Opinion
A120874
12-31-2008
CALIFORNIANS FOR ALTERNATIVES TO TOXICS, a nonprofit California corporation, Plaintiff and Appellant, v. DEPARTMENT OF AGRICULTURE COUNTY OF HUMBOLDT, Defendant and Respondent.
Not to be Published in Official Reports
Plaintiff Californians for Alternative Toxics (CATs) appeals from a judgment of dismissal entered after the trial court sustained a demurrer based on CATss failure to exhaust its administrative remedies against defendant Department of Agriculture County of Humboldt (Department). We agree with the trial court that CATs failed to exhaust its administrative remedies. Accordingly, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
At the demurrer stage we assume the truth of the material facts properly pled in CATss petition for writ of mandate. (See Garcia v. Superior Court (1990) 50 Cal.3d 728, 732; Estrin v. Superior Court (1939) 14 Cal.2d 670, 672.) We may also take into account matters which can be judicially noticed. (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1379.)
CATss petition challenged the approval of the "Purple Loosestrife Project" by Department and by the California Department of Parks and Recreation (DPR). The project involves the use of toxic chemicals to remove Purple Loosestrife, an invasive aquatic plant, from a 25-mile stretch of the Eel River over the course of the next two to 10 years.
Department and DPR "each approved the [project] prior to July 10, 2007. . . ." The agencies did not conduct any environmental review of the project pursuant to the California Environmental Quality Act (CEQA). Neither did they solicit public comment. Department and DPR held an "invitation-only" meeting on July 10, 2007, and a public meeting on July 13, 2007, "for the purpose of announcing and soliciting support for their decisions and the project."
On August 13, 2007, Department issued a notice of exemption (NOE) claiming the project was categorically exempt from CEQA. The NOE stated the project was categorically exempt on two grounds: that the project (1) was an action by a regulatory agency "for protection of the environment as authorized by state or local ordinance to ensure the maintenance, restoration, enhancement or protection of the environment"; and (2) constituted "[m]inor public or private alterations in the condition of land, water and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes."
In 30 dense lines of single-spaced text, the NOE described the project, the danger posed by Purple Loosestrife, and the unfeasibility or prior failure of other, non-chemical methods of controlling the plant. The NOE provided detailed information.
The proposed use of an aquatically registered herbicide, Habitat, "offers the greatest potential for eliminating loosestrife from the river areas that are currently infested." Three environmental risk assessments "predicted no significant impacts to the environment" from the active ingredient of Habitat "when used according to the product label." Habitat would be "manually applied to individual Purple Loosestrife plants. No herbicides will be intentionally applied to water and all herbicide applications will follow herbicide label requirements."
Department had consulted with the California Department of Food and Agriculture, the California Department of Fish and Game, the U.S. Fish and Wildlife Service, and "North Coast Regional Water Quality." The herbicide had been successfully used on Purple Loosestrife in the past. Department would map the locations of treated Purple Loosestrife populations to determine the effectiveness of the herbicide and "to identify future treatment needs."
The NOE concluded that the project "benefits multiple resources including riparian ecosystem function, sensitive species, recreational users and other intrinsic values threatened by infestation from Purple Loosestrife." The NOE was signed by the Humboldt County Agricultural Commissioner.
Application of the herbicide commenced on August 14, 2007.
CATs received the NOE on August 15, 2007. On September 14, 2007, CATs filed its mandate petition, naming Department and DPR as defendants.
On October 15, 2007, Department demurred to the petition on the ground that CATs had failed to exhaust its administrative remedies because CATs did not appeal from the Departments determination of categorical exemption (i.e., the NOE) to the Humboldt County Board of Supervisors.
CATss case against DPR proceeded separately, and has resulted in another pending appeal. (Californians for Alternative to Toxics v. California Dept. of Parks & Recreation (A122280).)
Humboldt County Resolution 77-29 establishes guidelines and procedures for complying with CEQA by evaluating the environmental effects of projects. Section 202 of that resolution defines the "Lead Department" for any particular project. It is undisputed that Department is the "Lead Department" for the Purple Loosestrife Project.
Section 302 of the resolution requires the Lead Department to determine, inter alia, whether a given project is categorically exempt from CEQA and then "cause the appropriate environmental document(s) to be prepared." Section 303 makes the Lead Department responsible for the "adequacy, completeness, and accuracy" of all environmental documents.
Section 304 states that "[t]he determinations required to be made by the Lead Department by the preceding two sections [i.e., 302 and 303] shall be in writing, shall briefly explain the basis of the action, and shall be subscribed by the Department Head of the Lead Department."
The appeals procedure is set forth in Humboldt County Resolution 99-115. Section 501 of that resolution states, as here pertinent, that "[d]ecisions and findings of the Lead Department shall be final and binding unless appealed as provided herein. Any person may appeal a decision or finding made by a Lead Department with[in] ten (10) working days of the action. The appeal . . . shall state the action appealed from and shall state the reasons the appellant believes the action of the Lead Department is incorrect or erroneous."
Section 502 provides that the appeal shall be to the Board of Supervisors, which "shall serve as the appeals board for all CEQA determinations by the Lead Department."
The trial court sustained Departments demurrer on the basis of Public Resources Code section 21151, subdivision (c), which provides: "If a nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to [CEQA], that certification, approval, or determination may be appealed to the agencys elected decisionmaking body, if any."
All further statutory references are to the Public Resources Code unless otherwise indicated.
It is undisputed that the Department is not an elected body, the Board of Supervisors is an elected body, and CATs did not appeal to the Board of Supervisors.
Following its sustaining of the demurrer, the trial court entered a judgment of dismissal in favor of the Department.
II. DISCUSSION
The doctrine of exhaustion of administrative remedies bars judicial relief where a person or entity fails to take available administrative action or, having taken that action and becoming aggrieved by an administrative proceeding, fails to exhaust further available administrative remedies. (See Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 874.) "In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.)
CATs contends that it was not required to exhaust administrative remedies because there were no remedies available. CATs claims the Department never issued a written decision, in compliance with section 304 of Resolution 77-29 (section 304), explaining its determination of categorical exemption.
CATs argues that the NOE cannot be considered a section 304 written decision because the Departments decision was actually made prior to the issuance of the NOE. CATs takes the position that the decision was made "at an undetermined time, without notice or public involvement, and was not in writing as required by the County ordinance." Thus, CATs concludes, it had no remedy to exhaust.
We do not dispute that, generally speaking, an NOE issues after the decision that a project is categorically exempt. (See County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963.) But we do not agree that a sufficiently detailed NOE can never serve as a section 304 written decision. The NOE in this case explained the basis for the Departments action and was signed by the head of the Department. It was not simply a bare notification that the project was exempt, but included the considerable detail we set forth above.
We assume the Agricultural Commissioner is the head of the Agriculture Department. There is no argument to the contrary.
We also note that when decisions are reduced to writing, the word "decision" is used in two ways: there is the initial decision, made, for example, in an agency staff meeting; and there is the written decision itself, which publishes the initial decision to the public and whose filing triggers pertinent time periods for action. In this case, the NOE served as the section 304 written decision for purposes of the appeal period to the Board of Supervisors—not some indeterminate prior moment when it was first decided to exempt the project.
CATs relies on section 21177, subdivision (a), which prohibits the filing of judicial action when the alleged grounds for noncompliance with CEQA were not raised during the public comment period or at the public hearing prior to the approval of the project; and on subdivision (e), which eliminates that prerequisite when there was no public comment period or prior public hearing. CATs notes, correctly, that no public comment period or public hearing is required for a project which is categorically exempt. (See San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1385-1386.)
CATs relies on two cases which hold that section 21177, subdivision (e) excuses a duty to exhaust administrative remedies when there is no public comment or public hearing, such as when a project is categorically exempt. (Azusa Land Reclamation Co. v. Main San Gabrial Basin Watermaster (1997) 52 Cal.App.4th 1165, 1209-1211; see Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 702 (Santa Teresa).) But the exhaustion requirement of section 21177 involves the raising of the alleged grounds of CEQA noncompliance in an administrative proceeding prior to an agency determination. The statute does not apply to an appeal from a nonelected agency to a governing elected agency. In short, section 21151, subdivision (c) provides a different administrative remedy—and this imposes a different exhaustion requirement.
We note that Santa Teresa involved a situation where the project challengers had "no clearly defined administrative procedure . . . to resolve their concerns about the project as it was finally configured. . . ." (Santa Teresa, supra, 114 Cal.App.4th at p. 702.) That is clearly not the case here, because CATs had the remedy of appeal to the Board of Supervisors.
We also note there is authority that section 21177 is really a standing statute, not one involving exhaustion of administrative remedies. (See Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 588-591.) Interestingly, in that case the Court of Appeal found that the plaintiffs had standing, but had failed to exhaust all administrative remedies by failing to properly appeal from a Planning Commission to the Board of Supervisors—as allowed by the Placer County Code. (Id. at pp. 591-594.)
We thus conclude that the trial court correctly determined that CATs failed to exhaust its administrative remedy of appeal to the Board of Supervisors, as authorized by section 21151, subdivision (c).
CATs notes that the application of the herbicide had already started, and that the short statute of limitations for filing a legal action after the NOE issued could have led to simultaneous administrative and judicial proceedings. But this was a two- to 10-year project, and filing a timely legal action to avoid the statute of limitations would simply have led to the courts waiting until the administrative proceeding concluded. Moreover, we would assume that the statute of limitations set forth in section 21167, subdivision (d) would not commence until after the administrative proceedings had concluded.
III. DISPOSITION
The judgment of dismissal is affirmed.
We concur:
Margulies, J.
Flinn, J.