Sagaser v. McCarthy

Decision Date02 January 1986
CourtCalifornia Court of Appeals Court of Appeals
PartiesPhil SAGASER et al., Plaintiffs and Appellants, v. Daniel J. McCARTHY, Director, Department of Corrections et al., Defendants and Respondents. Civ. F005551.
Thomas, Snell, Jamison, Russell & Asperger and E. Robert Wright, Fresno, for plaintiffs and appellants

PAULINE DAVIS HANSON, Associate Justice.

In 1983, legislation was passed by the California Legislature authorizing the location of a prison in or near the City of Avenal in Kings County. (Stats.1983, ch. 958, § 9.) The Department of Corrections (Department) which considered possible sites, became the lead agency (Pub.Resources Code, § 21067) for the preparation of an environmental impact report (EIR). After a draft EIR was completed, notice inviting comment was issued according to guidelines provided in the California Environmental Quality Act (CEQA) (Pub.Resources Code, § 21000 et seq.).

The mandatory 30-day period for comment on the draft EIR provided for in the law ended on August 22, 1984. (Pen.Code, § 7004, amended to § 7007.) Appellants, however, offered no comments until September 26, 1984. When they were unsuccessful in challenging the adequacy of the report through administrative channels, appellants filed an action in Kings County Superior Court. Appellants pleaded six causes of action in a combined petition for writ of mandate and complaint for injunctive relief alleging violations of CEQA provisions, due process, equal protection, a failure to furnish information from public records, and a threatened waste of public funds. They also sought injunctive relief to prohibit groundwater withdrawals; this cause of action was bifurcated by the court and not heard below.

After a hearing, the court ruled in favor of respondents. Appellants filed a notice of appeal urging a reversal of the trial court's judgment on the ground they were denied an opportunity to challenge the adequacy of the EIR in the courts.

While appellants sought relief in the courts, Assembly Bill 2251 was introduced and passed by the Legislature; it was signed by the governor on September 24, 1985. The 1985 legislation found in chapter 931, hereafter referred to as AB 2251, exempted three proposed prison sites, including one near Avenal (Section 34, Township 22 South, Range 17 East, Mount Diablo Base and Meridian), Kings County, from compliance with the requirements of CEQA. The bill carried an urgency clause, and became effective immediately upon the governor's signing the legislation.

AB 2251 (Stats.1985, ch. 931) is a prison-funding bill which also addresses prison construction. In section 4 of the bill, which adds section 21080.03 to the Public Resources Code, AB 2251 specifically exempts the Avenal prison from compliance with CEQA. In section 5, section 9 of the 1983 bill (Stats.1983, ch. 958, § 9) is amended to designate a particular prison site for the Avenal facility and prohibit the use, for prison purposes, of ground water underlying that site. Section 2.5 of AB 2251 adds Penal Code section 7013, which provides that the Department shall contract with the Department of Water Resources or the Bureau of Reclamation to secure an alternative water supply for prison use.

Senate Bill 253 (Stats.1985, ch. 933), passed during the same legislative session, concerns the expansion of various other prisons. Appellants cite SB 253 to highlight legislative discussions of EIRs and to indicate general legislative intent on the construction of prisons.

The pertinent texts of both bills are included in the appendix to this opinion.

After the passage of AB 2251, respondents moved to dismiss as moot the appeal filed by appellants, stating no property right exists in the preparation of an EIR. (See Bakman v. Department of Transportation (1979) 99 Cal.App.3d 665, 689-690, 160 Cal.Rptr. 583; Bookout v. Local Agency Formation Com. (1975) 49 Cal.App.3d 383, 386-388, 122 Cal.Rptr. 668.) They argue no vested right stems from CEQA provisions and no constitutional duty arises on the part of a court to provide relief to those affected by the preparation of an EIR. (Lee v. Lost Hills Water Dist. (1978) 78 Cal.App.3d 630, 634, 144 Cal.Rptr. 510.) They also contend the EIR is clearly an evidentiary document only (Carmel Valley View, Ltd. v. Board of Supervisors (1976) 58 Cal.App.3d 817, 821-822, 130 Cal.Rptr. 249), and that AB 2251 is a procedural statute which is retroactive. Respondents urge the issue raised by the appeal is moot.

Because we hold that AB 2251 is constitutional and valid legislation, and because the validity of AB 2251 is the only issue before us, we must dismiss the appeal as moot. Appellants misconceive the very nature of the CEQA provisions. The rights derived from the environmental act are not of constitutional dimension and the Legislature constitutionally may eliminate any of its requirements. (Lee v. Lost Hills Water Dist., supra, 78 Cal.App.3d 630, 635, 144 Cal.Rptr. 510.) We note that the Legislature itself is not included within the definition of a public agency pursuant to CEQA (Pub.Resources Code, § 21063).

We also point out that California courts rely upon federal precedents to aid in their interpretation of parallel provisions contained in the National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.). In the environmental case, Ely v. Velde (1971) 451 F.2d 1130, 1139, the Fourth Circuit court refused to elevate to a constitutional level such concerns as voiced by appellants. The federal act, NEPA, has been held to create only procedural, not substantive, rights. (Morris v. Tennessee Valley Authority (1972) 345 F.Supp. 321, 324.) The California Legislature has the right to "authorize" projects and to exempt them from the provisions of CEQA--just as does Congress in regard to NEPA (Environmental Defense Fund, Inc. v. Froehlke (8th Cir.1972) 473 F.2d 346, 355).

Appellants attempt to defeat respondents' motion to dismiss the appeal by raising various issues, most of which attack the constitutionality of AB 2251. We discuss the issues raised by appellants and reject their arguments; we grant respondents' motion to dismiss. However, as to the sole issue of attorneys' fees, we remand the matter to the trial court for an evidentiary hearing and a determination as to what fees, if any, appellants are entitled under Code of Civil Procedure section 1021.5.

I The Provisions of SB 253 Do not Prevail Over Those in AB 2251

Appellants contend without success that the amendments contained in SB 253 nullify certain provisions of AB 2251 exempting the Avenal prison from compliance with CEQA. They base their argument upon a broad reading of Government Code section 9605, which provides that a statute enacted later in time will prevail over one enacted earlier in the same legislative session. 1

SB 253 carries a later chapter number (ch. 933) than AB 2251 (ch. 931). Appellants attempt to persuade us that language in SB 253 is contrary to and therefore repeals by implication provisions in AB 2251 exempting the Avenal prison from CEQA regulations. Appellants would have us impose the doctrine that when two or more statutes concern the same subject matter and are in irreconcilable conflict, the most recently enacted statute expresses the will of the Legislature. (In re Thierry S. (1977) 19 Cal.3d 727, 738-739, 139 Cal.Rptr. 708, 566 P.2d 610.)

These two statutes are not in irreconcilable conflict as is readily seen when their underlying purposes are considered. In SB 253, Penal Code section 7004 was renumbered to 7007 and amended to read as follows:

"7007. (a) The Legislature hereby finds and declares that due to the lack of capacity for new inmates in the state prison system, the construction of new prison facilities is of utmost importance to the public safety and well-being. The Legislature further finds and declares that it is in the public's interest to ensure that prisons are planned, designed, and constructed in a manner which is consistent with the California Environmental Quality Act and which minimizes environmental and other impacts upon the communities in which they are located. It is the intent of the Legislature that expeditious planning, construction, and operation of new prisons shall be achieved by so-called 'fast-tracking' of the environmental review process and by acceleration of any actions or proceedings brought pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code, as provided in this section."

Penal Code section 7007, subdivision (a), set out above does not repeal section 21080.03, added to the Public Resources Code by AB 2251.

"21080.03 [Pub.Resources Code]. This division [Div. 13, California Environmental Quality Act] shall not apply to any activity or approval necessary for or incidental to the location, development, construction, operation, or maintenance of the prison in the County of Kings, authorized by Section 9 of Chapter 958 of the Statutes of 1983, as amended, and of the prison in the County of Amador (Ione), authorized by Chapter 957 of the Statutes of 1983, as amended."

A repeal by implication is not favored; there is a presumption against the operation of such a doctrine. (In re Thierry S., supra, 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610.) To avoid its application, statutes in question are read together in an attempt to reconcile rather than nullify their meaning. The doctrine is applied only when no rational basis exists for reconciling the statutes and to do so would destroy the integrity of both. (Ibid.)

Because the meanings of these two statutes can be harmonized without destroying the integrity of either, the doctrine does not come into...

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