803.) SMARA requires that all surface mining operations have an approved reclamation plan and approved financial assurances to implement the reclamation plan. (Pub. Resources Code, § 2770, subd. (a); all further unspecified section references are to this code.) The County, as lead agency, was primarily responsible for ensuring compliance with SMARA in the County. (§ 2774.1, subd. (f).)
Brunius has two surface mining operations in the County, the Weber Creek Quarry and the Diamond Quarry. In the mid 1990's, he was operating both without approved reclamation plans and financial assurances. The statutory deadline for compliance with SMARA had long since expired. Those with existing surface mining operations were to submit reclamation plans by March 31, 1988. (§ 2770, subd. (b).) Unless there is an approved reclamation plan and financial assurances, or unless an appeal of the nonapproval was filed by July 1, 1990, as to reclamation plans, and January 1, 1994, as to financial assurances, continuation of a surface mining operation is prohibited. (§ 2770, subd. (d).)
In response to this situation, both the Director and the Board took actions to enforce SMARA. The Director brought suit against Brunius. A stipulated judgment in June 1995, required Brunius to pay the Director $70,000 in administrative penalties.1 These penalties would be reduced if Brunius took actions to comply with the law, including submitting proposed reclamation plans, posting interim financial assurances, and obtaining approval for reclamation plans and financial assurances for both mines by certain dates. Brunius failed to comply. In March 1997, the Director sent Brunius notice to cease all mining activity at Weber Creek Quarry and Diamond Quarry. Brunius secured a preliminary injunction against operation of the cease and desist order based on his pending applications for reclamation plans and financial assurances.
Meanwhile, the Board had concluded that the County had knowingly allowed Weber Creek Quarry to operate since 1982 without an approved reclamation plan and since 1994 without approved financial assurances in violation of SMARA. After the County failed to rectify this situation, the Board commenced procedures to assume the powers of a lead agency under SMARA in the County.
Thus, prodded into action, Brunius submitted proposed reclamation plans and financial assurances for both mines. During the review process, the Director submitted extensive comments on the inadequacy of the reclamation plans and financial assurances. On July 24, 1997, the County's Planning Commission approved a mitigated negative declaration, a reclamation plan, and financial assurances for both Weber Creek Quarry and Diamond Quarry.
The Director appealed these approvals to the County's Board of Supervisors. In late August, the Board of Supervisors adopted the mitigated negative declaration for each mine, and approved the reclamation plans and financial assurances.
In separate petitions for a writ of administrative mandamus, the Director sought to vacate the County's approval of the reclamation plans and financial assurances and the mitigated negative declaration as to both Weber Creek Quarry and Diamond Quarry. The Director alleged the reclamation plans and financial assurances were inadequate to comply with SMARA. The major inadequacies included design for erosion control, slope stability analysis, reclamation and stability of the one-half inch minus stockpile, and protection against groundwater contamination. The Director further alleged the County violated CEQA in approving the mitigated negative declarations for each operation. The project descriptions were incomplete; the County failed to determine Brunius's right to mine without a permit; and the County failed to require an environmental impact report to evaluate the elimination of resoiling and revegetation, the inadequacy of financial assurances, the failure to require safety fencing near residential neighborhoods, increased dust and asbestos concerns, the alteration of the stream bank, the impact on the red-legged frog, erosion control, and groundwater contamination. The two cases were consolidated.
In March 1998, the Director filed amended petitions. As to the Weber Creek Quarry, he added a challenge to the County's finding that Brunius had a vested right to operate the mine without a permit or that the County was estopped from enforcing its land use ordinance. As to the Diamond Quarry, the Director contended the County failed to enforce its land use ordinances by allowing Brunius to expand his mining operations without a permit.
The California Mining Association, the Construction Materials Association of California, and the Southern California Rock Products Association (hereafter Interveners), all trade associations, moved to intervene in the action. Interveners argued that the Director exceeded his statutory authority in challenging the County's implementation of SMARA. The application was granted.
The County, Brunius, and Interveners all demurred to the petitions on the basis that the Director lacked standing. The trial court overruled the demurrers, finding the Director's official responsibilities gave him standing to seek judicial review of the action by a lead agency under SMARA. This court denied Interveners' and the County's petitions for a writ of mandate or other relief.
The County and Brunius answered the petitions, raising lack of standing as an affirmative defense. Interveners' complaint in intervention alleged no standing.
The County moved for summary adjudication on the third claim in the Weber Creek Quarry writ. That claim challenged the County's finding that the Weber Creek Quarry was a vested use or that the County was estopped from requiring a permit. The County offered two bases for summary adjudication. First, the Director had no standing; second, the undisputed evidence demonstrated there was substantial evidence to support the County's finding. The trial court granted the motion, finding substantial evidence of a vested right.
In October 2000, over three years after the original petitions were filed, the County moved to dismiss the remainder of the case for delay in prosecution. Alternatively, the County moved to dismiss the CEQA claims for failure to timely request a hearing under section 21167.4. Section 21167.4 requires that petitioner request a hearing within 90 days of filing the petition or be subject to dismissal. Brunius also moved to dismiss. The Director opposed the motion, arguing he timely requested a hearing. He also moved for mandatory relief under Code of Civil Procedure section 473, subdivision (b), on the basis that any failure to set a timely hearing was solely the fault of counsel. The trial court denied the Code of Civil Procedure section 473, subdivision (b) motion and granted the motion to dismiss the CEQA claims.
Briefing was then completed on the remaining claim of whether the County had followed SMARA in approving the reclamation plans and financial assurances. Interveners argued that if the County violated SMARA, the remedy was to go to the Board which could take over the powers of a lead agency. The County, in addition to addressing the merits, argued that a decision for the Director would have the effect of changing...
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