Opinion
A126402
12-28-2011
LEEON HILLMAN et al., Plaintiffs and Respondents, v. DEPARTMENT OF FISH AND GAME et al., Defendants; PUBLIC LANDS FOR THE PEOPLE, INC., et al., Interveners and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG09434444)
This is an appeal from a preliminary injunction in a taxpayer action directing the Department of Fish and Game (Department) to refrain from spending any general fund monies to issue suction dredge permits. The preliminary injunction effectively prohibits suction dredge mining, which is a technique for extracting gold from the beds of rivers and other waterways. The trial court concluded that the parties seeking the preliminary injunction demonstrated a likelihood of prevailing on claims that the Department's issuance of permits violates the Fish and Game Code and CEQA, the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). The trial court's determination hinges on its conclusion that each application for an annual suction dredge permit requires an exercise of discretion and therefore triggers CEQA review.
All statutory references are to the Fish and Game Code unless otherwise specified.
Because recently enacted legislation prohibits suction dredge mining in the near term and at least until environmental review is completed and new regulations are in place (§ 5653.1), there is no longer a threat of immediate irreparable harm justifying provisional relief in the form of a preliminary injunction. Accordingly, we shall reverse the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
Parties
The plaintiffs in the underlying action, and respondents herein, are a coalition of taxpayers representing tribal, environmental, and fishing interests (hereinafter referred to as plaintiffs) who oppose suction dredge mining as authorized under existing regulations on the ground it causes harm to the environment. The defendants in the action below are the Department and its director (hereinafter referred to collectively as the Department). The appellants in this appeal, who are interveners below, are Public Lands for the People, Inc., a nationwide organization of miners and prospectors, and its founder and president, Gerald Hobbs (hereinafter referred to collectively as PLP).
Suction Dredge Mining
Suction dredging is a method of mining for gold deposits in the beds of rivers, streams, and lakes. Suction dredges use motorized pumps to vacuum water and sediment into an intake pipe and pass it over a sluice box mounted on a floating barge. Dense particles, including gold, are trapped in the sluice box. The remainder of the vacuumed material is discharged into the waterway as "tailings" that can accumulate as piles of debris. (See generally Siskiyou Regional Educ. Project v. Rose (D. Or. 1997) 87 F.Supp.2d 1074, 1081-1082.) Plaintiffs characterize suction dredge mining as a hobby whereas PLP claims it is not merely a recreational activity for many of its members, who purportedly rely on the supplemental income it provides.
A person may not engage in suction dredge mining in any river, stream, or lake in California unless the Department has issued a suction dredge permit to that person. (§ 5653, subd. (a).) Permits are issued on an annual basis for a nominal fee and expire at the end of each calendar year. (Cal. Code Regs., tit. 14, § 228, subd. (a); § 5653, subd. (c).) In the past, the Department had typically issued over 3,000 suction dredge permits each year.
In motion papers presented to the trial court, plaintiffs stated the permit fee is $42.50 for state residents and $167.25 for nonresidents. (See § 5653, subd. (c) [permit fees are $25 and $130 for residents and nonresidents, respectively, adjusted for inflation under section 713].)
1994 EIR and Regulations Following Legislative Amendments
Section 5653 governs the use of suction dredge equipment and requires persons operating such equipment to possess a valid permit. Section 5653.9 authorizes the Department to adopt regulations to carry out the statutes governing suction dredging, including section 5653.
Before 1994, the suction dredging statutory scheme permitted but did not require the Department to designate when, where, and how suction dredging could take place. (Former § 5653, as amended by Stats. 1988, ch. 1037, § 1; former § 5653.9, added by Stats. 1988, ch. 1037, § 5.) Under former section 5653, a permit was required for suction dredging, and the Department was obligated to issue a permit if it "determine[d] that the operation will not be deleterious to fish." (Former § 5653, as amended by Stats. 1988, ch. 1037.) However, the Department was not required to adopt regulations governing the permitting process. (Former § 5653.9, added by Stats. 1988, ch. 1037, § 5.)
Sections 5653 and 5653.9 were amended in 1994 to require the Department to adopt regulations governing the permitting and operation of suction dredges. (Stats. 1994, ch. 775, §1.) Section 5653.9 was amended to provide that the Department "shall" adopt regulations to carry out section 5653 in accordance with the requirements of CEQA (Pub. Resources Code, § 21000 et seq.) and Government Code section 11340 et seq. (Administrative Procedures Act or APA). In addition, section 5653 was amended to clarify that suction dredging is prohibited except as authorized under a permit issued in compliance with regulations adopted under section 5653.9. (Compare § 5653, subd. (a), with former § 5653, subd. (a), as amended by Stats. 1988, ch. 1037.) The statute was further amended to provide that the Department's issuance of a permit upon a determination that a proposed operation will not be deleterious to fish is governed by the regulations adopted pursuant to section 5653.9. (Compare § 5653, subd. (b), with former § 5653, subd. (b), as amended by Stats. 1988, ch. 1037.) Thus, among other things, the 1994 amendments required the Department to adopt suction dredge regulations in compliance with the APA and CEQA, and they provided that the Department's determination of whether an operation "will not be deleterious to fish" was to be governed by the newly mandated regulations.
The Department conducted an environmental review pursuant to CEQA, resulting in the approval of an environmental impact report (EIR) in 1994. The Department also promulgated regulations in 1994 governing the issuance of suction dredge permits and specifying waterways where suction dredging was allowed with a permit, the maximum size of dredges that could be used, and the times of year when specified dredges could be used. (Cal. Code Regs., tit. 14, §§ 228, 228.5.)
2005 CEQA Action and 2006 Consent Judgment
In May 2005, the Karuk tribe and its chairman brought an action against the Department and its director alleging that the Department's outdated suction dredge mining regulations violated CEQA as well as section 5653. The complaint focused on certain parts of the Klamath, Scott, and Salmon River watersheds. The Karuk tribe alleged that the 1994 EIR anticipated the Department would periodically review its regulations to address impacts on fish that had been listed as endangered or threatened since 1994. No such review had taken place, according to the tribe. Suction dredge mining interests, including the founder and president of PLP, intervened in the action.
On December 20, 2006, the court entered a consent judgment (2006 consent judgment) in the action initiated by the Karuk tribe. According to the 2006 consent judgment, new information had "become available relating to the effect of suction dredge mining on Coho [s]almon, which was not reasonably available to the Department at the time it completed the 1994 EIR on the suction dredge mining regulations . . . ." The court found that this new information provided evidence that the issuance of permits under the current regulations "could result in environmental effects different or more severe than the environmental impact considered in the 1994 EIR on the Coho salmon, and/or other fish listed as endangered or threatened after the completion of the 1994 EIR." The 2006 consent judgment directed the Department "to conduct a further environmental review pursuant to CEQA of its suction dredge mining regulations and to implement, if necessary, via rulemaking, mitigation measures to protect the Coho salmon and/or other special status fish species in the watershed of the Klamath, Scott, and Salmon Rivers, listed as threatened or endangered after the 1994 EIR." The environmental review and rulemaking were to be completed within 18 months, or by June 20, 2008.
The Department was unable to complete the required review within the 18-month time frame. The Department contended it was prohibited under CEQA from conducting a review limited to one geographic region. Instead, it sought to conduct a statewide environmental review that would require major revisions to the 1994 EIR. It also claimed the state financial crisis prevented it from securing funding to complete a statewide review. Nevertheless, the Department continued to issue suction dredge permits, reasoning that it was required to do so under section 5653 even while the process to update the 1994 EIR and regulations was ongoing.
Current Lawsuit — Taxpayer Action
Plaintiffs filed the action giving rise to this appeal in February 2009. In the operative first amended complaint, the plaintiffs include persons affiliated with the Karuk tribe, a fisherman, and organizations representing fishing and environmental interests. The complaint is styled as a taxpayer action brought under Code of Civil Procedure section 526a, which affords a taxpayer standing to maintain an action seeking to prevent an illegal expenditure of public money. (Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 29.) The complaint contains a single cause of action against the Department alleging that the expenditure of money from its general fund to issue permits and operate its suction dredge mining program constitutes an illegal expenditure. Parties representing mining interests, including PLP, New 49'ers, Inc., and Raymond Koons, were granted leave to intervene in the taxpayer action.
Plaintiffs allege the suction dredge mining program operated by the Department is illegal because it violates (1) the 2006 consent judgment, (2) CEQA, and (3) sections 5653 and 5653.9 of the Fish and Game Code. The complaint seeks provisional and permanent injunctive relief prohibiting the expenditure of public funds on the issuance of permits or the operation of the suction dredge mining program under the Department's current regulations until (1) the Department conducts a supplemental or subsequent environmental review pursuant to CEQA, (2) the Department mitigates any adverse environmental impacts through a formal rulemaking pursuant to the APA, and (3) any new regulations that may result from the rulemaking process are adopted and any challenges to such regulations are resolved.
Preliminary Injunction
Plaintiffs sought a preliminary injunction preventing the Department from spending public monies on any activity allowing suction dredge mining under the current regulations until the matter can be heard on the merits. Plaintiffs claimed they were likely to prevail on the merits because the Department had made judicial admissions in the 2005 CEQA case that constituted strong evidence the Department was in violation of CEQA as well as sections 5653 and 5653.9 by continuing to allow suction dredge mining under its current regulations. Plaintiffs contended that substantial interim harm would result to the environment in the absence of a preliminary injunction. Among other things, plaintiffs offered evidence that suction dredge mining eliminates fish spawning habitat by removing gravel beds, impacts Coho salmon at all life stages, harms other species on state and federal endangered species lists, and introduces methylmercury into rivers. Plaintiffs claimed the balance of harm tipped strongly in favor of the environment because miners have viable alternatives to extract gold from waterways, such as panning and using non-hydraulic sluices.
The Department as well as the interveners, who represent mining interests, opposed the preliminary injunction. The Department claimed plaintiffs could not succeed in a taxpayer action because the suction dredge permitting program is not directly supported by general fund revenues. It also argued that there is nothing unlawful about issuing permits under current regulations simply because further environmental review is required under CEQA or because further rulemaking may be required under the APA to bring the permitting program into compliance with the Fish and Game Code.
The interveners opposed the preliminary injunction on the following grounds: an order prohibiting suction dredge mining is preempted by federal law allowing mining on federal lands, plaintiffs lack standing as taxpayers, preliminary injunctive relief is unavailable in a taxpayer action, noncompliance with CEQA does not make a program "illegal," plaintiffs failed to establish a violation of the Fish and Game Code, plaintiffs' unclean hands militates against awarding equitable relief, suction dredge mining is not harmful to fish or the environment, and miners would be irreparably harmed by an order prohibiting suction dredge mining.
On July 10, 2009, the trial court issued a preliminary injunction ordering the Department to cease and desist from spending any funds obtained from the state's general fund to issue suction dredge permits pursuant to section 5653 and the existing regulations governing suction dredge mining, sections 228 and 228.5 of title 14 of the California Code of Regulations. Following the issuance of the order, the Department took the position that the preliminary injunction did not preclude the issuance of permits, which were supported primarily by permit fees and not monies from the general fund. Plaintiffs sought clarification of the order to confirm that it enjoins the Department from issuing suction dredge permits. At a further hearing held on July 29, 2009, the court did not issue a formal ruling clarifying the order but plainly indicated that the Department's interpretation of the order was much too narrow, agreeing with plaintiffs' counsel that general fund monies necessarily supported the permit program through things such as rent for the space used to administer the program. The Department agreed to comply with the court's direction and, according to plaintiffs, stopped issuing suction dredge permits thereafter.
In its written order granting the preliminary injunction, the trial court found that plaintiffs were likely to succeed on the merits of two out of three of their claims that the Department was violating the law by issuing suction dredge permits. The court rejected the claim that the Department's activities were unlawful as a result of violating the 2006 consent judgment, reasoning that a failure to comply with a judgment does not transmute the expenditure of public funds on related derivative matters into an illegal act.
The court agreed with plaintiffs that the continued issuance of suction dredge permits violated the Fish and Game Code. The court's approach to the issue was different from the one advocated by plaintiffs, who had argued that the Department's admission that suction dredging was deleterious to Coho salmon necessarily meant that the Department was issuing permits in violation of the statute. The court instead took the position that section 5653 requires the Department to make a separate, discretionary determination with respect to each permit that the proposed operation will not be deleterious to fish. The court reasoned that, because the governing regulations did not require such a discretionary determination, the Department's issuance of permits was in direct violation of a mandatory duty imposed by section 5653.
The court also concluded that the continued issuance of permits violated CEQA. It reasoned that each permit application "involves a discretionary approval triggering a CEQA review." Relying on the doctrine that a project may not be implemented until the CEQA process has been satisfied, the court stated it is an unlawful act to make a discretionary approval—i.e., issue a permit—unless the decision is subjected to the mandated CEQA process. In addition, the court stated that further environmental review is mandated by CEQA before any further discretionary acts—i.e., permits— may be approved.
In addressing the balance of the harms, the court stated that the preponderance of the evidence supports the conclusion that suction dredging causes irreparable harm to endangered Coho salmon. The court rejected the interveners' claims that a prohibition on suction dredging will cause economic harm to miners and others. According to the court, there was no evidentiary showing to support the claims.
PLP filed a timely notice of appeal from the preliminary injunction. The other mining interest interveners did not appeal and have not made an appearance in this appeal. In addition, the Department did not appeal, although it did appear in this appeal by way of filing a letter brief responding to assertions contained in the respondent's brief submitted by plaintiffs.
Subsequent Legislation Prohibiting Suction Dredging
On August 5, 2009, less than a month after the court issued its preliminary injunction, the Governor signed Senate Bill No. 670 as an emergency measure that became effective the following day. Codified as section 5653.1, the measure prohibits suction dredge mining until the director of the Department certifies that all of the following have occurred: the environmental review ordered by the 2006 consent judgment is completed, new suction dredge regulations are adopted, as necessary, and any such new regulations are operative. (§ 5653.1, subd. (b), as added by Stats. 2009, ch. 62, § 1.) The legislation further specifies that the "issuance of permits to operate vacuum or suction dredge equipment" is a project pursuant to CEQA and that permits may only be issued after the certification of an EIR for the project pursuant to the 2006 consent judgment. (§ 5653.1, subd. (a), as added by Stats. 2009, ch. 62, § 1.) The prohibition does not apply to nonmotorized mining activities, such as panning. (§ 5653.1, subd. (c).)
PLP and others filed a lawsuit in the United States District Court for the Eastern District of California seeking to invalidate Senate Bill No. 670 on various grounds. The federal district court granted a motion to dismiss the lawsuit. At plaintiffs' request, we take judicial notice of the order dated March 3, 2010, in case number 2:09-cv-02566-MCE-EFB granting the motion to dismiss the federal court challenge to Senate Bill No. 670. (Evid. Code, §§ 452, subd. (d)(2), 459.)
Section 5653.1 was further amended effective July 26, 2011. (Stats. 2011, ch. 133, § 6.) As amended, the statute provides that the prohibition on suction dredge mining will remain in place until the earlier of either June 30, 2016, or until the Department's director certifies that CEQA review required under the 2006 consent judgment is completed, that any new regulations are operative, that any new regulations "fully mitigate all identified significant environmental impacts," and that a fee structure is in place that fully covers the cost of suction dredge mining program. (§ 5653.1, subd. (b).) Thus, the 2011 amendments require the Department to do more before the prohibition is lifted but also place an outside limit on the duration of the prohibition.
DISCUSSION
1. Nature of Preliminary Injunction and Standard of Review
The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action. (White v. Davis (2003) 30 Cal.4th 528, 554; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) "At this initial stage in the proceeding, the scope of our inquiry is narrow. We review an order granting a preliminary injunction under an abuse of discretion standard. [Citations.] Review is confined, in other words, to a consideration whether the trial court abused its discretion in ' "evaluat[ing] two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued." ' [Citation.] And although we will not ordinarily disturb the trial court's ruling absent a showing of abuse, an order granting or denying interlocutory relief reflects nothing more than the superior court's evaluation of the controversy on the record before it at the time of its ruling; it is not an adjudication of the ultimate merits of the dispute. [Citations.]" (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.)
Although the trial court is vested with discretion to consider the two interrelated factors bearing upon the issuance of a preliminary injunction, "before the trial court can exercise its discretion the applicant must make a prima facie showing of entitlement to injunctive relief. The applicant must demonstrate a real threat of immediate and irreparable injury [citations] . . . ." (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422.)
2. Absence of Imminent Threatened Harm
In the time that has passed since the trial court issued the preliminary injunction, the legal landscape has changed significantly. Specifically, a statute now prohibits suction dredge mining pending the completion of the environmental review ordered by the 2006 consent judgment. (§ 5653.1, subd. (a).) The statute further provides that suction dredging is prohibited until the earlier of either June 30, 2016, or until director of the Department certifies that any new regulations are operative and fully mitigate all identified significant environmental impacts. (§ 5653.1, subd. (a).)
The statutory prohibition renders the preliminary injunction superfluous. Section 5653.1 effectively affords plaintiffs the relief they sought in their complaint. As a result, it would serve little purpose for this court to assess whether the court abused its discretion in granting a preliminary injunction that now serves little purpose. Regardless of how we might rule, the statutory prohibition against suction dredge mining will continue to exist until at least 2016, or until the concerns raised by plaintiffs have been satisfied by the completion of further environmental review and the adoption of new regulations. Thus, our consideration of the issues raised on appeal would amount to little more than an advisory opinion as to whether the trial court abused its discretion in granting a preliminary injunction based upon the record before it, a record that has now been superseded by a change in the law.
Ordinarily, in cases where we cannot grant effective relief to the parties, we will dismiss the appeal as moot. (See Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10-11.) However, a dismissal would have the effect of affirming the preliminary injunction in this case. (See City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 492.)
Under the circumstances presented here, the better course of action is to dissolve the preliminary injunction, which is no longer necessary to maintain the status quo pending a determination on the merits. We are mindful of the fact that section 5653.1 may permit the Department to issue permits for suction dredge mining after June 30, 2016, even if new regulations are not in effect at that time. (§ 5653.1, subd. (b).) However, the speculative potential for harm that may occur, if at all, more than four years in the future is insufficient to justify a preliminary injunction that simply serves to preserve the status quo pending a determination on the merits. There is no reason to believe that a determination on the merits of this dispute cannot be reached before 2016.
As noted above, before a court may exercise its discretion to issue a preliminary injunction, an applicant must make a prima facie showing that there is a real threat of immediate, irreparable injury. (Choice-in-Education League v. Los Angeles Unified School Dist., supra, 17 Cal.App.4th 415, 422.) We accept plaintiffs' contention that there is no adequate remedy at law for the asserted harm that suction dredge mining may inflict upon the environment. However, to support a preliminary injunction, the threat of irreparable harm must be imminent as opposed to a mere possibility of harm at some time in the future. (See Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) " 'An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future.' " (Ibid.)
Here, as a matter of law, the enactment of section 5653.1 precludes plaintiffs from making the threshold showing of imminent threatened harm necessary to support a discretionary decision to issue a preliminary injunction. It is unnecessary for us to consider the trial court's discretionary determination in light of this conclusion. Further, although we ordinarily limit our review to matters that were before the trial court at the time of the decision challenged on appeal, we may consider postjudgment legislative changes that bear directly upon the basis for granting relief. (Cf. Reserve Ins. Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; but see Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 , fn. 3.) Section 5653.1 fundamentally changes the analysis of interim harm. To clarify, we do not suggest the trial court abused its discretion in weighing the interrelated factors consisting of the probability of success on the merits and the balance of harms. Rather, we conclude that the postjudgment adoption of section 5653.1, which eliminates the imminent threat of irreparable harm, renders it unnecessary to consider those factors.
Pending our review of the merits of the appeal, we deferred consideration of a number of requests for judicial notice, a motion to strike a portion of a brief, and a request to take additional evidence on appeal. In light of our analysis and disposition of this appeal, we now deny the various requests and motions that were deferred pending further review, except as specifically set forth elsewhere in this opinion.
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DISPOSITION
The order granting plaintiffs' motion for a preliminary injunction is reversed. Each party shall bear its own costs on appeal.
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McGuiness, P.J.
We concur:
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Pollak, J.
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Jenkins, J.