People v. Osborn

• Citation: 11 Cal.Rptr.3d 14,116 Cal.App.4th 764
• Decision Date: 08 March 2004
• Docket Number: No. C042750,C042750
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Phillip Wright OSBORN, Defendant and Appellant.

11 Cal.Rptr.3d 14

116 Cal.App.4th 764

The PEOPLE, Plaintiff and Respondent, v. Phillip Wright OSBORN, Defendant and Appellant.

No. C042750

Court of Appeal, Third District

March 8, 2004

As Modified on Denial of Rehearing April 2, 2004

Review Denied June 9, 2004

William Cushman, Yreka, for Defendant and Appellant.

R. Dabney Eastham for The New 49'ers, Inc. as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Peter E. Von Haam, Deputy Attorney General, for Plaintiff and Respondent.

DAVIS, J.

This is a civil action under Fish and Game Code section 5653 et seq. and former Fish and Game Code section 1603 involving suction dredging into the bank of a stream.¹ Section 5653 et seq. is the principal statutory scheme that governs suction dredging. One of the regulations adopted pursuant to this statutory scheme prohibits "suction dredg[ing] into the bank of any stream, lake or river." (Cal.Code Regs., tit. 14, § 228, subd. (f)(2); § 5653.9.)² Former section 1603, provided, in part, that "[i]t is unlawful for any person to ... substantially change the ... bank of any ... [designated] stream" without first notifying the Department of Fish and Game (the Department). (Former § 1603, subd. (a).)³ Here the Department, pursuant to Regulation 228, subdivision (f)(2), cited the defendant, Phillip Osborn, for suction dredging into the bank of the Klamath River.⁴ Based on that citation, the People then sued Osborn under former section 1603 for substantially changing the bank without notice.

In this appeal, we interpret the term "bank" — as applied to the activity of suction dredging in a stream as governed by these statutes and Regulation 228, subdivision (f)(2) — in its ordinary sense: the slope or elevation of land that bounds the bed of the stream in a permanent or longstanding way, and that confines the stream water up to its highest level. (See §§ 1603, 5653; Regulation 228, subd. (f)(2).) In arriving at this interpretation, we conclude that section 5653.5 — which defines "river, stream, or lake" for purposes of section 5653 — does not exclusively govern where suction dredging may take place once it is allowed in any particular river, stream or lake. In light of our interpretation of the term "bank," we affirm the judgment that enjoined and fined Osborn. (Former § 1603.1; now see § 1615.)

BACKGROUND

As defined by regulation, suction dredging, also called vacuum dredging, is the use of a suction system to remove and return material at the bottom of a river, stream, or lake for the extraction of minerals, primarily gold. (Regulation 228, intro. para.) Recreational suction dredging represents 90 percent of all suction dredging.⁵

Suction dredges usually consist of an engine and pump that can be floated on a makeshift raft, an intake line to supply the pump with water, and a high pressure line attached from the pump to a submerged intake nozzle. Water from the high pressure line is introduced into the submerged part of the dredge (operated by someone with underwater air tanks) and directed backwards to create a powerful suction at the nozzle. Sand, gravel, and rocks from the river, stream or lake bottom are drawn through the intake nozzle to a riffle box and then out the rear of the dredge as "tailings."

In 1961, the Legislature adopted section 5653 to govern suction dredging. (Stats.1961, ch. 1816, § 1, p. 3864.) Following the enactment of section 5653, the Department "informally regulated" suction dredging for about three decades. In 1994, pursuant to authority granted under section 5653.9, the Department adopted formal regulations to carry out section 5653: Regulations 228 and 228.5.

Regulation 228, subdivision (f), sets forth certain restrictions regarding suction dredging. Among these restrictions is that "[n]o person may suction dredge into the bank of any stream, lake or river." (Regulation 228, subd. (f)(2).) Regulation 228, subdivision (f) also states that operating outside these specified restrictions "may require compliance with Fish and Game Code sections 1600-1607, which govern lake and streambed alterations." Former section 1603, subdivision (a), stated in pertinent part that "[i]t is unlawful for any person to ... substantially change the bed, channel, or bank of any river, stream, or lake designated by the [D]epartment, or use any material from the streambeds, without first notifying the [D]epartment of that activity...."

The Department cited Osborn for violating Regulation 228, subdivision (f)(2) (suction dredging into the bank of the Klamath River). Based on this citation, the People brought a civil action against him under former section 1603. As part of its action, the People also sued Osborn for an unlawful business practice under Business and Professions Code section 17200, but this count was dismissed because Osborn was not acting in a business capacity during his suction dredging.

The trial court concluded that Osborn had violated former section 1603 by dredging into the bank (while it was under water), without first notifying the Department. The trial court defined "bank" as "the area that confines the lateral movement of the stream," adding that the "water level is not relevant" to this definition. The trial court enjoined Osborn from doing such dredging without notifying the Department and imposed a $3,500 civil penalty against him. (Former § 1603.1.) This appeal ensued.

DISCUSSION

The relevant facts are undisputed, including the location of Osborn's suction dredging, which took place under the water near the edge of the waterway. The question is the legality of that suction dredging. That question requires us to interpret certain statutes and regulations.

"Our objective in interpreting a statute is to determine legislative intent so as to effectuate the law's purpose. The first thing we do is read the statute, and give the words their ordinary meanings unless special definitions are provided. If the meaning of the words is clear, then the language controls; if not, we may use various interpretive aids." (Schnyder v. State Bd. of Equalization (2002) 101 Cal.App.4th 538, 545, 124 Cal.Rptr.2d 571, fns. omitted.)

Initially, we face the threshold issues of whether former section 1603 plays any role here, or whether the section 5653 statutory scheme, as Osborn maintains, exclusively governs suction dredging, including specifying where suction dredging is allowed.

Indisputably, section 5653 et seq. is the principal statutory scheme on suction dredging. Section 5653 sets forth the governing theme, stating in relevant part: "(a) The use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the [D]epartment in compliance with the regulations adopted pursuant to Section 5653.9 .... [¶] (b) Under the regulations adopted pursuant to Section 5653.9, the [D]epartment shall designate waters or areas wherein vacuum or suction dredges may be used pursuant to a permit, waters or areas closed to those dredges, the maximum size of those dredges that may be used, and the time of year when those dredges may be used. If the [D]epartment determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the operation will not be deleterious to fish, it shall issue a permit to the applicant." Another statute in the section 5653 et seq. scheme, section 5653.7, authorizes the closing of dredging areas "when necessary to protect fish and wildlife resources."

The regulations on suction dredging specify requirements regarding permits and equipment, as well as restrictions regarding methods, places and times of operation. (Regulations 228, 228.5.)

Former section 1603 did not specifically mention suction dredging but made it unlawful to substantially divert the flow or to substantially change the bed, channel, or bank of any Department-designated river, stream, or lake, or to use any material from the streambeds, without first notifying the Department of that activity. (Former § 1603, subd. (a).) The statute's purpose was to protect fish and wildlife resources. (Ibid.; now see § 1602.)

Osborn argues that section 5653.5 exclusively governs where suction dredging may take place once such dredging is allowed in any particular river, stream or lake. Section 5653.5 states that, "[f]or purposes of Section 5653, `river, stream, or lake' means the body of water at the current water level at the time of the dredging." Osborn asserts that since it is undisputed that he was suction dredging in a stream under the current water level at the time of the dredging and he had a valid permit, that is the end of the matter — he was acting legally.

The problem with this argument is that Osborn sees section 5653.5 as an end when it is really just a beginning. Section 5653.5 states, in general terms only, where suction dredging may take place if it is allowed at all: under the current water level at the time of the dredging. Section 5653.5 recognizes the nature of suction dredging, which takes place under water, and recognizes that water levels in bodies of water where suction dredging is allowed may change suddenly and unexpectedly. (See e.g., § 5653.7 [authorization to close dredging areas upon unanticipated water level change].)

Furthermore, section 5653.5 defines "`river, stream, or lake'" "[f]or purposes of Section 5653." Section 5653 prohibits suction dredging "in any river, stream, or lake" in California — meaning suction dredging is generally prohibited as to those water bodies at their current water levels — "except as authorized under a permit issued ... by the [D]epartment in compliance" with the Regulations. (§§ 5653, subd. (a), 5653.5.) Section 5653 adds that the regulations "shall designate waters or areas wherein ... suction dredges may be...