People v. New Penn Mines, Inc.

• Decision Date: 05 February 1963
• Citation: 212 Cal.App.2d 667,28 Cal.Rptr. 337
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. NEW PENN MINES, INC., a corporation, Defendant and Respondent. Civ. 10413.
• Court: California Court of Appeals Court of Appeals

Page 337

28 Cal.Rptr. 337

212 Cal.App.2d 667

The PEOPLE of the State of California, Plaintiff and Appellant, v. NEW PENN MINES, INC., a corporation, Defendant and Respondent.

Civ. 10413.

District Court of Appeal, Third District, California.

Feb. 5, 1963.

Hearing Denied April 3, 1963.

Stanley Mosk, Atty. Gen., by J. M. Sanderson Deputy Atty. Gen., Sacramento, for appellant.

Lally, Martin & Luce, Sacramento, and John Amos Fleming, Los Angeles, For respondent.

FRIEDMAN, Justice.

Defendant corporation is owner of the Penn Mine, which lies adjacent to the Mokelumne, River in Calaveras County, a few miles below Pardee Dam. The Attorney General sues it in the name of the People, seeking abatement of a public nuisance caused by drainage of toxic mine wastes into the river and resulting damage to fish life. Defendant demurred generally and on the ground of lack of subject-matter jurisdiction. The lower court sustained the demurrer with leave to amend. The Attorney General declined to amend and judgment was entered from which he appeals.

Since we are reviewing a ruling on demurrer we assume the truth of the complaint. The complaint and an accompanying exhibit allege substantially as follows: In a state of nature the Mokelumne River is the seasonal spawning ground of king salmon and steelhead trout. It also supports a population of nonmigratory game fish. The Penn Mine was once extensively mined for copper and zinc, although for some years it has been relatively inactive. During the years of active extraction operations fluid mine wastes were drained into settling ponds and ore tailings were piled in dump areas. The settling ponds now contain accumulations of finely grained wastes. Both the ore tailings and the accumulated pond wastes are rich in soluble mineral salts. During the rainy season surface water flows over the dumps and pond wastes, picking up concentrations of minerals which drain into the Mokelumne River. These mineral pollutants are extremely harmful to fish life and have resulted in kills of salmon and steelhead.

Basic to the lower court's ruling was the proposition that the problem is one entrusted to the administration of the appropriate regional water pollution control board, acting under the provisions of the Dickey Water Pollution Act (Wat.Code, secs. 13000-13064); that the injunction action must fail because administrative remedies before the water pollution control board had not been attempted, much less exhausted. In response, the Attorney General contends that he has broad common law powers to protect the public against nuisances; that, in the absence of express statutory restriction, his common law powers enable him to invoke the traditional equity powers of the court to abate this public nuisance.

Expressed in one way, the problem appears in a jurisdictional guise, that is, whether the superior court has jurisdiction to entertain a nuisance abatement action when statutory procedures before an administrative agency have not been invoked or exhausted. (See California Oregon Power Co. v. Superior Court, 45 Cal.2d 858, 869-870, 291 P.2d 455.) Expressed in another way, the problem is one of measuring the scope of official authority, that is, whether the statutory powers reposed in the pollution control board trench upon the Attorney General's authority to maintain this particular kind of abatement action. (See People v. City of Los Angeles, 160 Cal.App.2d 494, 503, 325 P.2d 639.) Both questions may be combined in a single inquiry: Has the Legislature delegated exclusive state agency jurisdiction to the water pollution control boards, or does it permit concurrent exercise of the common law powers of the Attorney General?

As chief law officer of the state the Attorney General has broad common law powers. In the absence of legislative restriction he has the power to file any civil action which he deems necessary for the enforcement of the laws of the state and the protection of public rights and interests. (Pierce v. Superior Court, 1 Cal.2d 759, 761-762, 37 P.2d 453, 460, 96 A.L.R. 1020; State v. Finch, 129 Kan. 665, 280 P. 910, 66 A.L.R. 1369; cf. Govt. Code, sec. 12512.) He may file such an action in the name of the people of the state. (People v. Oakland Water Front Co., 118 Cal. 234, 240, 50 P. 305.) A public nuisance may be abated by any authorized officer or agency. (Civ.Code. sec. 3494.) On various occasions in the past California courts have distinctly sanctioned the Attorney General's maintenance of nuisance abatement actions aimed at stream pollution harmful to fish life. (People v. Truckee Lumber Co., 116 Cal. 397, 48 P. 374, 39 L.R.A. 581; People v. Glenn-Colusa Irr. Dist., 127 Cal.App. 30, 15 P.2d 549.)

In 1949 the Legislature adopted the board statutory program called the Dickey Water Pollution Act. The act establishes a state water pollution control board and a series of regional boards. (Wat.Code, secs. 13010, 13011, 13040, 13041.) It sets out three specially defined concepts of water quality impairment, designated respectively as contamination, pollution, and nuisance. (Wat.Code, sec. 13005.) In a general way, the statutory concept of contamination denotes an actual health hazard, while pollution and nuisance refer to the economic and aesthetic spoilage of water. Any person proposing to discharge sewage or industrial waste must apply to the regional board for a set of requirements governing the discharge. (Sec. 13054.) On its own motion, a regional board may prescribe requirements relative to any particular condition of pollution or nuisance, existing or threatened. (Sec. 13053.) Discharges causing 'contamination' must be referred to the state pollution board and to the health authorities. (Secs. 13025, 13052, subd. (g).) Once discharge requirements are established, violations who cause 'pollution' or 'nuisance' are pursued by means of cease and desist orders issued by the regional board. (Sec. 13060.)

Section 13063 describes how the violator of a cease and desist order may be brought before the courts:

'Upon failure of any person or persons to comply with any such cease and desist order of the board, the board issuing the order shall certify the facts to the district attorney for the county in which the discharge originates, whereupon such district attorney shall petition the superior court in and for that county for the issuance of an injunction restraining such person or persons from continuing the discharge in violation of the requirements. The court shall thereupon issue an order directing the person to appear before the court and show cause why the injunction should not be issued. Thereafter the court shall have jurisdiction of the matter, and proceedings thereon shall be conducted in the same manner as in any other action brought for an injunction. The court shall receive in evidence the order of the board, evidence as to the validity and reasonableness of the board's requirements as previously established, and such further evidence as the court in its discretion deems proper.

'When complaint is made to the Attorney General that the district attorney of any county has not performed a duty devolving upon him by the provisions of his division or is not proceeding with due diligence or in the proper manner in the performance of the duty, the Attorney General shall make an investigation. If he finds the charge to be true, the Attorney General shall diligently prosecute the action to secure the issuance of an injunction restraining the person or persons who have failed to comply with any such order of the board from continuing the discharge in violation of the requirements, and in such case he shall have the powers and duties of the district attorney.'

The Dickey Act declares the necessity of coordinating the actions of various state agencies in achieving 'regional' control of water pollution. (Sec. 13000.) In section 13001, subdivision (b), the act states that none of its provisions limits the power of cities and counties to abate nuisances. Section 13001, subdivision (c), provides that none of these provisions limits the power of a state agency in the enforcement of any law which it is specifically permitted or required to enforce.

Concurrently with the Dickey Act, the 1949 Legislature added a section to the Fish and Game Code. Now numbered 5651, it reads as follows: 'Whenever it is determined by the department [of Fish and Game] that a continuing and chronic condition of pollution exists, the department shall report such condition to the appropriate regional water pollution control board, and shall cooperate with and act through such board in obtaining correction in accordance with any laws administered by such board for control of practices for sewage and industrial waste disposal.'

In 1959, for the first time, provisions were added to the Dickey Act authorizing limited summary remedies for the control of pollution and nuisance. Section 13054.4 authorized a district attorney upon request of the regional board to file an injunction action against a discharger who had failed to apply to the board for waste discharge requirements. Section 13080 was also added permitting a district attorney either with or without a request from the regional board to file a civil action to abate pollution or nuisance 'which is transitory in nature or is of short duration but periodic in occurrence.'

The Dickey Act defines industrial waste as 'liquid or solid waste substance, not sewage, from any producing, manufacturing or processing operation of whatever nature.' (Wat.Code, sec. 13005.) Mine wastes, such as ore tailings and refinery run-off, fall within this definition. In one sense the owner or person responsible for an inactive or abandoned mine is not actively 'discharging' industrial waste. Yet, when surface water or some other mechanism causes drainage of accumulated mine wastes into a stream or other water body, a condition of pollution or nuisance, actual or...