PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS, Plaintiff and Appellant, v. EDMUND G. BROWN, JR., as Governor, etc., et al., Defendants and Respondents; NP FRESNO LAND ACQUISITIONS LLC, Real Party in Interest and Respondent.
No. C074506
Third Dist.
Sept. 24, 2014.
229 Cal. App. 4th 1416
Akin, Gump, Strauss, Hauer & Feld, Carlyle W. Hall, Jr., Andrew Scully Oelz and Amit Kurlekar for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Sara J. Drake, Assistant Attorney General, William P. Torngren and Timothy M. Muscat, Deputy Attorneys General, for Defendant and Respondent Governor Edmund G. Brown, Jr.
J. Brent Richardson, City Attorney, for Defendant and Respondent City of Madera.
Kamala D. Harris, Attorney General, Randy L. Barrow and Deborah L. Barnes, Deputy Attorneys General, for Defendant and Respondent California Department of Fish and Wildlife.
Ronald W. Beals, Jeanne Scherer, David H. McCray and Brandon S. Walker for Defendant and Respondent California Department of Transportation.
Douglas W. Nelson, County Counsel, and Robert D. Gabriele, Assistant County Counsel, for Defendant and Respondent County of Madera.
Cox, Castle & Nicholson, Andrew B. Sabey and Linda C. Klein for Real Party in Interest and Respondent.
ROBIE, J.—Is the Governor of California a “public agency” subject to the requirements of the California Environmental Quality Act (CEQA;
FACTUAL AND PROCEDURAL BACKGROUND
For our purposes, the relevant facts—which are drawn from the allegations in the first amended petition for writ of mandate and complaint—may be stated as follows:
Plaintiff Picayune Rancheria of Chukchansi Indians (the Picayune Tribe) owns and operates a resort and casino on its rancheria lands in Madera County. In 2005, another tribe—the North Fork Rancheria of Mono Indians (the North Fork Tribe)—submitted a request to the United States Department of the Interior asking the department to acquire approximately 305 acres of land in Madera County adjacent to State Route 99 so the North Fork Tribe could develop its own resort and casino there. (See
Under the Indian Gaming Regulatory Act, casino gaming on lands acquired for a tribe by the Secretary of the Interior after October 17, 1988, is generally prohibited, subject to certain exceptions. (See
Meanwhile, in November 2012, the Picayune Tribe commenced the present proceeding by filing a petition for writ of mandate and complaint for injunctive relief against the Governor and others.2 As relevant here, the Picayune Tribe asserted that Governor Brown‘s concurrence in the two-part determination constituted an “approval” of a “project” under CEQA that “must be the subject of the CEQA environmental review process.” The Picayune Tribe sought a writ of mandate ordering the Governor to set aside his concurrence and comply with CEQA before making any further decisions regarding the proposed casino. The Picayune Tribe also sought an injunction prohibiting the remaining defendants from approving any activities related to the proposed casino until the project had been subject to legally sufficient CEQA review.
All of the defendants and the real party in interest demurred. Among other things, the Governor and the real party in interest argued that as a matter of law the Governor is not a “public agency” for CEQA purposes and therefore his concurrence in the two-part determination was not subject to CEQA. The trial court agreed. Accordingly, the court sustained the demurrers without leave to amend and entered a judgment of dismissal. The Picayune Tribe timely appealed.
“In order to ‘[e]nsure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions’ ([CEQA],
As the foregoing Supreme Court passage suggests, by its terms CEQA specifically applies “to discretionary projects proposed to be carried out or approved by public agencies.” (
The proper interpretation of a statute is a question of law that we determine independently of the trial court. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) “In construing a statute, “‘we strive to ascertain and effectuate the Legislature‘s intent.’ [Citations.] Because statutory language ‘generally provide[s] the most reliable indicator’ of that intent [citations], we turn to the words themselves, giving them their ‘usual and ordinary meanings’ and construing them in context . . . .” [Citation.] “If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs.” [Citation.] If, however, the statutory language is susceptible of more than one reasonable construction, we can look to legislative history [citation] and to rules or maxims of construction [citation]. “. . . The court may [also] consider the impact of an interpretation on public policy, for ‘where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.’ ” ” (In re Dannenberg (2005) 34 Cal.4th 1061, 1081-1082.)
With respect to CEQA in particular, our Supreme Court stated long ago that CEQA must “be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 (Friends of Mammoth).) More than 20 years after Friends of Mammoth, however, the Legislature
With these principles in mind, we turn to the arguments of the parties. Both the Governor and the real party in interest point out that the Governor is not explicitly included in CEQA‘s definition of the term “public agency.” As the Picayune Tribe points out, however, CEQA section 21063 “does not purport to be an exclusive list” (italics omitted) because the definition in that statute begins with the word “includes,” which is “ordinarily a term of enlargement rather than limitation.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101.) While that is undoubtedly true, “the principle of ejusdem generis provides that ‘when a statute contains a list or catalogue of items, a court should determine the meaning of each by reference to the others, giving preference to an interpretation that uniformly treats items similar in nature and scope.’ ” (Ibid.) That principle may be of no assistance when, as in Ornelas, “[t]he examples included in [the statute] do not appear to share any unifying trait . . .” (ibid.), but that is not the case here. The specific examples included in CEQA section 21063 are all, in common parlance, governmental bodies, rather than governmental officials like the Governor. (See
The Picayune Tribe asserts that construing the term “public agency” to exclude the Governor ignores the fact that, as our Supreme Court has said, “[t]he purpose of CEQA is to compel government at all levels to make decisions with environmental consequences in mind.” (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283, italics added.) We are not persuaded. It is true CEQA provides that it is the policy of the state to “[r]equire governmental agencies at all levels to develop standards and procedures necessary to protect environmental quality.” (
The Picayune Tribe suggests that the answer to this question does not really matter because the tribe did not sue Governor Brown in his individual capacity but instead sued him in his capacity as the Governor of the State of California. As the tribe puts it, the tribe “did not sue an individual qua individual—it sued the Governor as the head of the Office of the Governor, which is indisputably a ‘political subdivision’ of the State of California.” In support of this latter assertion, the Picayune Tribe cites only the fact that “Governor, Office of the” is listed on the directory of “state agencies” on the state‘s Web site (www.ca.gov).
Whatever other appellate courts may have made of other government Web sites in other circumstances (see, e.g., Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 606 & fn. 10; Moehring v. Thomas (2005) 126 Cal.App.4th 1515, 1524 & fn. 5), we do not find the listing of the Office of the Governor in a list of state agencies on the state‘s Web site persuasive in determining whether the Legislature intended to encompass the Governor in the term “public agency” when the Legislature added the definition of that term to CEQA in 1972. (See Stats. 1972, ch. 1154, § 1, p. 2271.) The Picayune Tribe offers no evidence regarding who compiled the list on the Web site and indeed offers us no reason to treat the Web site as indicative of what the intent of the Legislature was in 1972 when the Legislature defined the term “public agency” by reference to various public bodies, without mentioning any public officials or other individuals.
In other statutory contexts, the Legislature has specifically defined the term “state agency” to include individual state officers and offices. (E.g.,
Moreover, notwithstanding the Picayune Tribe‘s contention to the contrary, the tribe did not sue a government office in this case; the tribe sued an individual—Edmund G. Brown, Jr. True, the tribe sued that individual in his capacity as the Governor of California, but even in that capacity he is still an individual. He is not an “office“; he is a person—the chief executive officer of the state. (See Black‘s Law Dict. (5th ed. 1979) p. 627, col. 2 [defining “Governor” as “[t]he chief executive official of a state in the United States“];
Furthermore, it would do no good for the Picayune Tribe to “amend[] [its] petition [to] either specify[] that [the tribe] is suing Governor Brown as head of the Office of the Governor, or replac[e] the Governor as a party altogether with the Office of the Governor,” as it suggests it could do. It is true the governorship is an office, and the office of the Governor is sometimes explicitly referred to in the law. (E.g.,
In a further attempt to answer that question in the affirmative, the Picayune Tribe relies on Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959 (Arcata), arguing that the tribe‘s “naming of the Governor here is no different from the naming of Lewis A. Moran, an individual sued under CEQA in his official capacity as head of the Division of State Forestry” in that case.3 The flaw in that argument is this: In Arcata, in determining that CEQA applied to timber harvesting activities that were subject to “official authorization” (id. at p. 967), the appellate court first observed that CEQA applied to all ” ’state agencies’ ” and then specifically noted that it was “undisputed that the Division of State Forestry headed by the state forester is a state agency” (id. at p. 965). Thus, the court concluded that CEQA applied to timber harvesting activities because the Division of State Forestry was a state agency to which CEQA explicitly applies, not because the state forester was a state agency. The fact that the plaintiffs sued the head of the agency rather than the agency itself does not alter the conclusion that it was the governmental body, the Division of State Forestry, rather than the governmental officer who headed that body, the state forester, that qualified as a state agency for purposes of CEQA.
The Picayune Tribe contends the Governor “must . . . be a public agency based on the canon of construction against surplusage.” In support of this argument, the tribe points to Government Code section 12012.25, subdivision (g), which provides that “[i]n deference to tribal sovereignty, neither the execution of a tribal-state gaming compact nor the on-reservation impacts of compliance with the terms of a tribal-state gaming compact shall be deemed to constitute a project for purposes of” CEQA. The tribe points out that it is the Governor who “negotiates and executes compacts with tribes.” (See
Government Code section 12012.25 is one of a number of statutes by which the Legislature has ratified either tribal-state compacts the Governor
Since 1998, the Legislature has enacted a number of additional compact ratification statutes. (See
“(b)(1) In deference to tribal sovereignty, none of the following shall be deemed a project for purposes of [
CEQA ]:“(A) The execution of an amendment to the tribal-state gaming compacts ratified by this section.
“(B) The execution of the tribal-state gaming compacts ratified by this section.
“(C) The execution of an intergovernmental agreement between a tribe and a county or city government negotiated pursuant to the express authority of, or as expressly referenced in, the tribal-state gaming compacts ratified by this section.
“(D) The execution of an intergovernmental agreement between a tribe and the Department of Transportation negotiated pursuant to the express authority of, or as expressly referenced in, the tribal-state gaming compacts ratified by this section.
“(E) The on-reservation impacts of compliance with the terms of the tribal-state gaming compacts ratified by this section.
“(F) The sale of compact assets, as defined in subdivision (a) of Section 63048.6, or the creation of the special purpose trust established pursuant to Section 63048.65.”
With this statutory background in mind, we turn back to the Picayune Tribe‘s argument based on “the canon of construction against surplusage.” Under that rule, ” ‘[i]f possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose’ ” and ” ‘a construction making some words surplusage is to be avoided.’ ” (Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230; see
The real party in interest contends that the Picayune Tribe “misapplies that canon of statutory interpretation by combining two different statutes, the Government Code and the Public Resources Code.” But “[t]here is a well-recognized rule of statutory construction that the codes blend into each other, and are to be regarded as constituting but a single statute.” (Proctor v. Justice‘s Court (1930) 209 Cal. 39, 43.) “One should seek to consider the statutes not as antagonistic laws but as parts of the whole system which must be harmonized and effect given to every section [citations]. Accordingly, statutes which are in pari materia should be read together and harmonized if possible.” (Arcata, supra, 59 Cal.App.3d at p. 965; see Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 50 [“statutes relating to the same subject matter” are in pari materia].) Thus, just like the appellate court in Arcata harmonized CEQA and the Z‘berg-Nejedly Forest Practice Act of 1973 (
In the view of the Picayune Tribe, the only way these statutes can be harmonized is by concluding that the Governor qualifies as a “public agency” under the definition of that term in CEQA, because otherwise there would
Furthermore, even if the exemptions can be understood as excusing both the tribes and the Governor from complying with CEQA prior to executing a tribal-state gaming compact, these exemptions do not compel the conclusion that the Legislature intended to encompass the Governor within the term “public agency” when the Legislature added the definition of that term to CEQA in 1972, or even that the Legislature in 1998 and thereafter (when the various compact ratification statutes were enacted) necessarily believed that was the intended scope of CEQA section 21063. This is so because, if nothing else, the inclusion of these exemption provisions in the compact ratification statutes makes certain that no one can credibly argue that the Governor or the tribes or any other public entity has to comply with CEQA
To the extent the Picayune Tribe contends its broad interpretation of the term “public agency” is compelled by our Supreme Court‘s determination in Friends of Mammoth that CEQA must “be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language” (Friends of Mammoth, supra, 8 Cal.3d at p. 259), we believe the explicit approach to the interpretation of CEQA mandated by CEQA section 21083.1 defeats that contention. Under that approach, to the extent a party like the Picayune Tribe advances an interpretation of CEQA that is beyond the explicit terms of the act and that imposes requirements not otherwise compelled by the face of the act, we are constrained to reject that interpretation, even if accepting it would arguably afford greater protection to the environment, as long as we otherwise construe the statute consistent with generally accepted rules of statutory interpretation.
Such is the case here. CEQA section 21063 does not explicitly include the Governor in the definition of “public agency,” nor are any of the specific terms contained in that section suggestive of a government official, as opposed to a government body. As we have observed already, in other contexts the Legislature has specifically defined the term “state agency” to include state offices and officers. Its decision not to do so here must be treated as indicative of an intent to exclude such individuals from the scope of the term “public agency” as used in CEQA. (See
DISPOSITION
The judgment is affirmed. Defendants and real party in interest shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
Blease, Acting P. J., and Duarte, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied January 14, 2015, S222393.