People ex rel. Deukmejian v. Mendocino County
| Decision Date | 20 May 1983 |
| Citation | 143 Cal.App.3d 188,191 Cal.Rptr. 598 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE ex rel. George DEUKMEJIAN, as Attorney General, etc., Plaintiff and Respondent, v. COUNTY OF MENDOCINO et al., Defendants and Appellants; Proponents of the Initiative et al., Intervenors and Appellants. A016301. |
For Opinion on Hearing see, 204 Cal.Rptr. 897, 683 P2d 1150.
George Deukmejian and John K. Van De Kamp, Attys. Gen., R.H. Connett, Asst. Atty. Gen., M. Anne Jennings, Allene C. Zanger, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
John A. Drummond, County Counsel, Stephen D. Underwood, Deputy County Counsel, County of Mendocino, Ukiah, for defendants and appellants.
Laurens H. Silver, Sierra Club Legal Defense Fund, Inc., San Francisco, Francia M. Welker, Fort Bragg, Phillip S. Berry, Berry & Berry, Oakland, for intervenors and appellants (Sierra Club).
Barry Vogel, Vogel & Rosen, Ukiah, for proponents of the Initiative and Owners of Endangered Real Property.
Wesley R. Higbie, Hendrickson, Higbie, Mingst & Cole, San Francisco, amicus curiae.
At issue in this action for declaratory and injunctive relief is the validity of a Mendocino County initiative ordinance prohibiting the aerial application of phenoxy herbicides. Summary judgment was entered for plaintiff, the State of California, on the ground of state preemption. Defendants are Mendocino County and certain county officers (County); among numerous intervenors for defendants are the Sierra Club and a group called the Proponents of the Initiative and Owners of Endangered Real Property (Proponents).
Neither the hazards nor the efficacy of the use of phenoxy herbicides is at issue here. The questions raised in this appeal relate solely to the county electorate's authority to enact this ordinance: whether the ordinance conflicts with or supplements state law; whether the state has impliedly preempted the field of pesticide regulation or authorized the ordinance as a pollution control measure; and whether the ordinance is preempted by federal law. We conclude, as hereafter explained, that the state has preempted the regulation of the application of pesticides; therefore, Mendocino County's ordinance banning aerial application of phenoxy herbicides is invalid.
Among other uses, phenoxy herbicides are used to retard hardwood growth in favor of conifer growth. (See Sierra Club v. Peterson (9th Cir., 1983) 705 F.2d 1475.) In February 1979 the voters of Mendocino County approved an initiative measure prohibiting the aerial application in that county of phenoxy herbicides, including but not limited to 2,4,5-T, 2,4,-D, Silvex, and any matter containing the chemical dioxin. The ordinance includes an explanation of its purpose: A violation of the ordinance is a misdemeanor.
In this action filed by the Attorney General on behalf of the People of the state, the trial court granted summary judgment declaring the ordinance invalid. The court concluded that the state Legislature has entirely preempted the field of pesticide and herbicide regulation, leaving both the County's board of supervisors and the voters of the County without authority to prohibit the aerial spraying of these chemicals.
Both the state and the federal governments extensively regulate the use of pesticides. 1 (7 U.S.C. § 136 et seq.; Cal.Food & Agr.Code, § 11401 et seq.; see Comment, The Regulation of Pesticide Use in California (1978) 11 U.C. Davis L.Rev. 273, 278.) Federal law requires registration of pesticides with the Environmental Protection Agency, prohibits the sale within a state of unregistered pesticides, and establishes standards for the certification of pesticide applicators, among other requirements; in addition, federal law permits states to operate their own regulatory programs subject to certain limitations. (Ibid.)
In California, division 6 of the Food and Agricultural Code generally regulates those who are in the business of recommending, selling, and applying pesticides, and requires, inter alia, that they be licensed by the state. (See, e.g., Food & Agr.Code, §§ 11701-11711, 12001-12024, 12101-12112.) Division 7 of the same code regulates more directly the use of agricultural chemicals. (Id., § 12501 et seq.) Among the stated purposes of the regulatory scheme are: (1) providing for the safe and efficient use of pesticides essential for production of food and fiber and for protection of the public health and safety; (2) protecting the environment from harmful pesticides by prohibiting, regulating, or controlling their use; (3) assuring agricultural and pest control workers of safe working conditions where pesticides are present; and (4) permitting agricultural pest control by competent and responsible licensees and permittees under strict control. (Id., § 11501.)
The director of the Department of Agriculture and the agricultural commissioner of each county under the director's supervision enforce the state's regulatory program. (Food & Agr.Code, § 11501.5.) The director is authorized to adopt regulations governing the conduct of the pest control business, which can be of statewide applicability or tailored to local needs. (Id., §§ 11502, 14006.) In addition, the county commissioner, who is appointed by the county board of supervisors (id., § 2121), is authorized to adopt regulations in light of local conditions, subject to the director's approval. (Id., § 11503.) With certain exceptions not relevant here, no person is to use any pesticide for any agricultural use except under a written permit of the commissioner. (Id., § 14006.5.)
The code also mandates the director to designate a list of "restricted materials" based upon danger to public health, or hazards to applicators and farmworkers, animals or crops, and the environment, and requires the adoption of regulations governing their application. (Food & Agr.Code, §§ 14004.5, 14005.) Those regulations are to prescribe when, where, and how a restricted material may be used in different areas of the state, and may prohibit its use in such areas. (Id., § 14006.) With even more specificity, the code requires the director to adopt regulations governing the use of 2,4,-D and any other herbicide which he determines is injurious to any crop being grown in any area of the state. (Id., § 14033.)
Consistent with these legislative directives, detailed regulations have been promulgated designating "restricted materials," among which are the phenoxy herbicides. (Cal.Admin.Code, tit. 3, § 2450, subd. (m).) Regulations also establish criteria and procedures to be used by commissioners in issuing permits for the use of restricted materials. For example, prior to issuing such a permit, the commissioner is to determine if a "substantial adverse environmental impact" may result from its use. If such an impact is likely, the commissioner is to determine if there is a feasible alternative, including the alternative of no pesticide application. (Id., § 2452, subd. (j)(8).) Numerous other regulations govern the use of particular restricted materials. (See, e.g., id., §§ 2453-2456, 3135-3145.) Regulation 2458 explicitly restricts the aerial application of herbicides, by specifying when and where herbicides may be applied by aircraft, under what wind conditions and at what altitude discharge is permitted, and what equipment is required. (See also id., § 2457.)
Defendants contend that this statutory scheme does not indicate that the Legislature intended to preempt the field of pesticide control, and that the local ordinance is actually authorized by state law.
The California Constitution restricts local lawmaking to "all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7.) (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808, 100 Cal.Rptr. 609, 494 P.2d 681.) "Local legislation may be preempted by implication if the Legislature's intent to occupy a particular field is apparent from the whole purpose and scope of the legislative scheme. Preemption by implication exists if one of three tests is met: " '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.' " (Galvan v. Superior Court (1969) 70 Cal.2d 851, 859-860, 76 Cal.Rptr. 642, 452 P.2d 930; Bell v. City of Mountain View (1977) 66 Cal.App.3d 332, 338, 136 Cal.Rptr. 8.) The number of statutes dealing with a subject is not determinative alone; the court must determine whether a "patterned approach" to the subject can be detected. (Galvan, supra, 70 Cal.2d at pp. 861-862, 76 Cal.Rptr. 642, 452 P.2d 930.) In determining whether there has been an...
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