Wildlife Alive v. Chickering

Decision Date24 August 1976
Docket NumberS.F. 23417
Citation17 Cal.3d 190,132 Cal.Rptr. 377
CourtCalifornia Supreme Court
PartiesPreviously published at 17 Cal.3d 190 17 Cal.3d 190, 18 Cal.3d 190, 553 P.2d 537, 9 ERC 1920, 6 Envtl. L. Rep. 20,748 WILDLIFE ALIVE et al., Plaintiffs and Appellants, v. Sherman CHICKERING et al., Defendants and Respondents.

Robert M. Berman, San Francisco, and Bruce Tichinin, Morgan Hill, for plaintiffs and appellants.

Ballard Jamieson, Jr., John D. Leshy, Palo Alto, Luce, Forward, Hamilton & Scripps, Thomas M. Hamilton, William M. McKenzie, Jr., Steven S. Wall, San Diego, and Richard M. Freeman, San Francisco, as amici curiae on behalf of plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Raymond H. Williamson and Denis D. Smaage, Deputy Attys. Gen., for defendants and respondents.

Ronald A. Zumbrun, Raymond M. Momboisse, Elleene A. Kirkland, Sacramento, and Louis E. Goebel, as amici curiae on behalf of defendants and respondents.


This case raises the general question whether the California Environmental Quality Act of 1970 (CEQA) (Pub.Resources Code, § 21000 et seq.) applies to the Fish and Game Commission (the commission). We will conclude that it does.

In 1974 the commission, in accordance with its normal procedures (Fish & G.Code, § 200 et seq.; Cal.Admin.Code, tit. 14, §§ 1.05--781), fixed the dates for the hunting of black bear and issued hunting permits for the 1974 season. Shortly before the season was to open, Wildlife Alive, The Endangered Species Committee of California, and certain individuals (plaintiffs) unsuccessfully petitioned the San Francisco Superior Court for a writ of mandate requiring the commission to suspend the season and revoke the permits. Plaintiffs appeal contending that prior to setting the hunting season the commission failed to exercise its mandatory duty under CEQA to prepare an environmental impact report (EIR), a report required on all proposed projects that 'may have a significant effect on the environment.' (Pub.Resources Code, § 21100.) Defendants' responding argument that the commission is exempt frames the central issue--does CEQA apply?

Implied Exemption

We commence our analysis by observing that CEQA contains no express exemption for the commission. On the contrary, its provisions are made expressly applicable to All state agencies. (Pub.Resources Code, §§ 21000, subd. (g), 21001, subds. (f), (g), 21082, 21106.) We note further that the Legislature has provided for a number of specific exemptions from CEQA (e.g., Pub.Resources Code, §§ 21085, 21172; Wat.Code, § 13389), none of which are expressly applicable to the commission. Under the familiar rule of construction, Expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed. (State Board of Education v. Levit (1959) 52 Cal.2d 441, 461, 343 P.2d 8; Estate of Pardue (1937) 22 Cal.App.2d 178, 181, 70 P.2d 678.) This rule, of course, is inapplicable where its operation would contradict a discernible and contrary legislative intent. (In re Cathey (1961) 55 Cal.2d 679, 689, 12 Cal.Rptr. 762, 361 P.2d 426.) As explained below, however, we conclude that application of this rule of construction is consistent with the legislative purpose in enacting CEQA.

In determining the Legislature's intent in this area, we find of special significance the recent adoption of Public Resources Code section 21080.5 (signed by the Governor on Sept. 30, 1975, and effective Jan. 1, 1976; Stats.1975, ch. 1187, pp. --- - --- *.) This amendment to CEQA creates an alternative to the EIR requirement for qualified state agencies having important environmental protection responsibilities. Agencies may satisfy their EIR obligation under this section by adopting and adhering to a regulatory program determined by the Secretary of the Resources Agency (the secretary) to include the following features: written plans of proposed projects with alternatives and mitigation measures available to minimize any significant environmental impact (Pub.Resources Code, § 21080.5, subd. (b)(3) (i)); consultation by the agency with other public officers and agencies (§ 21080.5, subd. (b)(2)(iii)); notice to the public and opportunity for public review and comment (§ 21080.5, subd. (b)(2)(vi)); written responses by the agency to 'significant environmental points raised during the evaluation process' (§ 21080.5, subd. (b)(2)(iv)); and a requirement that a project be disapproved if there are feasible alternatives to the proposed action which 'would substantially lessen any significant adverse impact' on the environment (§ 21080.5, subd. (b)(2)(i)). For a number of reasons the adoption of section 21080.5 reinforces our conclusion that the Legislature did not intend that the commission enjoy an exemption from the operation of CEQA.

First, under the doctrine of Expressio unius est exclusio alterius, the creation of a limited express exemption suggests that a broader implied exemption could not have been intended. "In the grants (of powers) and in the regulation of the mode of exercise, there is an implied negative; an implication that no other than the expressly granted power passes by the grant; that it is to be exercised only in the prescribed mode. . . ." (Martello v. Superior Court (1927) 202 Cal. 400, 405, 261 P. 476, 478, citation omitted; see also Morse v. Municipal Court (1974) 13 Cal.3d 149, 159, 118 Cal.Rptr. 14, 529 P.2d 46; State Board of Education v. Levit, supra, 52 Cal.2d 441, at p. 461, 343 P.2d 8; Gilgert v. Stockton Port District (1936) 7 Cal.2d 384, 387, 60 P.2d 847; Wheeler v. Herbert (1907) 152 Cal. 224, 237, 92 P. 353.) Accordingly, the express exemption created in section 21080.5 for certain agencies which follow specified abbreviated procedures may fairly be said to imply a rejection of other exemptions not expressly granted in CEQA.

Second, the terms of section 21080.5 seem to apply specifically to the commission. The various duties of the commission include a number of environmental responsibilities. For example, one of the agency's functions is to '. . . make such regulations in relation to mammals, or any species or subspecies thereof, as it deems necessary to preserve, properly utilize, or maintain the best relative number of each such species or subspecies.' (Fish & G.Code, § 213.) If, as the commission urges, general exemptions from CEQA are already implied for those agencies having environmental responsibilities, then the new abbreviated alternative procedures would serve little purpose. The amendment makes no mention of extending CEQA to new areas, to which it would then apply. We must assume, therefore, that the Legislature intended to modify a preexisting duty, not to enact a statute that would have no or little effect.

Third, the requirements of CEQA as amended by section 21080.5 do not match the procedures mandated by the Fish and Game Code under which the commission functions. Of the five essential elements contained in the streamlined procedures of section 21080.5 above described, for example, only two are included in the Fish and Game Code, namely, public review and comment (Fish & G.Code, §§ 206, 211, 212, 213), and consultation with other public agencies (§§ 208, 211). There is no equivalent in the Fish and Game Code for written data, either in the form of an 'abbreviated environmental review' or a response to 'significant environmental points raised during the evaluation process.' (Pub.Resources Code, § 21080.5, subds. (b)(2)(iv), (b)(3)(i).) Nor does the Fish and Game Code require that the commission implement the alternative with the least 'adverse effect' on the environment. (Id., § 21080.5, subd. (b)(2) (i).)

CEQA and the Fish and Game Code not only lack coordination, but close scrutiny of their procedural differences reveals that these CEQA requirements serve very specific and important purposes. The EIR is most significant in this regard. One of its major functions, which is preserved in section 21080.5, is to ensure that all reasonable alternatives to proposed projects are thoroughly assessed by the responsible official. (Pub.Resources Code, §§ 21100, subds. (c)(d), 21080.5, subd. (b)(2); Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 263, fn. 8, 104 Cal.Rptr. 761, 502 P.2d 1049; People v. County of Kern (1974) 39 Cal.App.3d 830, 841--842, 115 Cal.Rptr. 67; Environmental Defense Fund, Inc. v. Coastside County Water Dist. (1972) 27 Cal.App.3d 695, 704--705, 104 Cal.Rptr. 197.) The Fish and Game Code provides no similar assurances that the commission will consider the options which are available to it in adopting its hunting regulations. The commission is not required to analyze alternatives to the proposed length of the hunting season or proposed 'bag limits,' compare their impacts on the bear population, or assess their practical effect on the recreational values associated with hunting. Similarly, procedures of the Fish and Game Code do not require the commission to respond in any manner to suggestions from interested citizens.

Another important function of the EIR is to provide information on which the work of an agency can be evaluated by the public and by the courts. (See County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810--811, 108 Cal.Rptr. 377; Environmental Defense Fund, Inc. v. Coastline County Water Dist., supra, 27 Cal.App.3d 695, at p. 705, 104 Cal.Rptr. 197.) Following issuance and filing of an EIR, judicial review may be invoked to determine whether or not the agency has abused its discretion. (Pub.Resources Code, § 21168.5.) CEQA renders easier the discovery of any such abuse by requiring the disclosure of certain specified environmental information, alternative proposals, and the reasons for accepting or rejecting recommendations or proposals made by the public. Again, no such requirement exists...

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