Petition for Writ of Certiorari — John Donnelly Sweeney, et al., Petitioners v. San Francisco Bay Conservation and Development Commission, et al.
Supreme Court briefNov 5, 2021
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Order in the Supreme Court of
California
(June 9, 2021) . . . . . . . . . . . . . . . . App. 1
Appendix B Order in the Supreme Court of
California
(June 9, 2021) . . . . . . . . . . . . . . . . App. 2
Appendix C Opinion in the Court of Appeal, First
District, Division 3, California
(April 4, 2021) . . . . . . . . . . . . . . . . App. 4
Appendix D Opinion in the Court of Appeal, First
District, Division 3, California
(March 18, 2021) . . . . . . . . . . . . . App. 42
Appendix E Statement of Decision on BCDC Order
in the Superior Court of the State of
California County of Solano
(December 27, 2017) . . . . . . . . . App. 122
Appendix F Statement of Decision on Cleanup and
Abatement Order in the Superior
Court of the State of California County
of Solano
(December 27, 2017) . . . . . . . . . App. 145
Appendix G S t a t e m e n t
of
Decision on
Administrative Civil Liability Order in
the Superior Court of the State of
California County of Solano
(December 27, 2017) . . . . . . . . . App. 167
ii
Appendix H Order of the California Regional
Water Quality Control Board San
Francisco Bay Region
(December 19, 2016) . . . . . . . . . App. 191
Appendix I Cease and Desist and Civil Penalty
Order of the San Francisco Bay
Conservation and Development
Commission
(November 18, 2016) . . . . . . . . . App. 263
Appendix J Cleanup and Abatement Order in the
State of California Regional Water
Quality Control Board San Francisco
Bay Region
(August 12, 2016) . . . . . . . . . . . App. 317
Appendix K Constitutional Provisions Involved
. . . . . . . . . . . . . . . . . . . . . . . . . . App. 364
App. 1
APPENDIX A
IN THE SUPREME COURT OF CALIFORNIA
En Banc
Court of Appeal, First Appellate District,
Division Three - No. A153582
8267896
[Filed: June 9, 2021]
_________________________________________
JOHN D. SWEENEY et al.,
)
Plaintiffs and Respondents,
)
)
v.
)
)
SAN FRANCISCO BAY
)
CONSERVATION AND
)
DEVELOPMENT COMMISSION et al.,
)
Defendants and Appellants.
)
_________________________________________ )
The request for judicial notice is granted.
The petition for review is denied.
CANTIL-SAKAUYE
Chief Justice
App. 2
APPENDIX B
IN THE SUPREME COURT OF CALIFORNIA
En Banc
Court of Appeal, First Appellate District,
Division Three - No. A153582, A153585
82678967
[Filed: June 9, 2021]
____________________________________________
JOHN D. SWEENEY et al.,
)
Plaintiffs and Respondents,
)
)
v.
)
)
CALIFORNIA REGIONAL WATER
)
QUALITY CONTROL BOARD,
)
SAN FRANCISCO BAY REGION et al.,
)
Defendants and Appellants.
)
)
JOHN D. SWEENEY et al.,
)
Plaintiffs, Cross-defendants, and Respondents, )
)
v.
)
)
SAN FRANCISCO BAY CONSERVATION
)
AND DEVELOPMENT COMMISSION et al., )
Defendants, Cross-complainants,
)
and Appellants
)
_____________________________________________)
App. 3
The request for judicial notice is granted.
The petition for review is denied.
CANTIL-SAKAUYE
Chief Justice
App. 4
APPENDIX C
Court of Appeal, First Appellate District,
Division Three, California
A153582
[Filed: February 18, 2021]
As Modified on Denial of Rehearing 3/18/2021
As Modified 4/14/2021
__________________________________________
JOHN D. SWEENEY et al.,
)
Plaintiffs and Respondents,
)
)
v.
)
)
SAN FRANCISCO BAY
)
CONSERVATION AND
)
DEVELOPMENT COMMISSION et al.,
)
Defendants and Appellants.
)
__________________________________________)
(Solano County Super. Ct. No. FCS048136)
Attorneys and Law Firms
John Briscoe, Lawrence S. Bazel, Briscoe Ivester &
Bazel LLP, 155 Sansome Street, 7th Floor, Suite 600,
San Francisco, CA 94104, for Plaintiff and Respondent.
Shari Beth Posner, Office of Attorney General, 1515
Clay Street, 20th Floor, P.O. Box 70550, Oakland, CA
94612-0550, for Defendant and Appellant.
App. 5
OPINION
Siggins, J.*
This is the first of three companion cases concerning
Point Buckler (the Site), a 39-acre tract located in the
Suisun Marsh, which John Sweeney purchased and
subsequently transferred to Point Buckler Club, LLC
(collectively Respondents).1 For months, Respondents
undertook various projects at the Site, converting it
from tidal marsh to a mostly dry island, and
subsequently marketed it as a kiteboarding
recreational area. In this case, the San Francisco Bay
Conservation and Development Commission (BCDC or
Commission) issued an order to Respondents, directing
them to cease and desist from placing fill within the
Site and from engaging in any development activities
without obtaining the necessary marsh development
permit. BCDC’s order assessed Respondents a civil
penalty of $772,000 for violations of the McAteer-Petris
Act and the Suisun Marsh Preservation Act.
Respondents successfully challenged BCDC’s order in
a writ proceeding which set it aside in its entirety. We
reverse.
*
Assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
1
The other two companion cases (A153583 & A153585) concern
actions taken against Respondents by the California Regional
Water Quality Control Board, San Francisco Bay Region. We
address the issues raised in those appeals in a separate decision
also filed today.
App. 6
BACKGROUND
San Francisco Bay’s wetlands “not only serve as
habitat for fish, fowl and a rich abundance of animal
wildlife but also enhance water quality by absorbing
and filtering pollutants, reduce the destructiveness of
floods by slowing their flow, increase water supply by
recharging aquifers, prevent seawater intrusion by
acting as a freshwater barrier, and control erosion by
preventing soil and silt from moving downstream
toward the ocean. The bay and delta, especially Suisun
Marsh, contain the state’s largest expanse of wetlands
and yet they constitute only a fraction of the
approximately 5 million acres that originally existed in
California. Some 450,000 acres remain in the state,
reflecting a loss of more than 90 percent, the greatest
decline of wetlands in the nation.” (Hundley, The Great
Thirst, Californians and Water: A History, University
of California Press, Revised Edition (2001) p. 399.)
The Site is an approximately 39-acre tract located in
Suisun Marsh at the south end of Grizzly Bay.
In response to broad public interest in the San
Francisco Bay as a unique and valuable resource, in
1965, the Legislature enacted the McAteer-Petris Act
(Gov. Code, § 66600–66694) in order “to create a
politically-responsible, democratic process by which the
San Francisco Bay and its shoreline can be analyzed,
planned, and regulated as a unit.” (Gov. Code, § 66600.)
The law created BCDC, a 27-member entity, with
jurisdiction over the waters of San Francisco Bay and
the surrounding shoreline, as well as portions of other
waterways and uplands, including the Suisun Marsh.
(Gov. Code, § 66620.) BCDC is empowered to issue or
App. 7
deny permits for any proposed project that involves
placing fill, extracting materials or making any
substantial change in use of any water, land or
structure within the area of BCDC’s jurisdiction. (Gov.
Code, §§ 66620, 66604.) BCDC also holds the power to
order a person to cease and desist when after a public
hearing it determines that a person has undertaken, or
is threatening to undertake, activities that require a
permit without securing one. (Gov. Code, § 66638.)
In 1977, the Legislature enacted the Suisun Marsh
Preservation Act (Preservation Act). (Pub. Resources
Code, §§ 29000–29612.) The Preservation Act protects
the valuable natural resources within the Marsh and
invests BCDC with the ultimate authority over its
implementation. (Pub. Resources Code, § 29000 et seq.;
see also Sustainability, Parks, Recycling & Wildlife
Legal Defense Fund v. San Francisco Bay Conservation
and Development Commission (2014) 226 Cal.App.4th
905, 915–916, 172 Cal.Rptr.3d 110 (Sustainability).)
Pursuant to the Preservation Act, BCDC adopted the
Suisun Marsh Protection Plan (Protection Plan). (Pub.
Resources Code, § 29113, subd. (a).) It also certified the
“local protection program,” which refers to “those
provisions of general or specific plans; ordinances;
zoning district maps; land use regulations, procedures,
or controls; or any other programs, procedures,
standards, or controls that are adopted, undertaken, or
carried out by local governments, districts, or the
Solano County Local Agency Formation Commission in
and adjacent to the marsh, are submitted by the county
to the commission ..., and meet the requirements of,
and implement, this division and the Suisun Marsh
App. 8
Protection Plan at the local level.” (Pub. Resources
Code, §§ 29111, 29400–29424.)
The local protection program has a general
management program prepared by the Suisun
Resource Conservation District and approved by
BCDC. (Pub. Resources Code, §§ 29401, subd. (d),
29412.5.) This local protection program includes an
individual water management program, or IMP, for
each managed wetland in private ownership within the
primary management area of the Marsh and specified
“all necessary development related to such
management.” (Pub. Resources Code, § 29412.5.) The
Site has an IMP—the Annie Mason Point Club IMP
(the Mason IMP)— that was certified by BCDC in 1984.
In 2011, Sweeney bought the Site. In the following
years, he undertook a number of unpermitted
construction and development projects there, which
included restoring the Site’s exterior levee which had
been breached in multiple places. These efforts largely
converted the property from tidal marsh to a mostly
dry island. In October 2014, Sweeney transferred title
to the Point Buckler Club, LLC (Point Buckler Club),
for which he was the manager and principal
shareholder. He also began operating the Site as a
private recreational area for kiteboarding.
In November 2014, BCDC staff was concerned about
unauthorized work at the Site and conducted a site
visit. During the visit, BCDC staff provided Sweeney
with the Mason IMP. Following the visit, BCDC staff
notified Sweeney in a January 30, 2015, letter of
several violations. Staff explained the regulatory
framework governing the Suisun Marsh and the Site.
App. 9
Based on available information, the history of the Site,
and the recent Site visit, BCDC staff observed that the
Site had never been managed in accordance with the
Mason IMP and had long ago reverted to a tidal marsh
due to neglect, abandonment, and/or the forces of
nature. Staff directed Sweeney to stop work and
informed him that a marsh development permit was
required prior to developing the Site. Staff also
conveyed that any work that could not be retroactively
approved through the permit process would likely need
to be removed and the Site restored to tidal marsh.
BCDC staff recommended that Sweeney restore the
Site, or apply for a marsh development permit.
Sweeney was also advised that potential future
enforcement could include cease and desist orders and
a civil penalty.
For several months, the parties exchanged
correspondence regarding their divergent views about
site conditions and the necessity for a permit. BCDC
staff continued to investigate and made additional Site
visits.2
2
Meanwhile, in July 2015, the Regional Water Quality Control
Board (Regional Board) began separate enforcement proceedings
against Respondents for alleged violations of the federal Clean
Water Act and the California Water Code (the Porter-Cologne
Water Quality Act). In September 2015, the Regional Board issued
a Cleanup and Abatement Order to Respondents, which was
eventually rescinded after Respondents filed a successful writ
petition to stay the order. In 2016, the Regional Board issued a
new Cleanup and Abatement Order and an Administrative Civil
Liability Order. Respondents successfully challenged both of those
orders in the superior court. The Regional Board’s appeal of those
decisions as to the 2016 Cleanup and Abatement Order and
Administrative Civil Liability Order is pending before this court
App. 10
In April 2016, BCDC’s Executive Director Lawrence
Goldzband issued Executive Director Cease and Desist
Order No. ECD2016.01 (Interim Cease and Desist
Order). The Interim Cease and Desist Order directed
Respondents to cease and desist from all unauthorized,
unpermitted activities at the Site.
The Interim Cease and Desist Order was followed in
May 2016 with a Violation Report/Complaint for the
Administrative Imposition of Civil Penalties, and
formal enforcement proceedings began against
Respondents. The Violation Report/Complaint alleged
numerous violations related to improperly placing fill
within the Site and developing it without proper
permits. It proposed a civil penalty of $952,000 for
more than two dozen separate violations of state law.
An enforcement hearing before BCDC’s Enforcement
Committee was held in October 2016, consisting of a
subset of commissioners appointed to assist BCDC in
carrying out its enforcement responsibilities. The
Enforcement Committee adopted the Executive
Director’s recommended enforcement decision but
reduced the proposed penalty to $772,000. A month
later, BCDC adopted without change the recommended
enforcement decision as approved by the Enforcement
Committee.
In November 2016, BCDC issued Cease and Desist and
Civil Penalty Order No. CDO 2016.02 (BCDC Order or
Order). BCDC made nearly 50 findings regarding the
Site and Respondents’ activities. It ordered
and decided today in Sweeney v. California Regional Water Quality
Control Board, Case Nos. A153583 & A153585.
App. 11
Respondents to cease and desist from placing any fill
within the Site, or making any substantial changes to
any part of the Site that was or had been subject to
tidal action before Sweeney’s unauthorized work.
Respondents were further ordered to refrain from
engaging in any development activity at the Site
without permits for any past, ongoing, or future work.
In addition, Respondents were directed to submit plans
to restore the Site and mitigate the impacts to
wetlands due to their unauthorized activities. They
were ordered to pay $772,000 in administrative
penalties.
In December 2016, Respondents petitioned under Code
of Civil Procedure section 1094.5 for a peremptory writ
of mandate to invalidate the BCDC Order. The trial
court granted the petition and set aside the Order.
BCDC and Goldzband now appeal.
DISCUSSION
I.
Standard of Review
Challenges to BCDC’s permitting decisions or cease
and desist orders are made by filing a “petition for a
writ of mandate in accordance with the provisions of
Section 1094.5 of the Code of Civil Procedure.” (Gov.
Code, § 66639 [allowing aggrieved party to file
mandamus petition with superior court to review a
BCDC order]; Pub. Resources Code, § 29602 [“Any
aggrieved person may seek judicial review of any
decision or action of [BCDC] by filing a petition for a
writ of mandate in accordance with the provisions of
Section 1094.5 of the Code of Civil Procedure...”].)
App. 12
Code of Civil Procedure section 1094.5, our state’s
administrative mandamus provision, provides the
procedure for judicial review of adjudicatory decisions
rendered by administrative agencies. (Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974)
11 Cal.3d 506, 514, 113 Cal.Rptr. 836, 522 P.2d 12.)
“The inquiry in such a case shall extend to the
questions whether the respondent has proceeded
without, or in excess of, jurisdiction; whether there was
a fair trial; and whether there was any prejudicial
abuse of discretion. Abuse of discretion is established
if the respondent has not proceeded in the manner
required by law, the order or decision is not supported
by the findings, or the findings are not supported by
the evidence.” (Code Civil. Proc., § 1094, subd. (b).)
“The scope of our review of a challenged permitting
decision is the same as that of the trial court.
[Citations.] [¶] An ‘agency’s findings and actions are
presumed to be supported by substantial evidence.
[Citations.] A person challenging an administrative
determination bears the burden of showing the
agency’s findings are not supported by substantial
evidence. [Citations.] When reviewing the agency’s
determination, the court examines the whole record
and considers all relevant evidence, including that
which detracts from the administrative decision.’
[Citation.] ‘ “Although this task involves some weighing
to fairly estimate the worth of the evidence, that
limited weighing does not constitute independent
review where the court substitutes its own findings and
inferences for that of the Commission. Rather, it is for
the Commission to weigh the preponderance of
conflicting evidence, as [the court] may reverse its
App. 13
decision only if, based on the evidence before it, a
reasonable person could not have reached the
conclusion reached by it.” ’ ” (Sustainability, supra, 226
Cal.App.4th at p. 916, 172 Cal.Rptr.3d 110.)
II.
Permit
Requirements
Preservation Act
under
the
The Preservation Act recognizes that Suisun Marsh
“represents a unique and irreplaceable resource” and
that “future residential, commercial, and industrial
developments could adversely affect the wildlife value
of the area.” So, “it is the policy of the state to preserve
and protect resources of this nature for the enjoyment
of the current and succeeding generations.” (Pub.
Resources Code, § 29002.)
Unless an exception applies, any person wishing to
perform or undertake any development3 in Suisun
Marsh must obtain a marsh development permit. (Pub.
Resources Code, § 29500.) Within Suisun Marsh’s
primary management area, such development permits
shall be obtained from BCDC. (Pub. Resources Code,
3
“Development” means “on land, or in or under water, the
placement or erection of any solid material or structure; discharge
or disposal of any dredged material or of any gaseous, liquid, solid,
or thermal waste; grading, removing, dredging, mining, or
extraction of any materials; change in the density or intensity of
use of land ..., and any other division of land including lot splits ...;
change in the intensity of use of water or in access thereto;
construction, reconstruction, demolition, or alteration of the size
of any structure, including any facility of any private, public, or
municipal utility; and the removal or harvesting of major
vegetation other than for agricultural purposes.” (Pub. Resources
Code, § 29114.)
App. 14
§ 29501.) BCDC issues the permit “if it finds that the
proposed development is consistent with the provisions
of the Preservation Act and the policies of the certified
local protection program.” (Pub. Resources Code,
§ 29501.)
Here, BCDC found Respondents performed work in
Suisun Marsh which required a marsh development
permit, which they failed to obtain. The trial court set
aside the BCDC Order because it found Respondents
were exempt from the marsh development permit
requirement based on the “repair exception” in Public
Resources Code section 29508, subdivision (b) (Section
29508(b)) and the exception for work consistent with a
site’s component of the local protection program in
Public Resources Code section 29501.5 (Section
29501.5). BCDC contends neither exception applies. We
agree.
A. Section 29508(b)
Section 29508(b) states: “[N]o marsh development
permit shall be required” for “Repair, replacement,
reconstruction, or maintenance that does not result in
an addition to, or enlargement or expansion of, the
object of such repair, replacement, reconstruction, or
maintenance.” (Pub. Resources Code, § 29508, subd.
(b).)
The parties dispute whether Respondents’ work
constituted a “repair” and whether there was even an
“object of such repair” at the Site when Sweeney’s work
began. Even if we assume without deciding that
Respondents’ work constituted a “repair” and the
breached levee was the “object of such repair” within
App. 15
the meaning of Section 29508(b), the exception would
not apply.4
Under the plain meaning of Section 29508(b), any
repair or maintenance exempt from permit
requirements must “not result in an addition to, or
enlargement or expansion of, the object of such repair.”
(Pub. Resources Code, § 29508, subd. (b), emphasis
added.) Thus, any work undertaken by Respondents
that went beyond fixing or maintaining the breached
levee as the “object of ... repair” does not qualify for the
exemption. Neither would work completely unrelated
to the breached levee.
BCDC found Sweeney performed quite a lot of work
that went well beyond levee repair or was completely
unrelated to the levee. Apart from any work done to
repair the breached levee, BCDC found Sweeney also
removed and replaced one of the former water control
structures from the Site; replaced a sunken dock
located in the southeast portion of the Site with a
larger dock at the same location; added roads and land
bridges to the Site; excavated multiple crescent ponds
in the interior of the Site; removed, mowed, grazed, or
flattened tidal marsh vegetation throughout the Site
interior; placed shipping containers and mobile
containers on the Site; installed two helicopter pads;
and began operating the site as a kiteboarding
business. Substantial evidence supported each of
BCDC’s findings. We have no difficulty concluding the
4
We do not address the BCDC’s argument that Respondents failed
to exhaust administrative remedies in asserting this exemption
since we conclude the exemption did not apply.
App. 16
Section 29508(b) exception for repairs did not apply
and that the trial court incorrectly set aside the Order
on this basis.
B. Section 29501.5
Section 29501.5 provides: “Notwithstanding the
provisions of Section 29500, within the primary
management area no marsh development permit shall
be required for any development specified in the
component of the local protection program prepared by
the Suisun Resource Conservation District and
certified by the commission pursuant to Section 29415.”
(Pub. Resources Code, § 29501.5.) Under this provision,
work undertaken at a site that is consistent with a
site’s component of the local protection program, or
IMP, does not require a marsh development permit.
The parties agree that the Site’s component of the local
protection program is the Mason IMP that was certified
in 1984. BCDC staff provided a copy of it to Sweeney
during the November 2014 Site visit. But the parties
dispute whether the Mason IMP still applies. In
BCDC’s view, the Mason IMP effectively expired
because the Site’s prior owners never complied with it,
and the site reverted to tidal marsh when the exterior
levee was allowed to deteriorate. Since the purpose of
an IMP is to provide standards for managed wetlands,
the Site’s reversion to tidal marsh meant it was no
longer a managed wetland and the Mason IMP no
longer applied. Thus, the Commission required
Respondents to procure a marsh development permit
for their activities which they failed to secure.
Respondents contend nothing in the Public Resources
Code restricts IMPs to managed wetlands or provides
App. 17
for their expiration. They argue the Mason IMP
continued to be valid, and the work they undertook was
consistent with it and thus exempt from any permit
requirement. Even if we assume the Mason IMP
remains effective, Sweeney’s work was not exempt from
the permit requirements in Section 29501.5.
It is readily apparent the Mason IMP does not
contemplate much of the work performed by Sweeney.
It was prepared in 1984 for the “small lone club located
on Buckley Island ... contained with a single levee.” The
Mason IMP describes two water control structures:
“(a) a main flood gate on the east side that functions to
bring water into the club via a perimeter ditch system;
and (b) a structure on the north side used to drain the
club into Grizzly Bay. It identifies “Club
Improvements” which include “Water Management”
and “Vegetation Management.” Among the “needed
improvements” contemplated for water management is
“inspection and maintenance of levees, ditches, and
water control structures. Ditches need to be kept clear
of vegetation blockages or silt build-ups to allow
circulation and drainage .... Levees require frequent
inspection and attention prevent major breaks from
occurring.” The “needed improvements” for managing
vegetation entails “reduc[ing] by burning and/or
discing” of the “dense growth of undesirable vegetation
in the pond ... followed by flooding.” Mowing emergent
pond vegetation and levee vegetation is also allowed.
BCDC found Sweeney performed a lot of work that
went well beyond what was discussed in the Mason
IMP. Even if some of Sweeney’s work, such as levee
repair, ditch excavation, and vegetation management
App. 18
comported with the Mason IMP, there were various
projects and construction that exceeded the type of
maintenance allowed under it. As discussed above,
Sweeney replaced a sunken dock located in the
southeast portion of the Site with a larger one. He
added roads and land bridges to the Site. He excavated
multiple crescent ponds in the Site’s interior. He placed
shipping containers and mobile containers on the Site.
He installed two helicopter pads. He began operating
the site as a kiteboarding business. All these findings
were supported by substantial evidence. Many, if not
most, of Sweeney’s changes had no reasonable
connection to the management contemplated in the
Mason IMP, and thus were inconsistent with the Site’s
component of the local protection program.
While Sweeney contends his activities were “nothing
more than levee repair,” there is substantial evidence
in support of BCDC’s findings that his work far
exceeded the scope authorized in the Mason IMP.
Further, even if Sweeney’s levee work was repair
rather than reconstruction, and the ditch excavation,
tide gate installation, and vegetation management
were consistent with the Mason IMP, Sweeney’s work
at the Site went well beyond these projects.5 Under the
most expansive view, Sweeney’s claim that all his work
was levee repair is unreasonable. The Section 29501.5
exception did not apply and the trial court’s decision to
5
As stated above, Sweeney also built the four crescent ponds, the
dock and dock expansion, construction of two land bridges, removal
of a former water control structure, the seven trailers/storage
containers, the two helipads, the three wind-breaks, and change in
use to operation of a kiteboarding business.
App. 19
vacate the BCDC’s Order on this basis was also
improper.
III.
Penalties
BCDC assessed respondents $772,000 in civil
administrative penalties. Its staff had proposed a
penalty of $952,000 under the McAteer-Petris Act for
multiple violations that occurred over periods from 2
months to 1.5 years. The most substantial proposed
penalties were $210,000 for placing fill in the Bay to
close each of seven tidal breaches of the original levee;
$120,000 for excavating four crescent ponds in the
Site’s interior and placing the fill adjacent to each
pond; and $222,000 for placing 10 mobile trailers and
storage containers on the Site. Other violations,
including removal and replacement of the water control
structure, development of the Site as a kiteboarding
facility, and installation of two helicopter landing pads,
resulted in proposed penalties each ranging from
$30,000 to $60,000. BCDC’s Enforcement Committee
determined that the placement of fill to close each of
the tidal breaches of the former levee should be treated
as single violation rather than seven and on this basis
reduced the proposed penalty to $772,000, which was
the penalty ultimately adopted by BCDC.
The trial court found that penalty exceeded the limits
imposed by the Mc-Ateer Petris Act and was
unsupported by the findings. It also found it violated
the Eighth Amendment prohibition on excessive fines.
BCDC argues both conclusions were wrong. We agree.
App. 20
A. McAteer-Petris Act
The McAteer-Petris Act authorizes BCDC to impose
civil penalties for any violation in an amount of not less
than $10, but no more than $2,000 per day, up to a cap
of $30,000 per violation. (Gov. Code, § 66641.5, subd.
(e).) A reviewing court will not disturb an
administrative penalty unless the challenger
demonstrates there has been a manifest abuse of
discretion. (Cadilla v. Board of Medical Examiners
(1972) 26 Cal.App.3d 961, 967, 103 Cal.Rptr. 455.)
“Neither a trial court nor an appellate court is free to
substitute its discretion for that of an administrative
agency concerning the degree of punishment imposed.”
(Kazensky v. City of Merced (1998) 65 Cal.App.4th 44,
53–54, 76 Cal.Rptr.2d 356.) What penalty is
appropriate is considered to be particularly within the
agency’s discretion, dependent on the agency’s expert
knowledge. (Hughes v. Board of Architectural
Examiners (1998) 68 Cal.App.4th 685, 692, 80
Cal.Rptr.2d 317.)
The trial court set aside the penalties and concluded
BCDC abused its discretion, exceeded its jurisdiction,
and did not proceed in the manner required by law.
Recognizing the $30,000 cap for a single violation and
BCDC’s $772,000 penalty, the trial court deduced that
BCDC would had to have found at least 26 violations.
According to the court, the “Order identifies only 8
violations, as listed in subparagraphs (a) through (h) of
paragraph II.XX” and was thus not supported by the
findings.
App. 21
BCDC did not abuse its discretion because the penalty
it imposed was readily supported by its findings.6 The
“8 violations” described by the trial court referred to
BCDC findings that summarized the more than two
dozen separate violations BCDC had enumerated for
Respondents over the course of the enforcement
proceeding. The Violation Report/Complaint sent to
Respondents set forth in a two-page table the penalized
work undertaken by Respondents, explains the
violation and number of violations for the work, and
the monetary amount of each violation that went into
the $952,000 proposed penalty. Over two dozen
separate violations were identified for Respondents. At
6
Finding WW in the BCDC Order states: “Respondents have
violated and continue to violate the [Act] by conducting the
unpermitted activities at the Site as described herein, including
but not limited to: [¶] 1. Placing fill in waters of San Francisco
Bay, including tidal marsh, by constructing and rebuilding levees,
excavating ditches and four crescent shaped ponds, installing a
new dock in Anne Mason Slough, constructing roads, and placing
numerous containers, trailers, and other structures and two
helipads on tidal marsh; and [¶] 2. Making substantial changes in
the use of water, land, or structures within the area of [BCDC’s]
jurisdiction by: [¶] a. closing all the tidal breaches that existed in
2011 when Mr. Sweeney purchased the Site and thereby cutting off
all tidal activity to the interior of the Site; [¶] b. installing a new
water control structure in the western portion of the Site; [¶]
c. draining the Site to further alter the pre-existing tidal marsh
hydrology; [¶] d. removing or destroying tidal marsh vegetation by
the placement of fill, excavation activities, mowing activities,
drainage activities, and [¶] bringing goats to the Site and allowing
those goats to graze on the tidal marsh vegetation; e. installing
numerous trailers and containers and two mobile helipads at the
Site; and [¶] f. developing and operating the Site for intensive
recreational uses including but not necessarily limited to kiteboarding.”
App. 22
the enforcement hearing, the Enforcement Committee
reduced the proposed penalty to $772,000 and
explained it did so specifically because it counted
Respondents’ repair of the seven levee breaches to be a
single violation penalized at the $30,000 statutory
maximum rather than seven separate violations
penalized at $210,000. The Committee’s
recommendation to BCDC clearly explained the
reduction, and BCDC adopted $772,000 as the penalty.
The BCDC Order adequately reflected, categorized, and
summarized the dozens of violations listed in the
Violation Report/Complaint.
Respondents insist that BCDC had to list in its
enforcement order each of the separate violations it
alleged. They add that “the absence of a clear list of
violations foreclosed judicial review” of important
issues. Not so. “In determining whether the decision is
supported, we require findings to ‘bridge the analytical
gap between the raw evidence and ultimate decision or
order.’ ” [Citation.] The findings need not be stated
with the precision required in the judicial proceedings.
[Citation.] They may properly incorporate matters by
reference, and even omissions may be filled by such
relevant references as are available in the record.
[Citation.] ‘Thus, where reference to the administrative
record informs the parties and reviewing courts of the
theory upon which an agency has arrived at its
ultimate finding and decision it has long been
recognized that the decision should be upheld if the
agency ‘in truth found those facts which as a matter of
law are essential to sustain its ... [decision].’ ” (Craik v.
County of Santa Cruz (2000) 81 Cal.App.4th 880,
884–885, 96 Cal.Rptr.2d 538.) BCDC’s findings on its
App. 23
penalty determination sufficiently “bridge the gap”
between the evidence and its order. The grounds for the
$772,000 penalty can readily be derived from the
record.
Respondents further contend that the penalty should
be set aside for BCDC’s failure to consider the factors
in Government Code section 66641.9, for each of the
violations before imposing the penalty. That provision
states: “In determining the amount of administrative
civil liability, [BCDC] shall take into consideration the
nature, circumstance, extent, and gravity of the
violation or violations, whether the violation is
susceptible to removal or resolution, the cost to the
state in pursuing the enforcement action, and with
respect to the violator, the ability to pay, the effect on
ability to continue in business, any voluntary removal
or resolution efforts undertaken, any prior history of
violations, the degree of culpability, economic savings,
if any, resulting from the violation, and such other
matters as justice may require.” (Gov. Code, § 66641.9,
subd. (a).) Again, the BCDC Order reflects that the
Commission did sufficiently consider these factors.
BCDC devoted a paragraph of analysis to each factor
before imposing the penalty. There was no abuse of
discretion.
B. Eighth Amendment
The Eighth Amendment to the United States
Constitution provides: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” (U.S. Const., 8th
Amend.)
App. 24
The prohibition on excessive fines in the Eighth
Amendment “ ‘limits the government’s power to extract
payments, whether in cash or in kind, “as punishment
for some offense.” ’ ” (United States v. Bajakajian
(1998) 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d
314 (Bajakajian).) The California Constitution contains
a similar protection. (People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728, 36
Cal.Rptr.3d 814, 124 P.3d 408 (R.J. Reynolds).)7 The
touchstone of constitutional inquiry under the
excessive fines clause is the principle of proportionality.
(Bajakajian, at p. 334, 118 S.Ct. 2028.) The amount of
the fine must bear some relationship to the gravity of
the offense that it is designed to punish, and a fine that
is grossly disproportional to the gravity of the
defendant’s offense violates the excessive fines clause.
(Ibid.) In deciding the matter, we consider “(1) the
defendant’s culpability; (2) the relationship between
the harm and the penalty; (3) the penalties imposed in
similar statutes; and (4) the defendant’s ability to pay.”
(R.J. Reynolds, at pp. 728, 730, 36 Cal.Rptr.3d 814, 124
P.3d 408.) “We review de novo whether a fine is
constitutionally excessive and therefore violates the
Eighth Amendment’s Excessive Fines Clause.” (United
States v. Lewis (9th Cir. 2003) 62 Fed.Appx. 757, 762;
see also Cooper Industries, Inc. v. Leatherman Tool
7
Article I, section 17 of the California Constitution states: “Cruel
or unusual punishment may not be inflicted or excessive fines
imposed.” (Cal. Const., art. I, § 17.)
App. 25
Group, Inc. (2001) 532 U.S. 424, 435–36, 121 S.Ct.
1678, 149 L.Ed.2d 674 (Cooper).).8
The trial court concluded the fines imposed here
violated the Eighth Amendment’s prohibition against
excessive fines and set them aside. The court found
Respondents’ culpability was low; the penalty was
grossly disproportional to the harm caused; there was
a gross disparity between penalties imposed by the
BCDC for similar behavior; and that Respondents
could not afford to pay the penalty imposed. Based on
our review of the record, we reach a different
conclusion as to each of these factors. Many of these
factors overlap with or are similar to those considered
by BCDC under the McAteer-Petris Act.
BCDC’s findings characterize Respondents’ culpability
as substantial. The findings state that “Respondents’
conduct at the Site was unreasonable and
demonstrated a willful indifference to the regulatory
permitting process that is intended to protect water
quality, beneficial uses, and to prevent illegal
discharges.” This characterization was based on
evidence that Sweeney interacted with various
government agencies with jurisdiction over Suisun
Marsh and was previously found in violation for levee
work he did at another property. Respondents argue
there are no facts to suggest Sweeney should have
known he needed a BCDC permit at the Site, which
8
Respondents suggest we apply a substantial evidence standard
in reviewing the trial court’s finding of excessiveness. But they
provide no authority for this contention which goes against the
weight of authority
App. 26
supports the trial court’s conclusion that “there is no
evidence [Sweeney] should have known he needed a
permit from [BCDC].” The trial court’s conclusion was
misplaced. It was “for the Commission to weigh the
preponderance of conflicting evidence” and reversal can
be justified “only if, based on the evidence before it, a
reasonable person could not have reached the
conclusion reached by it.” (Sustainability, supra, 226
Cal.App.4th at p. 916, 172 Cal.Rptr.3d 110.) That was
not the case here. Moreover, BCDC found Respondents
continuously performed work at the Site after BCDC
staff directed Sweeney to stop work. Respondents have
not addressed these findings.
The relationship between the harm and the penalty
was also significant when evaluated in the context of
numerous findings BCDC made as to the nature,
circumstances, extent, and gravity of Respondents’
violations. BCDC explained, “Excavation of tidal marsh
at the Site physically removed estuarine habitat and
the placement of fill eliminated surface water and
wetland habitats. The harm from Respondents’
unauthorized filling, destruction of tidal marsh, and
cutting-off of tidal action at the Site was and is
substantial, has adversely impacted beneficial uses of
Suisun and Grizzly Bays, and likely resulted in the
illegal take of threatened or endangered species
protected under the California and federal Endangered
Species Acts. Unauthorized filling and excavation
activities occurred outside work activity windows
established to protect sensitive species in the Suisun
Marsh. Blocked tidal channels at the Site are
preventing longfin smelt from being able to access
spawning grounds, young salmonids from accessing
App. 27
feeding grounds, and have cut off the export of food
material from the Site’s interior wetlands needed to
support the threatened Delta smelt.” Although
Respondents dispute these findings, we have no
grounds in the record to reverse them. (Sustainability,
supra, 226 Cal.App.4th at p. 916, 172 Cal.Rptr.3d 110
[reversal proper only where “a reasonable person could
not have reached the conclusion” reached by agency].)
As to the penalties imposed in similar statutes, this
factor has been explained as “the sanctions imposed in
other cases for comparable misconduct.” (Cooper,
supra, 532 U.S. at p. 435, 121 S.Ct. 1678.) We disagree
with Respondents’ argument that the penalty was
excessive simply because it represented BCDC’s
“highest penalty ever.” The penalty was large because
it was based on more than two dozen violations found
by BCDC to have occurred over a prolonged period of
time. (See Ojavan Investors, Inc. v. California Coastal
Commission (1997) 54 Cal.App.4th 373, 398, 62
Cal.Rptr.2d 803 [$9.5 million civil penalty against a
developer for 73 violations of Coastal Act not
excessive].) We also are not persuaded by Respondents’
contentions that the penalty was excessive because of
its comparison to regulatory action or inaction
undertaken by BCDC at other duck hunting clubs for
levee repair and containers. None of Respondents’
points of comparison appear to represent a level of
work and development similar to what Respondents
undertook at the Site.
BCDC considered the final factor, Respondents’ ability
to pay. On this point the Order stated, “The Regional
Board staff investigated and analyzed Respondents’
App. 28
financial resources, and determined that Respondents
have the ability to pay a substantial penalty.” The
Regional Board’s ability to pay analysis estimated
Respondents’ assets at $4.2 million. In light of total
penalties from multiple regulatory agencies,
Respondents contend the Board’s calculation was too
high and misguided. But aside from their hyperbolic
arguments against the penalty and Sweeney’s
declarations about problems with the Regional Board’s
calculation, Respondents did not include any objective
information about their financial condition in the
record when they raised the issue in their Statement of
Defense before the Enforcement Committee (e.g.,
financial statements, tax returns) even though they
had the opportunity to do so. (Cal. Code Regs., tit. 14,
§ 11322 [requiring submission of all copies of
documentary evidence respondent wants to be part of
the record with completed statement of defense form]).
When they attempted to provide such information at
the full BCDC hearing, it was too late. On this record,
the $772,000 penalty was not unreasonable in light of
Respondents’ ability to pay.
We cannot conclude that the $772,000 in civil penalties
was “grossly disproportional” to the gravity of the
offense so as to violate the Eighth Amendment. The
penalty did not violate the excessive fines clause.
IV.
Vindictive Prosecution
“The constitutional protection against prosecutorial
vindictiveness is based on the fundamental notion that
it ‘would be patently unconstitutional’ to ‘chill the
assertion of constitutional rights by penalizing those
who choose to exercise them.’ ” (In re Bower (1985) 38
App. 29
Cal.3d 865, 873, 215 Cal.Rptr. 267, 700 P.2d 1269.)
When a “defendant shows that the prosecution has
increased the charges in apparent response to the
defendant’s exercise of a procedural right, the
defendant has made an initial showing of an
appearance of vindictiveness.” (People v. Puentes (2010)
190 Cal.App.4th 1480, 1486, 119 Cal.Rptr.3d 67.) “Once
this prima facie case is made, the prosecution bears a
‘heavy burden’ of dispelling the appearance of
vindictiveness as well as actual vindictiveness.” (Ibid.)
The trial court found Respondents made such an initial
showing because BCDC imposed record penalties after
Sweeney filed a successful writ petition to stay the
Regional Board’s 2015 Cleanup and Abatement Order.
(Ante, fn. 2.) BCDC contends the trial court improperly
set aside the penalties on vindictiveness grounds. We
agree with BCDC.
As an initial matter, Respondents cite no authority,
and we have found none, that applies the vindictive
prosecution doctrine in a context outside of criminal
proceedings. We conclude the court erred in setting
aside BCDC’s civil administrative order and penalties
for this reason. The vindictive prosecution doctrine has
not yet been held to apply to proceedings before
administrative bodies.
Even if the doctrine applied, Respondents made no
prima facie showing that BCDC “increased the
charges” against them in response to their exercise of
any procedural right against BCDC. Apart from the
lawsuit underlying this appeal, there is no evidence
that Respondents ever exercised a procedural right
against BCDC. Respondents rely upon their 2015 writ
App. 30
petition to stay the Cleanup and Abatement Order but
that was directed to the Regional Board, a separate
regulatory agency. Also, Respondents’ assertion that
BCDC imposed increased penalties on them because
they filed this writ petition is simply not supported by
the record. BCDC staff previewed the possibility of civil
penalties and notified Sweeney it was “handling this
matter as an enforcement case” in January 2015, well
before Respondents’ writ petition was filed in
December 2015. Prior to the December 2015 petition,
BCDC had no “charges” pending against Respondents
that it could increase after Respondents filed the
petition. The Interim Cease and Desist Order was not
issued until April 2016, and the Violation
Report/Complaint for Civil Penalties was not issued
until May 2016, following investigation by BCDC staff.
Thus, BCDC’s only “charges” came after Respondents’
writ petition, and there is no showing penalties were
ever increased on account of it. Under these facts,
Respondents made no prima facie case.
V.
Fair Hearing
A. Separate Functions
“One of the basic tenets of the California
[Administrative Procedure Act] ... is that, to promote
both the appearance of fairness and the absence of even
a probability of outside influence on administrative
hearings, the prosecutory and, to a lesser extent,
investigatory, aspects of administrative matters must
be adequately separated from the adjudicatory
function.” (Nightlife Partners v. City of Beverly Hills
(2003) 108 Cal.App.4th 81, 91, 133 Cal.Rptr.2d 234,
italics omitted.) “To prove a due process violation based
App. 31
on overlapping functions thus requires something more
than proof that an administrative agency has
investigated and accused, and will now adjudicate.
‘[T]he burden of establishing a disqualifying interest
rests on the party making the assertion.’ ... That party
must lay a ‘specific foundation’ for suspecting prejudice
that would render an agency unable to consider fairly
the evidence presented at the adjudicative hearing ... it
must come forward with ‘specific evidence
demonstrating actual bias or a particular combination
of circumstances creating an unacceptable risk of
bias’.... Otherwise, the presumption that agency
adjudicators are people of ‘conscience and intellectual
discipline, capable of judging a particular controversy
fairly on the basis of its own circumstances’ will stand
unrebutted.” (Today’s Fresh Start, Inc. v. Los Angeles
County Office of Education (2013) 57 Cal. 4th 197,
221–222, 159 Cal.Rptr.3d 358, 303 P.3d 1140.) We
independently review the claim BCDC failed to afford
Respondents a fair hearing. (See City of Pleasanton v.
Board of Administration (2012) 211 Cal.App.4th 522,
531, 149 Cal.Rptr.3d 729 (Pleasanton); TWC Storage,
LLC v. State Water Resources Control Bd. (2010) 185
Cal.App.4th 291, 296, 110 Cal.Rptr.3d 270.)
The trial court found the prosecutorial and
adjudicatory functions of the agency were insufficiently
separate and disapproved of how the prosecution team
“prepared the summary memos on which [BCDC]
relied” and thus “impermissibly commingled the
prosecution function with the judicial-making
function.” BCDC contends the trial court erred in
setting aside its Order on these grounds. We agree.
App. 32
1. BCDC’s Enforcement Procedures
BCDC’s adjudicatory procedures for enforcement
actions are set forth in Title 14, Code of California
Regulations, section 11300 et seq. Under these
procedures, BCDC can hear some enforcement matters
directly. But when the violations involve complex facts,
its Enforcement Committee can hear a matter before
BCDC as a whole considers whether to issue an
enforcement order. (Cal. Code Regs., tit. 14, §§ 11310,
subd. (b), 11323–11324.)
In cases where BCDC staff assesses significant harm
and the executive director refers a matter to the
enforcement committee, formal enforcement
proceedings begin with BCDC staff issuance of a
violation report and complaint for civil penalties to the
respondent, which is the party believed to be
responsible for the alleged violation. (Cal. Code Regs.,
tit. 14, § 11321.) BCDC staff also send a Statement of
Defense form so the responsible party can respond to
the allegations. (Cal. Code Regs., tit. 14, § 11322.).
Before the enforcement hearing, BCDC’s Executive
Director mails the violation report, the respondent’s
completed Statement of Defense form, and the
Executive Director’s recommended enforcement
decision to the respondent and to Enforcement
Committee. (Cal. Code Regs., tit. 14, § 11324.) At the
hearing, BCDC staff summarize the violation report
and the recommended enforcement decision, and the
respondent states his position. (Cal. Code Regs., tit.14,
§ 11327.) Oral testimony may be taken under oath, and
cross-examination is permitted under certain
circumstances. (Cal. Code Regs., tit. 14, § 11327.) A
App. 33
Deputy Attorney General attends the hearing to advise
the Enforcement Committee on legal issues. (Cal. Code
Regs., tit. 14, § 11329.) The Enforcement Committee
adopts a recommended enforcement decision, which
may be the Executive Director’s recommendation or a
modification of it. (Cal. Code Regs., tit. 14, § 11330.)
The full BCDC then considers the Enforcement
Committee’s recommended decision. (Cal. Code Regs.,
tit. 14, § 11331.) BCDC staff, the respondent, and
members of the public may present arguments on the
recommendation subject to reasonable time limits.
(Cal. Code Regs., tit. 14, § 11332.) Thereafter, the
BCDC votes to either adopt the recommended
enforcement decision without change, adopt it in part,
dismiss the entire matter, remand the matter for
further action, or reject the recommended enforcement
decision and decide the matter de novo. (Cal. Code
Regs., tit. 14, § 11332.) The BCDC decision is made by
majority vote of those present and voting. (Cal. Code
Regs., tit. 14, § 11334.)
2. Respondents’ Hearing
Based on our review of Respondents’ hearing
transcript, we have no reason to conclude Respondents
received an unfair hearing based on insufficiently
separated functions. BCDC adhered to its procedures
in the course of Respondents’ hearing, and its process
was similar to the one validated in Pleasanton, supra,
211 Cal.App.4th 522, 149 Cal.Rptr.3d 729.
In Pleasanton, supra, 211 Cal.App.4th 522, 149
Cal.Rptr.3d 729, the plaintiff brought a retirement pay
claim before the Public Employees’ Retirement System
App. 34
(PERS). (Id. at p. 528, 149 Cal.Rptr.3d 729.) An
evidentiary hearing was held before an administrative
law judge (ALJ) who denied the claim. (Id. at p. 529,
149 Cal.Rptr.3d 729.) The ALJ decision was submitted
to the PERS board to determine whether to adopt the
ALJ decision or take other action. (Ibid.) Accompanying
the proposed decision was a PERS staff report in
support of the proposed ALJ decision. (Id. at pp. 529530, 149 Cal.Rptr.3d 729.) Also included was a
document prepared by the plaintiff’s counsel
advocating for the rejection of the proposed decision.
(Id. at p. 530, 149 Cal.Rptr.3d 729.) The court found no
due process violation merely because a staff report was
included with the ALJ’s recommended decision. (Id. at
pp. 531-532, 149 Cal.Rptr.3d 729.) The court explained,
“As long as both sides’ arguments on the issue were
presented to the board at the same time, no agency
staff involved in handling [the plaintiff’s] appeal voted
or acted in any supervisory capacity over voting
members on the board itself, and there were no ex
parte contacts between agency staff and board
members about the decision, we perceive no due
process problem.” (Ibid.)
Here, the process conformed to the fairness principles
set forth in Pleasanton. Both BCDC staff and
Respondents’ counsel presented arguments at the
Enforcement Committee hearing, and then presented
their views on the Committee’s recommended
enforcement decision to the full BCDC. Moreover, the
Commissioners were the ones to vote at the
Enforcement Committee hearing and then the full
BCDC session. Agency staff had no vote in either
proceeding, and there is no evidence that staff acted in
App. 35
any supervisory capacity over any of the
Commissioners. Nor was there any finding by the trial
court that any staff had ex parte communications with
any Commissioner. BCDC staff submitted declarations
to make clear they had no ex parte communications
with Commissioners. Since BCDC’s prosecutorial and
adjudicatory functions were appropriately separate,
there was no due process violation.
Respondents assert the functions were not separate
because the Executive Director was part of the agency’s
decision-making team as an advisor and was not
independent of the agency prosecutors who prepared
and sent his recommended enforcement actions to the
Enforcement Committee and BCDC. Not so. The
Executive Director was not a decision-maker. (See Gov.
Code, § 66635 [executive director is position appointed
by the BCDC].) He did not vote as either a member of
the Enforcement Committee or as part of BCDC. Nor
did he advise the decision-makers. By statute, his role
is to “administer[ ] the affairs of the commission,
subject to the direction and policies of the commission.”
(Gov. Code, § 66635.) There is no evidence the
Executive Director ever appeared at either the
Enforcement Committee hearing, the proceeding before
BCDC, or any other proceeding in an advisory role.
Further, providing a recommended enforcement
decision to BCDC did not make the Executive Director
an advisor. Not only were such actions prescribed by
BCDC regulations, they do not raise due process
concerns as stated in Pleasanton where key boundaries
are observed, as they were here. (See Pleasanton,
supra, 211 Cal.App.4th at p. 533, 149 Cal.Rptr.3d 729
[no authority says “agency decisionmaking body is
App. 36
precluded from soliciting or receiving a written
analysis and recommendation from the agency’s
prosecuting attorney delivered to it as part of a public
agenda packet along with the adversary’s opposing
analysis and recommendation”].)
Respondents contend Pleasanton is distinguishable
because there, the ALJ was “independent and
impartial” and the respondents had a chance to submit
comments to the administrative body explaining why
they opposed it. We are not persuaded. In
administrative proceedings, there is no requirement for
an independent decision maker. “[B]y itself, the
combination of investigative, prosecutorial, and
adjudicatory functions within a single administrative
agency does not create an unacceptable risk of bias and
thus does not violate the due process rights of
individuals who are subjected to agency prosecutions.”
(Morongo Band of Mission Indians v. State Water
Resources Control Bd. (2009) 45 Cal.4th 731, 737, 88
Cal.Rptr.3d 610, 199 P.3d 1142 (Morongo).) Also,
simply because the Enforcement Committee members
were Commissioners, rather than separate ALJs, does
not mean they were not impartial. (See ibid. [“Unless
they have a financial interest in the outcome [citation],
adjudicators are assumed to be impartial.”].) There is
nothing in the record to rebut the presumption that
each of the Commissioners involved was a “ ‘reasonably
impartial, noninvolved reviewer.’ ” (Linney v. Turpen
(1996) 42 Cal.App.4th 763, 775–777, 49 Cal.Rptr.2d
813.) Finally, even if the process did not allow
Respondents to submit comments alongside the
Enforcement Committee’s recommended enforcement
decision, BCDC regulations allow Respondents to
App. 37
“present their ... arguments on the recommendation”
(Cal. Code Regs., tit. 14, § 11132, subd. (a)), and they
did. Again, Respondents identify no arguments they
were unable to present to the BCDC that would have
led to a different outcome.
Lastly, Respondents claim the agency prosecutors had
ex parte communications with Commissioners because
the 9-page staff report “magically appeared” in the
Enforcement Committee’s Recommended Decision, and
that could not have happened without some ex parte
communication. Not so. All were present at the hearing
when the Enforcement Committee members voted its
recommendation on the record. On this basis, all
parties and the staff understood what the Enforcement
Committee’s recommendation would be. Preparing the
recommendation would not normally require any
further interaction between staff and Commissioners.
We have no reason to disregard the uncontested
declarations from BCDC staff confirming they had no
ex parte communications with Commissioners.9
B. Totality of the Circumstances
Although adjudicators are presumed to be impartial,
“the presumption of impartiality can be overcome” by
“a particular combination of circumstances creating an
9
Further, BCDC regulations required the staff to send the
Enforcement Committee’s recommendation to BCDC and
Respondents. (Cal. Code Regs., tit. 14, § 11331 [“At least ten (10)
days prior to the Commission’s reconsideration of a recommended
enforcement decision ... the staff shall mail the recommended
enforcement decision to all respondents and to all
Commissioners.”].) Staff did so.
App. 38
unacceptable risk of bias.” (Morongo, supra, 45 Cal.4th
at p. 741, 88 Cal.Rptr.3d 610, 199 P.3d 1142.) This is
sometimes referred to as the “totality-of-the
circumstances approach.” (Id. at p. 740, 88 Cal.Rptr.3d
610, 199 P.3d 1142.) The trial court also found
Respondents’ hearing was unfair based on the totality
of the circumstances. BCDC contends this too was
erroneous. Again, we agree.
The trial court found the hearing “appeared unfair
because of the short time allowed for Plaintiffs to make
their case.” Based on BCDC’s purported finding of over
two dozen violations, the court deduced that “Plaintiffs
had only about 2 minutes before the Enforcement
Committee to make their case on each violation, and
about 30 seconds before the BCDC itself” and found
“these times were not sufficient for a fair trial in this
case.” There is no requirement that hearings last for
any particular amount of time (see Cal. Code Regs., tit.
14, § 11327), and reasonable time limitations are
necessary and inevitable. (Cf. Reed v. California
Coastal Zone Conservation Com. (1975) 55 Cal.App.3d
889, 895, 127 Cal.Rptr. 786 [petitioners who were
restricted to 10 minutes’ oral argument at hearing and
never objected not denied due process].) The
Enforcement Committee initially gave each party 45
minutes to present at the hearing, but after Sweeny
objected and asked for 75 to 90 minutes, each side was
given 60 minutes. The total hearing lasted more than
three hours. This was not a denial of due process.
Regulations for proceedings before the full BCDC allow
the parties “to present their respective arguments on
the recommendation, subject to such reasonable time
App. 39
limits as the Chair may impose and subject to a
prohibition against the introduction of any new
evidence” except under circumstances inapplicable
here. (Cal. Code Regs., tit. 14, § 11332.) Each side had
15 minutes to present its views on the Enforcement
Committee recommendation to BCDC. This was
reasonable in light of the hour each side was provided
during the three-hour Enforcement Committee
hearing. Moreover, in neither case do Respondents
state what additional evidence or argument they were
unable to present in the allotted time.
The trial court also criticized BCDC for failing to make
a legal ruling on the statutory exemptions to the permit
requirement that respondents claimed for the levee
repairs. The court found the hearing “appeared to be
unfair because there was no ruling on the legal issues.”
In the trial court’s view, BCDC’s refusal to rule on the
exemptions “gave the impression that [BCDC] did not
have to comply with the law.” These findings simply do
not reflect the record. Section 29501.5, which exempts
from permit requirements development consistent with
a site’s IMP, was fully addressed during the course of
the enforcement proceeding. The Enforcement
Committee’s recommended enforcement decision, which
BCDC voted to adopt, addressed it, stating “the Annie
Mason IMP no longer applied to the site.” Finding “V”
of the BCDC Order also addressed it, stating: “Even if
the Annie Mason IMP still applied to the Site at the
time Mr. Sweeney engaged in the above-described
activities, which it did not, said activities were not
described in and thus were not authorized by the Annie
Mason IMP.” As to the Section 29508(b) exception for
repairs, Respondents never invoked it in their
App. 40
Statement of Defense, so BCDC reasonably did not rule
on it.
Beyond the reasons set forth by the trial court,
Respondents assert the unfairness finding was
“supported by at least nine types of substantial
evidence.” We need not address these in any detail.
Eight of them do not indicate bias or prejudice on the
part of the decisionmaker. (See Haas v. County of San
Bernardino (2002) 27 Cal.4th 1017, 1024, 1034, 119
Cal.Rptr.2d 341, 45 P.3d 280.) Rather, they merely
rehash arguments from Respondents’ challenge to
BCDC’s penalty determination, or repeat arguments
we have previously addressed. The one contention that
could raise potential bias is Respondents’ claim that
BCDC’s expert was “hostile” to Sweeney, had “personal
enmity” towards him, and was in no position to be
impartial in his assessment of Sweeney’s work. Had
Respondents truly believed BCDC’s expert was
prejudicially biased, Respondents could have raised
such an objection before the Enforcement Committee or
the full BCDC, but they did not. When given an
opportunity to cross-examine the expert at the
Committee’s hearing, Respondents raised no question
or concern about his impartiality, and did not ask him
about communications he had with Sweeney.
DISPOSITION
The judgment on the BCDC Order in Solano County
Superior Court Case No. FCS048136 is reversed, and
the writ of mandate is vacated. The matter is
remanded to the trial court with directions to deny
Respondents’ petition for writ of mandate and request
App. 41
to set aside the BCDC Order, and for further
proceedings consistent with this opinion.
Appellants are awarded costs on appeal.
WE CONCUR:
Fujisaki, Acting, P.J.
Jackson, J.
App. 42
APPENDIX D
Court of Appeal, First District,
Division Three, California
A153583, A153585
[Filed: February 18, 2021]
As Modified on Denial of Rehearing 3/18/2021
__________________________________________
JOHN D. SWEENEY et al.,
)
Plaintiffs and Respondents,
)
)
v.
)
)
CALIFORNIA REGIONAL WATER
)
QUALITY CONTROL BOARD, SAN
)
FRANCISCO BAY REGION et al.,
)
Defendants and Appellants. John D.
)
Sweeney et al.,
)
Plaintiffs, Cross-defendants,
)
and Respondents,
)
)
v.
)
)
SAN FRANCISCO BAY
)
CONSERVATION AND
)
DEVELOPMENT COMMISSION et al.,
)
Defendants, Cross-complainants
)
and Appellants.
)
__________________________________________)
App. 43
Trial Court: Solano County Superior Court, Trial
Judge: Hon. Harry S. Kinnicutt (Solano County Super.
Ct. Nos. FCS048136 and FCS048861)
Attorneys and Law Firms
Xavier Becerra, Attorney General, Robert W. Byrne,
Senior Assistant Attorney General, Annadel A.
Almendras, Supervising Deputy Attorney General,
Matthew G. Bullock, Daniel S. Harris, Deputies
Attorney General, Joshua Patashnik for Appellants.
John Briscoe, Lawrence S. Bazel, San Francisco,
Briscoe Ivester & Bazel, LLP, for Respondents.
Kerry Shapiro, Martin Patrick Stratte, San Francisco,
Jeff Mangels Butler & Mitchell, LLP. Amicus for
Respondents.
OPINION
Siggins, J.*
Point Buckler (the Site) is a 39-acre tract located in
Suisun Marsh. John Sweeney purchased the island and
subsequently transferred ownership to Point Buckler
Club, LLC (Club) (Sweeney and the Club are
collectively referred to as Respondents). For months,
Respondents undertook various unpermitted
development projects at the Site, which included the
restoration of an exterior levee surrounding it that had
been breached in multiple places.
*
Assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
App. 44
These consolidated appeals concern two administrative
orders issued by the Regional Water Quality Control
Board, San Francisco Bay Region against Respondents.
The first order was a cleanup and abatement order
which found Respondents’ development activities were
unauthorized and had adverse environmental effects.
These included impacts to tidal marshlands, fish
migration, and aquatic habitat. The cleanup and
abatement order directed Respondents to implement
corrective actions to address the effects of their work.
The second order imposed administrative civil
liabilities and required Respondents to pay
approximately $2.8 million in penalties for their
violations of environmental laws and regulations.
Respondents successfully challenged both orders in
writ proceedings in the superior court. Appellants
Regional Water Quality Control Board, San Francisco
Bay Region and its Executive Officer, Bruce Wolfe
(collectively referred to as Regional Board or Board)
contend the trial court made numerous legal and
factual errors leading it to improperly set aside the
orders. We agree with the Regional Board and reverse
both trial court judgments.
BACKGROUND
The Site is located in Suisun Marsh at the south end of
Grizzly Bay, a portion of the San Francisco Bay.
In 2011, Sweeney bought the Site, which appears to
have been previously operated as a managed wetland
for duck hunting. When Sweeney purchased the
property, the levee which had circumscribed the island
had degraded and breached in multiple places.
App. 45
Following his purchase, Sweeney undertook a number
of unpermitted construction and development projects,
which included restoring the Site’s exterior levee.
In October 2014, Sweeney transferred title to the Point
Buckler Club, LLC (Point Buckler Club), for which he
was the manager and principal shareholder. He began
operating the Site as a private recreational area for
kiteboarding. Sweeney also wanted to restore the Site
as a duck hunting club.
In November 2014, staff from the San Francisco Bay
Conservation and Development Commission (BCDC),
a state agency with jurisdiction over the waters of the
San Francisco Bay including Suisun Marsh, inspected
the Site. BCDC staff notified Sweeney about their
concerns with unauthorized work occurring there and
identified multiple violations. They observed the levee
construction work had removed tidal flow to the Site’s
interior and dried out tidal marsh areas. Addressing
Sweeney’s view that the island was a managed wetland
and his stated intent to restore the island to that use,
they indicated that based on available information, the
history of the Site and the recent Site visit, the Site
never functioned as a managed wetland and had long
reverted to a tidal marsh due to neglect, abandonment,
or the forces of nature. Sweeney was directed to stop
work and informed that a marsh development permit
was required prior to developing the Site. In addition,
BCDC staff conveyed that any work that could not be
retroactively approved through the permit process
would likely need to be removed and the Site restored
to tidal marsh. BCDC was handling the matter as an
enforcement case, and potential future enforcement
App. 46
against Sweeney could include cease and desist orders
and a civil penalty.1
The Regional Board commenced separate enforcement
proceedings against Respondents. In July 2015, the
Board issued a Notice of Violation for Respondents’
unauthorized filling of federal and state waters in
violation of the federal Clean Water Act and the
California Water Code. Several months later, the Board
issued Cleanup and Abatement Order No. R2-20150038 (2015 CAO) to Respondents.
In October 2015, Regional Board staff inspected the
Site with representatives from other agencies,
including BCDC, the U.S. Environmental Protection
Agency, and the U.S. Army Corp of Engineers (Corps).
The agencies wanted to better understand the nature
and extent of Respondents’ development activities,
including the volume of fill placed for construction of
the levee, and to understand the impacts of the
development on tidal marsh habitat. During this
inspection, BCDC staff observed that additional work
1
In November 2016, BCDC issued a cease and desist and civil
penalty order which ordered Respondents to cease and desist from
placing any fill within the Site, or making any substantial changes
to any part of the Site that was or had been subject to tidal action
before their unauthorized work. Respondents were further ordered
to refrain from engaging in any development activity at the Site
without permits. They were directed to submit plans to restore the
Site and mitigate the impacts of their unauthorized activities and
ordered to pay $772,000 in administrative penalties. In a separate
opinion filed today in the companion case of Sweeney v. San
Francisco Bay Conservation and Development Commission, Case
No. A153582, we reversed the trial court’s order invalidating the
action taken by the BCDC.
App. 47
had been performed since their initial November 2014
inspection. According to Sweeney, worked stopped two
months earlier when Respondents first learned of the
regulatory agency objections.
In December 2015, Respondents filed a petition for writ
of mandate and a complaint for injunctive and
declaratory relief challenging the 2015 CAO. The court
granted Respondents’ request to stay the 2015 CAO
and enjoined the Board from enforcing the order
pending a preliminary injunction hearing. In January
2016, in order to address Sweeney’s procedural due
process concerns, the Regional Board rescinded the
2015 CAO without prejudice to its ability to issue a
new order.
In the ensuing months, state agencies conducted more
inspections. In February 2016, the Regional Board
conducted a boat survey around the Site to assess
conditions and observed additional development on the
island since the October 2015 multi-agency inspection.
In March 2016, after securing an inspection warrant,
the Regional Board conducted another Site inspection.
The results of the inspection were compiled into an
Inspection Report, which provided a summary of
inspection activities, water quality sampling results,
staff observations, and photographs.
In May 2016, an expert retained by the Regional Board
issued the “Point Buckler Technical Assessment of
Current Conditions and Historic Reconstruction Since
1985” (Technical Assessment). The Technical
Assessment was a 400-plus-page report based on
examinations of conditions at the Site over time that
App. 48
reported Respondents’ development activities and their
impacts.
Shortly after release of the Technical Assessment, the
Regional Board commenced new formal enforcement
proceedings against Respondents. On May 17, 2016,
the Board issued a tentative cleanup and abatement
order and Administrative Civil Liability Complaint No.
R2-2016-1008 (ACL Complaint). The ACL Complaint
proposed a $4.6 million penalty for Respondents’
alleged violations.
A hearing on the tentative cleanup and abatement
order was held on August 10, 2016. The Board
unanimously adopted and issued Cleanup and
Abatement Order No. R2-2016-0038 (CAO). The Board
made dozens of findings in the CAO regarding
Respondents’ unauthorized activities at the Site and
the environmental harm resulting from the activities.
The Board found Respondents’ activities had adverse
impacts on tidal marshlands, estuarine habitat, fish
migration, the preservation of rare and endangered
species, fish spawning, wildlife habitat, and
commercial and sport fishing. The Board concluded
Respondents’ activities violated the Water Quality
Control Plan for the San Francisco County Basin
(Basin Plan), which prohibits the discharge of fill
material in quantities sufficient to harm surface waters
or to adversely affect or threaten beneficial uses. The
Board also found Respondents’ work violated section
301 of the Clean Water Act which prohibits the
discharge of pollutants in state and federal waters
without a permit, and section 401, which prohibits
dredge and fill activities in state and federal waters
App. 49
without a water quality certification. The Board
ordered Respondents to submit certain technical
reports and to clean up the discharged waste, abate its
effects, and take corrective actions that would restore
tidal circulation and marsh habitat to the Site.
A hearing was held on the ACL Complaint on
December 14, 2016. The Board issued Administrative
Civil Liability Order No. R2-2016-0008 (ACL Order).
Respondents were found in violation of the Basin Plan
and Clean Water Act and assessed $2.8 million in
penalties, rather than $4.6 million as proposed.
Respondents challenged the orders in separate
lawsuits. In December 2016, they petitioned under
Code of Civil Procedure section 1094.5 for a peremptory
writ of mandate to set aside the CAO. In May 2017,
Respondents filed a second petition for a peremptory
writ of mandate under Code of Civil Procedure section
1094.5 contesting the ACL Order.
In May 2017, the Attorney General’s Office,
representing the Board, filed a cross-complaint seeking
to enforce both orders.
The trial court granted Respondents’ motion to stay the
accrual of civil penalties while the appeal was pending.
The court also stayed substantive portions of the CAO
through judgment until an appeal was filed, or the time
to appeal had run.
In October 2017, the trial court heard the challenges to
the CAO and ACL Order. In separate statements of
decisions, the trial court granted Respondents’ motions
and set aside both Regional Board orders. The court
also declared the Regional Board’s cross-complaint
App. 50
seeking to enforce the CAO and ACL Order was moot.
The court entered judgment in favor of Respondents,
issued peremptory writs of mandate in each matter,
and remanded the proceedings to the Regional Board
with a directive to set aside the orders.
The Regional Board and its Executive Director Bruce
Wolfe separately appealed each judgment. In July
2018, we consolidated the Board’s appeal from the ACL
Order judgment (Case No. A153583) and its appeal
from the CAO judgment (Case No. A153585) for all
purposes. We received briefing on Respondents’ behalf
from amicus curiae California Construction and
Industrial Materials Association.
While the consolidated appeal was pending, the United
States District Court for the Eastern District of
California issued its opinion in United States v.
Sweeney (Sept. 1, 2020 E.D. Cal.) 483 F.Supp.3d 871
(the Sweeney District Court Opinion), which
adjudicated the federal government’s claims against
Respondents for their activities at the Site under the
Clean Water Act. (Id. at 877-78.) We granted the
Regional Board’s request for supplemental briefing on
the possible res judicata effect of the federal district
court’s opinion on this appeal, and received briefing
from the parties.
DISCUSSION
I.
APPLICABLE LAW
“A party aggrieved by a final decision or order of a
regional board ... may obtain review of the decision or
order of the regional board in the superior court by
filing in the court a petition for writ of mandate.” (Wat.
App. 51
Code, § 13330, subd. (b).) Code of Civil Procedure
section 1094.5, our state’s administrative mandamus
provision, provides the procedure for judicial review of
adjudicatory decisions rendered by administrative
agencies (Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506, 514, 113
Cal.Rptr. 836, 522 P.2d 12) and governs challenges to
regional board orders. (Wat. Code, § 13330, subd. (e)
[“Except as provided in this section, Section 1094.5 of
the Code of Civil Procedure shall govern proceedings
for which petitions are filed pursuant to this section.”].)
“The inquiry in such a case shall extend to the
questions whether the respondent has proceeded
without, or in excess of, jurisdiction; whether there was
a fair trial; and whether there was any prejudicial
abuse of discretion. Abuse of discretion is established
if the respondent has not proceeded in the manner
required by law, the order or decision is not supported
by the findings, or the findings are not supported by
the evidence.” (Code Civil. Proc., § 1094, subd. (b).)
Here, the trial court ultimately concluded the Regional
Board abused its discretion in issuing the CAO and
ACL Order. Because the Regional Board’s consolidated
appeals of the court’s decisions present myriad issues,
each with distinct standards of review, we shall discuss
the governing law and review standards during our
analysis of each respective order.
II.
THE CLEANUP AND ABATEMENT ORDER
The court set aside the CAO on multiple grounds.
Among its reasons, it found the Regional Board
violated the requirements of Water Code section 13267,
the CAO failed to satisfy the criteria for enforcement
App. 52
actions contained in the Porter-Cologne Water Quality
Control Act, and the CAO conflicted with the Suisun
Marsh Preservation Act. The Regional Board contends
none of these reasons have merit. We agree.
A. CAO Standard of Review
The parties do not dispute the applicable standards of
review for the CAO. Nor do we. Pursuant to Water
Code section 13330, subdivision (e), the independent
judgment standard applies to the trial court’s review of
a cleanup and abatement order. (See Tesoro Refining &
Marketing Co. LLC v. Los Angeles Regional Water
Quality Control Bd. (2019) 42 Cal.App.5th 453,
466–467, 255 Cal.Rptr.3d 343 [“Section 13330,
subdivision (e) requires the trial court to exercise its
independent judgment in reviewing the CAO issued by
the Regional Board.”].)
Under the independent judgment standard, “ ‘the trial
court begins its review with a presumption that the
administrative findings are correct[.] [I]t does not defer
to the fact finder below and accept its findings
whenever substantial evidence supports them. Instead,
it must weigh all the evidence for itself and make its
own decision about which party’s position is supported
by a preponderance. [Citation.] The question is not
whether any rational fact finder could make the finding
below, but whether the reviewing court believed the
finding actually was correct.’ ” (Coastal Environmental
Rights Foundation v. California Regional Water
Quality Control Bd. (2017) 12 Cal.App.5th 178, 187,
218 Cal.Rptr.3d 596 (Foundation); see also Fukuda v.
City of Angels (1999) 20 Cal.4th 805, 817, 85
Cal.Rptr.2d 696, 977 P.2d 693 (Fukuda) [under
App. 53
independent judgment standard a trial court must
afford a strong presumption of correctness concerning
the administrative findings].) “[T]he party challenging
the administrative decision bears the burden of
convincing the court that the administrative findings
are contrary to the weight of the evidence.” (Fukuda, at
p. 817, 85 Cal.Rptr.2d 696, 977 P.2d 693.)
There is also no dispute about the standard of review
we must employ on appeal. The parties agree that on
factual matters, this court reviews the trial court’s
decision on the CAO for substantial evidence
supporting the trial court’s findings. We, too, agree.
(See Fukuda, supra, 20 Cal.4th at p. 824, 85
Cal.Rptr.2d 696, 977 P.2d 693 [“Where, ‘as here, the
trial court is required to review an administrative
decision under the independent judgment standard of
review, the standard of review on appeal of the trial
court’s determination is the substantial evidence
test.’ ”].)
“In substantial evidence review, the reviewing court
defers to the factual findings made below. It does not
weigh the evidence presented by both parties to
determine whose position is favored by a
preponderance. Instead, it determines whether the
evidence the prevailing party presented was
substantial—or, as it is often put, whether any rational
finder of fact could have made the finding that was
made below. If so, the decision must stand.” (Alberda v.
Board of Retirement of Fresno County Employees’
Retirement Assn. (2013) 214 Cal.App.4th 426, 435, 153
Cal.Rptr.3d 823 (Alberda), italics omitted.)
App. 54
Also, the parties agree, as do we, that we review issues
of law de novo. (Foundation, supra, 12 Cal.App.5th at
p. 190, 218 Cal.Rptr.3d 596.) “We are not bound by the
legal determinations made by the state or regional
agencies or by the trial court. [Citation.] But we must
give appropriate consideration to an administrative
agency’s expertise underlying its interpretation of an
applicable statute. (Building Industry Assn. of San
Diego County v. State Water Resources Control Bd.
(2004) 124 Cal.App.4th 866, 879, 22 Cal.Rptr.3d 128
(Building Industry).)
B. The Porter-Cologne
Control Act
Water
Quality
The Porter-Cologne Water Quality Control Act (PorterCologne or the Porter-Cologne Act) (Wat. Code, § 13000
et seq.) expresses the public’s “primary interest in the
conservation, control, and utilization of the water
resources of the state,” and intends to advance that
interest by ensuring the protection of the “quality of all
the waters of the state” for the public’s use and
enjoyment. (Wat. Code, § 13000.) Porter-Cologne was
enacted in order “to attain the highest water quality
which is reasonable, considering all demands being
made and to be made on those waters and the total
values involved, beneficial and detrimental, economic
and social, tangible and intangible.” (Wat. Code,
§ 13000; City of Burbank v. State Water Resources
Control Bd. (2005) 35 Cal.4th 613, 619, 26 Cal.Rptr.3d
304, 108 P.3d 862.)
The Porter-Cologne Act recognizes that the protection
of water quality can best be accomplished by statewide
regulation with regional administration. Thus, under
App. 55
the act, the State Water Resources Control Board
(State Board) and nine regional boards are the
principal state agencies charged with enforcing state
water pollution law. (See WaterKeepers Northern
California v. State Water Resources Control Bd. (2002)
102 Cal.App.4th 1448, 1452, 126 Cal.Rptr.2d 389.)
Each of the nine regional boards has a responsibility to
“formulate and adopt water quality control plans”
within their region and, through those plans establish
water quality objectives that will “ensure the
reasonable protection of beneficial uses [of waters of
the state] and the prevention of nuisance.” (Wat. Code,
§§ 13200, 13240–13241.) The regional board that issued
the CAO here oversees the San Francisco Bay Region,
and it adopted the Basin Plan as its water quality
control plan under the Porter-Cologne Act. The Board
found Respondents violated the Basin Plan and PorterCologne.
In addition, through Porter-Cologne, the regional
boards implement the federal Clean Water Act (33
U.S.C. § 1251 et seq.). (Conway v. State Water
Resources Control Bd. (2015) 235 Cal.App.4th 671, 675,
185 Cal.Rptr.3d 490.) The Clean Water Act prohibits
the discharge of pollutants into any waters of the
United States without a permit. (33 U.S.C. § 1311.)
1. Regional Board Investigation Under
Section 13267
Porter-Cologne includes Water Code section 13267
(Section 13267). This provision authorizes a regional
board to investigate the quality of the waters of the
state within the region subject to its authority. (Wat.
Code, § 13267, subd. (a).) The Regional Board’s
App. 56
investigative power includes the right to ask anyone
who has discharged waste that could affect the quality
of waters of the state to provide the water board
“technical or monitoring program reports” under
penalty of perjury. (Wat. Code, § 13267, subd. (b)(1).)
Section 13267 states: “The burden, including costs, of
these reports shall bear a reasonable relationship to
the need for the report and the benefits to be obtained
from the reports. In requiring those reports, the
regional board shall provide the person with a written
explanation with regard to the need for the reports,
and shall identify the evidence that supports requiring
that person to provide the reports.” (Wat. Code,
§ 13267.)
The trial court set aside the CAO for the Board’s failure
to comply with the requirements of Section 13267. The
court reasoned the CAO had only “a conclusory
statement asserting that it complie[d] with § 13267,
but [did] not include the written explanation or
otherwise explain why the burden bears a reasonable
relationship to the need.” The Regional Board contends
the court misinterpreted the duty imposed by Section
13267 and there was no violation of Section 13267 that
would warrant setting aside the order.
The parties have not cited, nor have we found, any case
that construes the requirements of Section 13267.
Regardless, its plain language makes clear that in
order to require a discharger to provide the Board with
any technical report, the Board must (1) provide “a
written explanation with regard to the need for the
reports;” and (2) “identify the evidence that supports
App. 57
requiring that person to provide the reports.” (Wat.
Code, § 13267.)
Here, the CAO explained the need for the reports and
identified the evidence supporting the Board’s demand.
The CAO included dozens of findings to explain the
need for the technical reports. The Board concluded
Sweeney had engaged in numerous unauthorized
activities at the Site related to his unauthorized levee
construction. The Board found these unauthorized
construction activities removed crucial tidal flow to the
Site’s interior, and caused its tidal marsh areas to dry
out and vegetation to die off. The Board found
Sweeney, without authorization, discharged fill
material into tidal waters at the Site. It further found
Sweeney’s unauthorized activities “adversely impacted
beneficial uses at the Site including estuarine habitat,
fish migration, preservation of rare and endangered
species, fish spawning, wildlife habitat, and
commercial and sport fishing.” These findings were the
basis for the Regional Board requirement that
Respondents “submit technical reports and undertake
corrective action to clean up the waste discharged and
abate its effects.” They also served as the basis for its
determination that “[t]he burden of preparing technical
reports required pursuant to section 13267, including
costs, bears a reasonable relationship to the need for
the reports and the benefits to be obtained from the
reports, namely the restoration of beneficial uses at the
Site.” Accordingly, the CAO provided Respondents with
an adequate “written explanation regarding the need
for technical reports,” and it “identif[ied] the evidence
that support[ed] requiring that person to provide the
reports.” Nothing more was required under Section
App. 58
13267, and the trial court erred in concluding
otherwise.
Even if the Board was not required under Section
13267 to conduct a formal cost-benefit analysis before
seeking the reports, Respondents argue there was
nothing in the record about the burden of producing the
reports, and “nothing comparing the burden to the
benefits.” They say the CAO violated Section 13267 for
this reason because it failed to provide sufficient
evidence to support its conclusion that the reports bear
a reasonable relationship to the need for them and the
benefits to be obtained from them. Not so. We recognize
that Section 13627 requires the burden of conducting
site investigations and producing reports to be
reasonable in light of the benefits to be obtained. But
Section 13267 contains no requirement that a CAO
include any type of weighing or cost-benefit analysis. A
plain reading of the CAO shows that the Regional
Board was aware of the requirement that the burden of
reports be proportional to their anticipated benefit.
Even a brief review of the descriptions of the technical
reports ordered by the Board indicates as much. For
example, one report ordered was a “Point Buckler
Restoration Plan” which was to set forth the “corrective
actions designed to restore .. the water quality
functions and value of the tidal marsh ... existing prior
to [Respondents’] unauthorized activities.” The Board’s
findings warrant the inference that the Board
understood the burden of preparing such reports were
reasonably related to the benefits it aimed to
accomplish, namely, the restoration of beneficial uses
at the Site.
App. 59
Voices of the Wetlands v. State Water Resources Control
Board (2011) 52 Cal.4th 499, 128 Cal.Rptr.3d 658, 257
P.3d 81, cited by both the trial court and Respondents
in support of their argument on this point, does not
apply. That case discussed the cost-benefit analysis of
a project required under section 316(b) of the Clean
Water Act (33 U.S.C. § 1326(b)). (Id. at p. 507, 128
Cal.Rptr.3d 658, 257 P.3d 81.) It requires that “the
location, design, construction, and capacity of cooling
water intake structures reflect the best technology
available for minimizing adverse environmental
impact.” (Id. at pp. 507–508, 128 Cal.Rptr.3d 658, 257
P.3d 81; see also 33 U.S.C. § 1326(b).) The case has
nothing to do with the Regional Board’s requirements
for ordering technical reports under Section 13267.
2. Regional Board Enforcement Action
Under Section 13304(a)
When a regional board discovers a potential violation
of Porter Cologne or the Clean Water Act, it can pursue
an enforcement action. One of its tools is issuance of a
cleanup and abatement order requiring the violator to
develop and execute a remedial plan. Water Code
section 13304, subdivision (a) (Section 13304(a))
establishes a regional board’s authority to issue a
cleanup and abatement order to any person “who has
caused or permitted, causes or permits, or threatens to
cause or permit any waste to be discharged or
deposited where it is, or probably will be, discharged
into the waters of the state and creates, or threatens to
create, a condition of pollution or nuisance.” (Wat.
Code, § 13304, subd. (a).) Upon order of a regional
board, the discharger shall “clean up the waste or abate
App. 60
the effects of the waste, or, in the case of threatened
pollution or nuisance, take other necessary remedial
action.” (Wat. Code, § 13304, subd. (a).)
The trial court found the conditions for issuing a CAO
were not satisfied. As we will explain, the trial court
erred. It either drew erroneous conclusions on issues of
law, or its factual findings were unsupported by
substantial evidence.
a. Waste
The trial court concluded that Respondents did not
discharge “waste” as the term is used in Section
13304(a). In the trial court’s view, the “dirt used to
repair the levee” was not waste but rather “a valuable
building material, not something discarded as
worthless or useless.” We conclude the trial court
employed an overly restrictive interpretation of the
term “waste” as it is used in Section 13304(a) to
conclude the requirements for a cleanup and
abatement order under Porter-Cologne were not met.
Because the Porter-Cologne Act is a law “ ‘providing for
the conservation of natural resources,’ ” it is “ ‘of great
remedial and public importance and thus should be
construed liberally’ [citation] so as to promote the
general object sought to be accomplished.” (Coastside
Fishing Club v. California Resources Agency (2008) 158
Cal.App.4th 1183, 1202, 71 Cal.Rptr.3d 87; United
Artists Theatre Circuit, Inc. v. California Regional
Water Quality Control Bd. (2019) 42 Cal.App.5th 851,
866–867, 255 Cal.Rptr.3d 796; cf. County of Los Angeles
v. State Water Resources Control Bd. (2006) 143
Cal.App.4th 985, 50 Cal.Rptr.3d 619 [court defers to
App. 61
regional board expertise in construing language which
is not clearly defined in statutes].)
Porter-Cologne defines “waste” as “sewage and any and
all other waste substances, liquid, solid, gaseous or
radioactive, associated with human habitation, or of
human or animal origin, or from any producing,
manufacturing, or processing operation of whatever
nature prior to, and for purposes of, disposal.” (Wat.
Code, § 13050, subd. (d).) Here, the parties do not
dispute what fill material was used to reconstruct the
levees at the site. Respondents used spoils from
trenches excavated at the site to build up the levees.
Accordingly, whether reconstruction of the levees
involved the discharge of waste is a legal issue we
review de novo.
A leading case construing the term “waste” under
Porter-Cologne is Lake Madrone Water Dist. v. State
Water Resources Control Bd. (1989) 209 Cal.App.3d
163, 256 Cal.Rptr. 894 (Lake Madrone). There, a State
Board abatement order required a dam operator to
refrain from flushing accumulated sediment into a
creek and to submit a plan for its cleanup. (Id. at p.
167, 256 Cal.Rptr. 894.) The released sediment was
deposited in the creek up to 18 inches deep, and
“chok[ed] [the creek’s] pools and shoreline ... clogging
its spawning areas so heavily as to destroy fish and
aquatic life.” (Id. at p. 166, 256 Cal.Rptr. 894.) The dam
operator challenged the State Board’s view that the
accumulated sediment passing through the dam’s gate
valve was “waste” within the meaning of PorterCologne. (Id. at pp. 168–169, 256 Cal.Rptr. 894.) Citing
the legislative intent behind Porter-Cologne and prior
App. 62
Attorney General Opinions,2 the court concluded,
“There is no doubt that concentrated silt or sediment
associated with human habitation and harmful to the
aquatic environment is ‘waste’ under the statute.” (Id.
at p. 169, 256 Cal.Rptr. 894.) Acknowledging the silt
was “innocuous in its unconcentrated form,” it
explained that “by furnishing a man-made artificial
location for its concentration, the innocuous substance
[was] changed into one ... deadly to aquatic life.” (Id. at
pp. 169–170, 256 Cal.Rptr. 894.) It found the
concentrated sediment clogging the creek associated
with human habitation, as well. (Ibid.)
Here, there is no dispute that Respondents used the fill
material to replace a breached levee in order to
facilitate kiteboarding or duck hunting club purposes.
Thus, the act of placing the fill in tidal marsh and tidal
waters associated the fill material with human
habitation and activities. Even though there is no claim
that the fill material was contaminated or harmful in
a general sense, it was harmful as used in
reconstructing the levee in tidal wetlands.
Respondents’ discharge of fill material resulted in
excess sedimentation that smothered estuarine habitat,
blocked tidal flows and direct overland tidal flooding,
restricted the beneficial uses of habitat by fish and
endangered and rare species, caused the dieback of
2
The Regional Board requests we take judicial notice of the
following two Attorney General Opinions: 27 Ops.Cal.Atty.Gen.
182 (No. 55-236, March 30, 1956) and 63 Ops.Cal.Atty.Gen. 51 (No.
79-906, January 25, 1980) [1980 WL 96799], both of which were
cited in Lake Madrone, supra, 209 Cal.App.3d 163, 256 Cal.Rptr.
894. (See id. at p. 170, 256 Cal.Rptr. 894.) Respondents do not
oppose these requests. We grant them.
App. 63
tidal marsh vegetation, degraded habitat for waterfowl,
and resulted in excessive salinity, turbidity and
discoloration of the Site’s interior waterways.
In exercising its independent review, the trial court
found the fill material created no such harm and
agreed with Respondents that their levee work did not
“unreasonably affect beneficial uses.” But this finding
was not supported by substantial evidence as no
rational fact finder could have reached such a decision
on the basis of the evidence in the administrative
record. When the Board responded to Respondents’
opposition to the tentative cleanup and abatement
order, the Board’s evidence demonstrated that the Site
had been a tidal marsh before the levee repair. The
Board’s expert identified the harms resulting from
converting the Site from tidal marsh to a largely dry
island. There were adverse impacts to the vegetation
and soil on the island. The Technical Report
documented “a mass dieback” of marsh vegetation
throughout the diked interior of the island resulting in
“growth-inhibited marsh vegetation.” The Board’s
expert also presented evidence of harm to wildlife that
occurred because the levee cut off tidal connectivity to
the island. Suisun Bay including the Site was
designated critical habitat for Delta smelt and Chinook
salmon, and the drainage and diking of the Site risked
reductions in food and precluded access to tidal
channels for foraging. This evidence of harm associated
with Respondents’ use of the fill material made it
“waste” within the meaning of Porter-Cologne. Our
interpretation aligns with the intent behind PorterCologne to preserve natural resources and protect the
environment. (Cf. Lake Madrone, supra, 209
App. 64
Cal.App.3d at p. 169, 256 Cal.Rptr. 894 [observing that
waste could encompass discharged fine-grained
materials into a stream used for fishing and fish
spawning if fishery were adversely affected].)3
Respondents seek to distinguish Lake Madrone based
on the value of the fill material which they used to
make “a valuable improvement to the property,” in
contrast to the sediment flow released from the dam in
that case, noting the sediment “was of no value to the
dam operators, who were discarding it as valueless.”
The trial court agreed, albeit incorrectly, that the fill
material could not be waste because it was being used
as a valuable building material and not “something
discarded as abandoned or useless.” But the fact that
a particular material may have commercial value does
not preclude it from being waste under the PorterCologne Act. We follow Lake Madrone which clearly
instructs that Porter-Cologne does not require “waste”
to be sewage or some sort of worthless byproduct. Its
characterization did not turn on the purported value of
the discharged material but rather the harm it caused
3
The Regional Board requests we take judicial notice of the
following orders: State Water Resources Control Board Order No.
WQ 77-5, State Water Resources Control Board Water Quality
Order No. 2004-004-DWQ. They contend these orders are relevant
to the issue of whether earthen materials, dredge or fill material,
or sediment constitutes waste under Porter-Cologne. Respondents
oppose these requests. We deny the Regional Board’s requests as
to these matters because they are unnecessary to resolve the
issues before us. (See Mangini v. R.J. Reynolds Tobacco Co. (1994)
7 Cal.4th 1057, 1063, 31 Cal.Rptr.2d 358, 875 P.2d 73 (Mangini)
[“ ‘Matters otherwise subject to judicial notice must be relevant to
an issue in the action.’ ”].)
App. 65
to the environment. (See Lake Madrone, supra, 209
Cal.App.3d at p. 170, 256 Cal.Rptr. 894.) Thus, despite
the seemingly benign character of the fill material used
by Respondents, it could still be waste if it was harmful
when used to repair the levee.
Waste Management of the Desert, Inc. v. Palm Springs
Recycling Center, Inc. (1994) 7 Cal.4th 478, 28
Cal.Rptr.2d 461, 869 P.2d 440, cited by Respondents for
the proposition that the fill used here cannot be waste
because it was useful material intentionally deposited,
is also distinguishable. There, our Supreme Court
interpreted the definition of “solid waste” in the
California Integrated Waste Management Act (Pub.
Resources Code, § 40191), a statute that addresses
whether the owner of recyclable materials could sell
them to someone other than “the exclusive franchisee”
selected by a city to provide “solid waste handling
services.” (Id. at p. 481, 28 Cal.Rptr.2d 461, 869 P.2d
440.) In that context, whether the recyclable materials
could be considered waste turned on whether the owner
of the materials elected to sell them as recyclables
rather than just throw them away. (Id. at p. 486, 28
Cal.Rptr.2d 461, 869 P.2d 440.) The court concluded
that recyclables were not waste until they were
actually discarded. (Id. at p. 484, 28 Cal.Rptr.2d 461,
869 P.2d 440.) We decline to define “waste” as the term
is used in Porter-Cologne based upon whether a
material is worthless or useless in an economic sense
from the owner’s perspective. Such a construction
would not be consistent with the policy of
environmental protection that is to animate the PorterCologne Act.
App. 66
The federal district court opinion Respondents cite,
Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency (D.Nev. 1999) 34 F.Supp.2d
1226, 1254, is neither controlling nor applicable. There,
the court acknowledged “waste” could include sediment
generated during home construction. (Id. at pp.
1251–1254.) Its holding was that the act of building
houses was not a “discharge” or “disposal” of waste that
could create a nuisance. (Ibid.) The district court never
concluded that fill material was not waste, and its
holding has no bearing on the question before us.
Respondents’ final argument on this point is that the
Corps has opined that the “definition of waste does not
include discharges of dredge or fill material.” We are
not persuaded. The Corps opinion Respondents rely
upon was made in a comment letter from an official in
a regional Corps office to the State Board. As such, it
lacks the force of law and does not warrant any
deference. (Christensen v. Harris County (2000) 529
U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621
[interpretations contained in an opinion letter lack
force of law and do not warrant deference]).4
4
We are also not persuaded that the opinion presents the official
position of the Corps, since it is inconsistent with its frequently
enforced and longstanding position that discharged sediment
constitute “pollutants” under the Clean Water Act. (See, e.g.,
Borden Ranch Partnership v. U.S. Army Corps of Engineers (9th
Cir. 2001) 261 F.3d 810, 814–815, aff’d 537 U.S. 99, 123 S.Ct. 599,
154 L.Ed.2d 508 (2002); Rybachek v. U.S. E.P.A. (9th Cir. 1990)
904 F.2d 1276, 1285-1286; United States v. Deaton (4th Cir.2000)
209 F.3d 331, 335-336.) Indeed, the Corps reached that conclusion
with respect to the fill material Respondents used here. Following
the October 2015 Site inspection, the Corps prepared a record
App. 67
For the aforementioned reasons, we also decline the
invitation of amicus to hold that the definition of waste
cannot include earthen material such as soil, sand and
gravel. As the authorities make clear, it is not the
character of a material that makes a substance, organic
or otherwise, waste under Porter-Cologne, it is the uses
to which the material is employed. Moreover, not all fill
material is created equal or suitable for all purposes,
and approved wetland fill may require specific
properties. (Cf. Sierra Club v. U.S. Army Corps of
Engineers (11th Cir. 2007) 508 F.3d 1332, 1336.)
b. Discharge
The trial court also concluded Respondents’ activities
did not constitute “discharges” under Porter-Cologne.
Because the term “discharge” is not defined in PorterCologne, the trial court relied on dictionary definitions
of “discharge” that stated the term meant “[t]o allow (a
liquid, gas, or other substance) to flow out from where
it has been confined,” “to give outlet or vent to,” and
“[to] emit.” The court concluded that in its ordinary
meaning, “ ‘discharge’ ... does not include a removal.” It
observed that “[a]mong the unauthorized activities”
identified in the CAO were “the excavation of ditches
and the removal of vegetation.” As the court concluded
these removals of fill material were not “discharges”
memorandum which stated, “Field findings confirmed that an
unauthorized discharge of fill had occurred within waters of the
U.S.” under the Clean Water Act. On that basis, the United States
sued Respondents, and the trial court found the fill material
Respondents were pollutants under the Clean Water Act. (See
Sweeney District Court Opinion, supra, 483 F.Supp.3d at pp. 91116.)
App. 68
within the meaning of Porter-Cologne, the Board had
no authority to regulate Respondents’ activities under
the CAO.
The parties do not dispute this common sense meaning
of “discharge” as applied to Porter-Cologne, and neither
do we. Rather, whether this element of the statute was
met does not present a legal issue but a factual one.
Factually, the court erred. Its decision impliedly found
that the only activities regulated under the CAO were
Respondents’ excavation of ditches and removal of
vegetation. However, no rational fact finder could have
made such a finding. Indeed, the court readily
acknowledged that ditch excavation and vegetation
removal were “[a]mong the unauthorized activities”
identified in the CAO. (Emphasis added.) Numerous
activities not addressed by the trial court qualified as
discharges. In their response to the 2015 CAO,
Respondents acknowledged they placed fill materials
into waters at the Site in constructing and replacing
the levees. Sweeney admitted discharges by stating the
following in his declaration accompanying Respondents’
challenge to the tentative cleanup and abatement
order: “I dug out material from an artificial ditch inside
the levee and placed the material on the existing levee.
Some material was placed where the levee had been
breached ...” The trial court’s conclusion that there
were no discharges at the Site because the
unauthorized activities consisted solely of removals of
fill material was error because it completely
disregarded the evidence and significance of discharges
of large amounts of fill to build and replace levees.
App. 69
c. Waters of the State
The trial court also concluded the Board’s issuance of
the CAO did not satisfy the requirement under PorterCologne that Respondents’ waste be discharged into
“waters of the state.” The court found the Regional
Board’s consultants were not credible because they
initially said the Site interior was inundated with tides
on a daily basis but changed their positions when
Sweeney testified that he had never seen the interior
inundated, except for water in the channels and
ditches. The trial court also found “the interior of the
[Site] (except for the channels and ditches) was dry
land rather than waters of the state,” and that most of
Respondents’ work occurred on dry land. Again, the
court erred.
Porter-Cologne defines “waters of the state” as “any
surface water or groundwater, including saline waters,
within the boundaries of the state.” (Water Code,
§ 13050, subd. (e).) There is no real dispute that a
significant portion of Respondents’ discharges of fill
material occurred in waters of the state. The trial
court’s finding that “the interior of the island (except
for the channels and ditches) was dry land rather than
waters of the states” recognizes that the Site’s
“channels and ditches” were bodies of water. These
were waters of the state. Respondents do not disagree.
Respondents’ Brief addresses the Regional Board’s
contentions on this point under the heading “Most
Activities Were Not In ‘Waters of the State.’ ” We
consider this an acknowledgement that at least some of
Respondents’ activities were in waters subject to
Porter-Cologne jurisdiction. Nor do Respondents
App. 70
dispute the Board’s expert opinion that the island’s
channels and ditches were subject to daily tidal action,
thus refuting any finding that the Site consisted of only
dry land. We do not see how Respondents could
credibly claim that repair and replacement of segments
of the outer levee and restriction of tidal flow into some
areas of the Site did not occur in waters of the state.
Because significant waters of the state were affected by
Respondents’ activities, this element of Porter-Cologne
was satisfied, and the trial court’s decision to set aside
the CAO on this ground was erroneous.
d. Condition of Pollution
Finally, the trial court concluded Respondents’
activities did not create a “condition of pollution” at the
Site under Porter-Cologne. As we discussed in our
analysis of the “waste” element, the trial court rejected
the Regional Board’s finding that Respondents’ levee
work unreasonably altered water quality so as to alter
beneficial uses of the water at the Site, and found there
was no direct evidence of harm to the environment.
Accordingly, it concluded Respondents’ levee work “did
not unreasonably affect beneficial uses.” The trial court
went on to find the levee work actually promoted the
beneficial uses of the Site’s waters by aiding in the
restoration of functioning duck ponds. Again, the court
made factual and legal errors.
Factually, the findings of no harm to beneficial uses at
the Site were unsupported by substantial evidence as
no rational trier of fact could have reached that
conclusion as we explained in Section II.B.2.a., ante.
App. 71
Legally, the court construed the “condition of pollution”
element of Porter-Cologne far too narrowly. A regional
board is authorized to issue a cleanup and abatement
order to a discharger who “creates, or threatens to
create, a condition of pollution or nuisance.” (Wat.
Code, § 13304, subd. (e).) “Condition of pollution” is
defined as “an alteration of the quality of the waters of
the state by waste to a degree which unreasonably
affects the waters for beneficial uses.” (Wat. Code,
§ 13050, subd. (l)(1).)
Notably, under Section 13304(a), a cleanup and
abatement order can be issued when the discharger
“creates” a pollution condition or “threatens to create” a
condition of pollution. (Wat. Code, § 13304, subd. (a),
emphasis added.) Under the court’s interpretation, the
CAO could only issue if Respondents’ waste created or
was creating a condition of pollution. The court found
“the levee work did not unreasonably affect” waters for
beneficial uses and “the asserted harm to fish was
unquantified and uncertain,” so it set the CAO aside.
The trial court’s statutory analysis failed to recognize
that threat of a condition of pollution can justify
issuance of a cleanup and abatement order. (See Wat.
Code, § 13304, subd. (a), (e).) Even if we were to accept
the court’s finding that the “asserted harm to fish was
unquantified and uncertain,” the finding would not
conflict with issuance of the CAO so long as
Respondents’ discharges threatened to create a
condition of pollution. There was ample evidence in the
Board expert’s Technical Assessment and response to
Respondents’ submissions of likely, potential, or
threatened harm to habitat and species that the trial
court could not legitimately disregard. On this basis
App. 72
Porter-Cologne was satisfied, and the trial court’s
decision to set aside the CAO because there was no
showing of a condition of pollution was erroneous.
The Regional Board also argues the trial court
committed legal error by disregarding an independent
basis for upholding the CAO unrelated to the “condition
of pollution” element in Section 13304(a). Read fully,
the Board argues that Water Code section 13304,
subdivision (a) also allows a regional board to issue a
cleanup and abatement order when discharges of waste
into jurisdictional waters occur “in violation of [a]
waste discharge requirement or other order or
prohibition issued by a regional board or the state
board.” (Wat. Code, § 13304, subd. (a).) The Regional
Board contends Respondents’ violation of a discharge
prohibition in the Basin Plan independently justified
the CAO. In light of the conclusions we reach on the
CAO, we need not consider this argument for purposes
of our CAO analysis.5
C. Suisun Marsh Preservation Act
In 1977, the Legislature enacted the Suisun Marsh
Preservation Act (Preservation Act or Act), codified in
Division 19 of the Public Resources Code. The
5
The Regional Board requests we take judicial notice of Regional
Water Board Cleanup and Abatement Order No. R2-2017-1021 and
Regional Water Board Cleanup and Abatement Order No. R22016-1038. They contend these orders are other issues related to
the Regional Board’s authority to issue the CAO. Respondents
oppose these requests. We deny the Regional Board’s requests as
to these matters because they are unnecessary to resolve the
issues before us. (See Mangini, supra, 7 Cal.4th at p. 1063, 31
Cal.Rptr.2d 358, 875 P.2d 73.)
App. 73
Preservation Act protects valuable natural resources
within the Suisun Marsh, and charges BCDC with the
ultimate authority over its implementation. (Pub.
Resources Code, § 29000 et seq.; see also
Sustainability, Parks, Recycling & Wildlife Legal
Defense Fund v. San Francisco Bay Conservation and
Development Commission (2014) 226 Cal.App.4th 905,
915–916, 172 Cal.Rptr.3d 110.) As directed under the
Act, BCDC prepared and adopted the Suisun Marsh
Protection Plan (Protection Plan) to “preserve the
integrity and assure continued wildlife use of the
Suisun Marsh.” (Pub. Resources Code, § 29113, subd.
(a).) The Protection Plan was intended to “preserve and
enhance the quality and diversity of the Suisun Marsh
aquatic and wildlife habitats and to assure retention of
upland areas adjacent to the Marsh in uses compatible
with its protection.” (BCDC, Protection Plan (Dec.
1976)<https://www.bcdc.ca.gov/plans/suisun_marsh.h
tml> [as of Feb 18, 2021] (SMPP).)6 Section 29302,
subdivision (a) (Section 29302(a)) of the Preservation
Act “imposes a judicially enforceable duty on state
agencies to comply with, and to carry out their duties
and responsibilities in conformity with, this division
and the policies of the protection plan.” (Pub. Resources
Code, § 29302, subd. (a).) The trial court concluded the
Preservation Act imposed a restraint on the Board’s
authority and that the Board failed to “act[ ] in
conformity with the Preservation Act and the policies
of the Protection Plan” in violation of Section 29302(a)
when it issued the CAO. It reached this conclusion
6
We take judicial notice on our motion of the Protection Plan.
(Evid. Code, § 452, subdivision (c).)
App. 74
after finding Respondents’ ” levee and excavation work
was done to restore the duck ponds at Point Buckler
and provide waterfowl with food and habitat, and that
[both orders] harm[ ] waterfowl and their food supply
and habitat by prohibiting [Respondents] from
repairing the levee, establishing duck ponds, and
planting duck food.”
In issuing the CAO, the trial court determined the
Board undermined the policy and intent of the
Protection Plan to preserve and protect duck hunting
clubs as a legitimate use for wetlands, thus, according
to the trial court, the CAO was invalid. It made no
matter to the trial court that the CAO could also be
authorized under Porter-Cologne. In the trial court’s
view, Porter-Cologne’s remedial directives should have
been harmonized to account for the preference for duck
clubs expressed in the Protection Plan and thereby
comply with Section 29302(a). The court made a point
of observing, “[T]he Regional Board can comply with
the requirements of the Preservation Act without
violating the Porter Cologne Act, and that the two
statutes are not in conflict here.”
The Regional Board contends issuance of the CAO did
not violate the Preservation Act. The Board first argues
that the court’s ruling is based upon a misreading of
the Act. The Board argues that in context, Section
29302(a) does not apply to enforcement actions taken
by state agencies under authorizing provisions of state
law. We agree. A reading of Section 29302(a) in context
confirms that it applies to agency development or
control over wetlands, not an agency’s exercise of police
power. While subsection (a) provides that agencies
App. 75
must act in conformity with the Preservation Act,
subsection (b) exempts agencies from the permit
process for wetland development and subsection (c)
exempts agencies from specific water quality standards
or delta outflow requirements. (Pub. Resources Code,
§ 29302, subds. (a), (b), (c).) Moreover, section 29301
makes clear that the Preservation Act “does not
increase, decrease, duplicate, or supersede the
authority of any existing state agency.” (Pub. Resources
Code, § 29301.) As part of the same statutory scheme,
section 29301 and 29302 should be read together and
each section given its intended meaning and operable
effect. (See Sangster v. California Horse Racing Bd.
(1988) 202 Cal.App.3d 1033, 1039, fn. 10, 249 Cal.Rptr.
235 [noting “settled principle” that “ ‘[f]or purposes of
statutory construction, the various pertinent sections
of [the statute] must be read together and harmonized
if possible’ ”].) A proper reading of Section 29302 makes
clear that it has no impact on the regulatory authority
of the Board over wetlands, and it should not have been
relied upon by the trial court to invalidate the CAO.
But even if Respondents are correct that the Board’s
enforcement actions were subject to the Preservation
Act, there still would be no violation. The trial court’s
conclusion that the Preservation Act and PorterCologne are not in conflict was correct as far as it goes.
But as we will explain, the court’s ruling that the
Regional Board “failed to act in conformity with the
Preservation Act and policies of the Protection Plan”
was error.
The trial court’s conclusion was premised, in part, on
its view that the Regional Board’s regulatory authority
App. 76
over illegal discharges in the marsh was constrained by
the Preservation Act, and that the Act exempted
Respondents from compliance with other pollution
laws. Section 29301 of the Preservation Act makes
clear neither is the case. It states, “Except as otherwise
expressly provided in this division, enactment of this
division does not increase, decrease, duplicate, or
supersede the authority of any existing state agency.”
(Pub. Resources Code, § 29301, emphasis added.) The
trial court did not consider the effect of section 29301,
and Respondents have not identified any provision in
the Preservation Act which expressly changes the
authority of the Regional Board, nor have we.
Section 29006, subdivision (c) of the Act supports our
view of the Board’s authority. It states: “No provision
of [the Preservation Act] is a limitation on ... the power
of the Attorney General to bring an action in the name
of the people of the state on his own motion or at the
request of any state agency having standing under
provisions of law other than this division, to enjoin any
waste or pollution of the marsh.” (Pub. Resources Code,
§ 29006, subd. (c).) Thus, the Preservation Act allows
the Attorney General, at the Regional Board’s request,
to pursue actions to stop pollution of wetlands. Indeed,
the Attorney General’s cross-complaint against
Respondents to enforce the CAO is an exercise of such
authority.
Nor does the Preservation Act exempt Respondents
from compliance with other water quality laws
including Porter-Cologne and the Clean Water Act.
Section 29500 of the Preservation Act establishes that
any entity seeking to undertake a development project
App. 77
in the marsh “shall obtain a marsh development
permit,” which is “[i]n addition to obtaining any other
permit required by law from any local government or
from a state, regional, or local agency.” (Pub. Resources
Code, § 29500, emphasis added.) This is another
provision of the act that does not appear to have been
considered by the trial court.
Respondents have not identified any provision in the
Preservation Act that impairs the Regional Board’s
authority to require discharge permits, or to bring
enforcement actions to curtail or remediate unlawful
discharges.
Since it is clear the Preservation Act does not undercut
the Regional Board’s regulatory authority, we will
address the “judicially enforceable duty” the trial court
concluded Section 29302(a) imposes on state agencies.
The trial court’s finding that Respondents’ ” levee and
excavation work was done to restore duck ponds at [the
Site] and provide waterfowl with food and habitat” and
that the CAO “harmed waterfowl and their food supply
and habitat by prohibiting [Respondents] from
repairing the levee, establishing duck ponds, and
planting duck food” demonstrated the court’s view that
the Preservation Act favored the restoration of duck
hunting clubs over any other purposes that were
intended to be served when the Regional Board issued
the CAO. According to the trial court, by issuing a CAO
which undermined duck habitat restoration and
therefore harmed waterfowl and their food supply, the
Regional Board failed to comply with its “judicially
enforceable duty” under the Preservation Act. This was
another error. Section 29302(a) does not mandate the
App. 78
Regional Board comply with any enforceable duty
Respondents claim.
“Courts have delineated what is necessary to establish
a mandatory duty. ‘First and foremost, ... the
enactment at issue [must] be obligatory, rather than
merely discretionary or permissive, in its directions to
the public entity; it must require, rather than merely
authorize or permit, that a particular action be taken
or not taken.’ [Citation.] ‘It is not enough, moreover,
that the public entity or officer have been under an
obligation to perform a function if the function itself
involves the exercise of discretion.’ [Citation.]
Moreover, ‘[c]ourts have ... [found] a mandatory duty
only if the enactment “affirmatively imposes the duty
and provides implementing guidelines.” ’ [Citation.]
‘ “ ‘[T]he mandatory nature of the duty must be phrased
in explicit and forceful language.’ [Citation.] ‘It is not
enough that some statute contains mandatory
language. In order to recover plaintiffs have to show
that there is some specific statutory mandate that was
violated by the [public entity].” ’ ” (State Dept. of State
Hospitals v. Superior Court (2015) 61 Cal.4th 339,
348–349, 188 Cal.Rptr.3d 309, 349 P.3d 1013 (State
Hospitals).) Whether a particular statute imposes “a
mandatory duty, rather than a mere obligation to
perform a discretionary function, is a question of
statutory interpretation for the courts.” (Creason v.
Department of Health Services (1998) 18 Cal.4th 623,
631, 76 Cal.Rptr.2d 489, 957 P.2d 1323.)
Section 29302(a) sets forth no mandatory duty
directing state agencies to carry out activities in a
manner favorable to duck hunting clubs. In fact,
App. 79
Section 29302(a) makes no reference to such clubs.
Rather, it provides that state agencies must carry out
their responsibility in conformity with “this division
and the policies of the protection plan.” (Pub. Resources
Code, § 29302.) Such broad language did not impose a
specific mandatory duty on the Regional Board. (See
State Hospitals, supra, 61 Cal.4th at p. 350, 188
Cal.Rptr.3d 309, 349 P.3d 1013 [“A mandatory duty is
created only when an enactment requires an act that is
clearly defined and not left to the public entity’s
discretion or judgment.”].)
Section 29302(a)’s reference to “this division” refers
to the Preservation Act, and the Act does not specify
any mandatory duty or fealty to duck clubs. The
Preservation Act is codified in seven chapters of the
Public Resources Code and consists of scores of
statutory provisions reflecting multiple objectives and
directives for the protection of Suisun Marsh. (See Pub.
Resources Code, §§ 29000–29612.) The trial court did
not identify or discuss any provision in the
Preservation Act that would obligate the Regional
Board to exercise its enforcement authority in a
manner friendly to duck clubs. Respondents suggest
such a duty is imposed by section 29002 of the Act. But
that provision is an all-encompassing statement of
legislative findings7 that describes the marsh and its
7
Public Resources Code section 29002 states in full: “The
Legislature hereby finds and declares that the Suisun Marsh,
consisting of approximately 55,000 acres of marshland and 30,000
acres of bays and sloughs, and comprising almost 10 percent of the
remaining natural wetlands in California, plays an important role
in providing wintering habitat for waterfowl of the Pacific Flyway;
that during years of drought the area becomes particularly
App. 80
role as critical habitat for waterfowl and other wildlife.
(Pub. Resources Code, § 29002.) It states “the policy of
the state to preserve and protect resources of this
nature for the enjoyment of the current and succeeding
generations” but it does not establish a clearly defined
duty that prescribes how a state agency must carry out
its enforcement duties in service of such policies. Nor
does it elevate the preservation of duck hunting clubs
over tidal wetlands or instruct the agency to prioritize
habitat for waterfowl over other wildlife, including
endangered species.
The “policies of the Protection Plan” do not contain
any clearly defined duty to promote duck hunting clubs
to the exclusion of all other Suisun Marsh policies.8
important to waterfowl by virtue of its large expanse of aquatic
habitat and the scarcity of such habitat elsewhere; that the area
provides critical habitat for other wildlife forms, including such
endangered, rare, or unique species as the peregrine falcon, whitetailed kite, golden eagle, California clapper rail, black rail, saltmarsh harvest mouse, and Suisun shrew; that the existence of this
wide variety of wildlife is due to the relatively large expanse of
unbroken native habitat and the diversity of vegetation and
aquatic conditions that prevail in the marsh; that man is an
integral part of the present marsh ecosystem and, to a significant
extent, exercises control over the widespread presence of water and
the abundant source of waterfowl foods; that the Suisun Marsh
represents a unique and irreplaceable resource to the people of the
state and nation; that future residential, commercial, and
industrial developments could adversely affect the wildlife value
of the area; and that it is the policy of the state to preserve and
protect resources of this nature for the enjoyment of the current
and succeeding generations.” (Pub. Resources Code, § 29002.)
8
The “policies of the protection plan,” a defined term, refers to “the
policies set forth in Part II ... of the protection plan.” (Pub.
App. 81
There are more than 50 enumerated policies across a
half dozen areas in the Protection Plan, and there is no
indication that certain policies take precedence over
others. Respondents contend that notwithstanding its
multiple objectives, the Preservation Act “was enacted
to preserve duck clubs and duck habitat.” Respondents
rely on two Plan policies to support this proposition.
First, they cite the “Land Use and Marsh Management”
policy which states “managed wetlands ... should be
included in a primary management area” and within
such area, “existing uses should continue.” They note
that duck clubs are managed wetlands and further
observe certain findings under this policy endorse the
“[p]rovision of habitat attractive to waterfowl” and the
“[i]mprovement of water distribution and levee
systems.” The second policy they cite is a Recreation
and Access policy which states, “Continued recreational
use of privately-owned managed wetlands should be
encouraged.” It is possible that these two policies would
be served by the duck hunting club Respondents
endeavored to restore, but they are not the Protection
Plan’s only policies or anywhere designated as its most
Resources Code, § 291113, (b).) Part II of the Protection Plan sets
forth myriad “Findings and Policies” in several different categories.
For examples, under the category “Environment,” four policies are
enumerated. Under the category “Water Supply and Water
Quality,” twelve distinct policies are identified. Under the category
“Natural Gas Resources,” six policies are listed, one which has four
subsections and another which has ten. The “Utilities, Facilities
and Transportation” has ten policies. The “Recreation and Access”
category list five policies. Under the “Water-Related Industry”
category, there are seven policies. In the “Land Use and Marsh
Management” category, 17 policies are enumerated. (See generally
SMPP, supra.)
App. 82
important ones. Other Plan policies, many of which
appear to have equal value as beneficial uses that
would be served by implementation of the CAO, were
simply not considered by the court. The Plan contains
no directives to state agencies charged with
implementing a statutory scheme that seeks to advance
more than 50 policy objectives that they are to favor
any single objective over any other. Nor is there any
instruction for how state agencies subject to the
Preservation Act are to weigh policies which conflict or
compete with each other. Absent such specific
directives, entities subject to the Plan or charged with
enforcing it are given considerable discretion in how
they carry out their activities in conformity with the
Plan’s policies. The Preservation Act did not impose a
mandatory duty on the Regional Board to follow any
particular policy supportive of duck clubs when
pursuing an enforcement action.
III.
ACL ORDER
The trial court also set aside the ACL Order on
multiple grounds. Among other reasons, it found the
ACL Order violated the Eighth Amendment’s
prohibition against excessive fines, was in conflict with
the Preservation Act, and was the result of a vindictive
prosecution. Throughout its analysis, it found the
Regional Board’s findings were not supported by the
evidence. The Regional Board contends none of these
reasons were valid or justified discarding the ACL
Order, and the assessed penalties were proper. As we
will explain, we agree.
App. 83
A. Standard of Review
In contrast to their agreement on the standards of
review that applied to the CAO, the parties disagree on
the standards of review applicable to the ACL Order.
1. The Trial Court’s Review of ACL
Order
The first dispute focuses on whether the trial court
applied the proper standard in its review of the ACL
Order. The Regional Board asserts that “the trial court
was to review the findings in the [ACL Order] under
the substantial evidence standard” but failed to do so.
Respondents contend that each of the issues they
raised to challenge the ACL Order requires a different
standard of review. They contend “the trial court
should have applied its independent judgment” to
review of the Board’s findings, but acknowledge “the
applicable standard is not clear.” We conclude the trial
court should have reviewed the Regional Board’s
findings for substantial evidence.
As here, when a party challenges a final regional board
order in a petition for writ of mandate under Code of
Civil Procedure section 1094.5, abuse of discretion is
established and a writ of mandate should issue if an
agency either failed to proceed in the manner required
by law, did not support its decision with adequate
findings, or if its findings are not supported by the
record. (Wat. Code, § 13330, subd. (b); Code Civ. Proc.,
§ 1094.5, subd. (b).)
Section 1094.5, subdivision (c) presents two distinct
standards of review a trial court is to use when
determining whether an agency abused its discretion:
App. 84
“Where it is claimed that the findings are not
supported by the evidence, in cases in which the court
is authorized by law to exercise its independent
judgment on the evidence, abuse of discretion is
established if the court determines that the findings
are not supported by the weight of the evidence. In all
other cases, abuse of discretion is established if the
court determines that the findings are not supported by
substantial evidence in the light of the whole record.”
(Code Civ. Proc., § 1094.5, subd. (c).)
As directed by Water Code section 13330, subdivision
(e), the trial court’s review of an administrative civil
liabilities order is governed by the substantial evidence
standard. “For the purposes of subdivision (c) of Section
1094.5 of the Code of Civil Procedure, the court shall
exercise its independent judgment on the evidence in
any case involving the judicial review of ... a decision or
order of a regional board for which the state board
denies review under Section 13320, other than a [civil
liability] decision or order issued under Section 13323.”
(Wat. Code, § 13330, subd. (e), emphasis added; see
Wat. Code, § 13323, subd. (a) [“any executive officer of
a regional board may issue a complaint to any person
on which administrative civil liability may be imposed
pursuant to this article”].) Thus, a trial court does not
exercise its independent judgment on the evidence
when it reviews administrative civil liability orders as
it would if it were reviewing cleanup and abatement
orders. (Ante, Section II.A.) Accordingly, while the trial
court could exercise its independent judgment in
reviewing the CAO, its standard for the ACL Order
was substantial evidence.
App. 85
“In substantial evidence review, the reviewing court
defers to the factual findings made below. It does not
weigh the evidence presented by both parties to
determine whose position is favored by a
preponderance. Instead, it determines whether the
evidence the prevailing party presented was
substantial—or, as it is often put, whether any rational
finder of fact could have made the finding that was
made below. If so, the decision must stand.” (Alberda,
supra, 214 Cal.App.4th at p. 435, 153 Cal.Rptr.3d 823;
see also Marina County Water Dist. v. State Water
Resources Control Bd. (1984) 163 Cal.App.3d 132, 138,
209 Cal.Rptr. 212 [under substantial evidence review,
superior court’s “task would have been merely to
determine whether there was substantial evidence in
the record, taken as a whole, to support the Board’s
action, whether the court itself would have come to the
same conclusion on that evidence or not”].)
Respondents argue that because the Regional Board’s
decision affected a fundamental vested right “the trial
court should have applied its independent judgment” to
the evidence. Generally, “[i]f the administrative
decision involved or substantially affected a
‘fundamental vested right,’ the superior court exercises
its independent judgment upon the evidence disclosed
in a limited trial de novo in which the court must
examine the administrative record for errors of law and
exercise its independent judgment upon the evidence.
[Citations.] The theory behind this kind of review is
that abrogation of a fundamental vested right ‘is too
important to the individual to relegate it to exclusive
administrative extinction.” (JKH Enterprises, Inc. v.
Department of Industrial Relations (2006) 142
App. 86
Cal.App.4th 1046, 1056–1057, 48 Cal.Rptr.3d 563 (JKH
Enterprises).) “On the other hand, ‘[w]here no
fundamental vested right is involved, the superior
court’s review is limited to examining the
administrative record to determine whether the
adjudicatory decision and its findings are supported by
substantial evidence in light of the whole record.’ ” (Id.
at p. 1057, 48 Cal.Rptr.3d 563.)
We recognize that “[a]s a general rule, ‘[u]nless
expressly provided, statutes should not be interpreted
to alter the common law, and should be construed to
avoid conflict with common law rules.’ ” (California
Assn. of Health Facilities v. Department of Health
Services (1997) 16 Cal.4th 284, 297, 65 Cal.Rptr.2d 872,
940 P.2d 323.) But here, Water Code section 13330,
subdivision (e) expressly rejects the independent
judgment standard as the basis for the trial court’s
review of administrative civil liability orders, and Code
of Civil Procedure section 1094.5, subdivision (c) directs
trial courts to review such decisions for substantial
evidence.
2. This Court’s Review of the Trial Court
Decision
Next, we move to the standard of review we are to
employ on appeal, which the parties also contest. The
Regional Board argues that we apply the same
substantial evidence standard the trial court should
have applied, “giving no deference to the trial court and
reviewing de novo whether the Board’s findings in the
ACL were supported by substantial evidence in the
entire record.” Respondents, on the other hand, assert
App. 87
that “this Court reviews the trial court’s findings for
substantial evidence.”
We will apply the same standard the trial court should
have applied and review the Board’s findings for
substantial evidence. (See Fort Mojave Indian Tribe v.
Department of Health Services (1995) 38 Cal.App.4th
1574, 1590, 45 Cal.Rptr.2d 822 [“[I]f the court should
have employed the alternative, substantial evidence
test, its determinations would be subject to review by
applying the same test, de novo, to the administrative
record.”]; cf. Ogundare v. Department of Industrial
Relations (2013) 214 Cal.App.4th 822, 828, 154
Cal.Rptr.3d 369 [“ ‘Regardless of the nature of the right
involved or the standard of judicial review applied in
the trial court, an appellate court reviewing the
superior court’s administrative mandamus decision
always applies a substantial evidence standard.’ ”].) In
doing so, “[w]e review the administrative record to
determine whether the agency’s findings were
supported by substantial evidence, resolving all
conflicts in the evidence and drawing all inferences in
support of them.” (JKH Enterprises, supra, 142
Cal.App.4th at p. 1058, 48 Cal.Rptr.3d 563.)
Of course, we review the trial court’s legal
determinations under the de novo standard. (Building
Industry, supra, 124 Cal.App.4th at p. 879, 22
Cal.Rptr.3d 128; Foundation, supra, 12 Cal.App.5th at
p. 190, 218 Cal.Rptr.3d 596; Imperial Irrigation Dist. v.
State Water Resources Control Bd. (1990) 225
Cal.App.3d 548, 553, 275 Cal.Rptr. 250.) This means
“we are not bound by the legal determinations made by
the state or regional agencies or by the trial court ...
App. 88
[b]ut we must give appropriate consideration to an
administrative agency’s expertise underlying its
interpretation of an applicable statute.” (Building
Industry, supra, at p. 879, 22 Cal.Rptr.3d 128.)
B. The Basin Plan and Clean Water Act
The ACL Order was premised on discharges in
violation of the Regional Board’s Basin Plan and the
Clean Water Act. The Regional Board alleged two
violations in its ACL Complaint. The first alleged was
that Respondents violated Discharge Prohibition No. 9
(Prohibition 9) in the Basin Plan and section 301 of the
Clean Water Act (33 U.S.C. § 1311) for the discharge
and continued placement of approximately 8,500 cubic
yards of fill into waters of the State and the United
States. The second violation alleged that Respondents
failed to obtain a certification for the discharge of
dredged or fill material into navigable waters of the
United States as required by section 401 of the Clean
Water Act (Section 401 Certification). The ACL Order
issued based on these discharges. The trial court
concluded the Regional Board’s findings that justified
the ACL Order were not supported by substantial
evidence. Several of its reasons were not rooted in
considerations of substantial evidence, but whatever
the reasons, the trial court erred.
1. Grounds for Decision
The Regional Board adopted the Basin Plan pursuant
to Water Code section 13240, as the “legal, technical,
and programmatic bases of water quality regulation in
the [r]egion.” (Wat. Code, §13240; Basin Plan, §1.4 <
https://www.waterboards.ca.gov/sanfranciscobay/basi
App. 89
n_pl anning.html> (as of Feb. 18, 2021) (Basin Plan).)9
To protect water quality, the Basin Plan includes 18
discharge prohibitions that apply throughout the
region, and must be met at all times. (Id., § 4.2.)
Prohibition 9 forbids the discharge of “[s]ilt, sand, clay,
or other earthen materials from any activity in
quantities sufficient to cause deleterious bottom
deposits, turbidity or discoloration in surface waters or
to unreasonably affect or threaten to affect beneficial
uses.” (Id., Table 4-1: Discharge Prohibitions.)
Section 301 of the Clean Water Act prohibits the
discharge of pollutants into any waters of the United
States without a permit. (33 U.S.C.§ 1311.) To
discharge fill into waters of the United States, one
must apply to the Corps for a Clean Water Act section
404 dredge and fill permit (404 Permit) or a Rivers and
Harbors Act section 10 permit (for pier construction).
(33 U.S.C. §§ 1344, 403.) In order to receive a 404
Permit, the applicant, unless exempt, must obtain a
Section 401 certification from the state where the
discharge originates or construction occurs. (33 U.S.C.
§ 1341(a)(1).) Applications for such certification in
California are filed with a regional board’s executive
officer. (Cal. Code Regs., tit. 23, § 3855.) The 404
Permit cannot issue unless the regional board provides
a water quality certification. (33 U.S.C. § 1341(a).) The
certification may add conditions to the Corps’ permit to
ensure that the proposed activity will comply with
water quality standards and “any other appropriate
9
The Regional Board requests we take judicial notice of the Basin
Plan prohibition it found Respondents violated. Respondents do
not oppose this request. We grant the request.
App. 90
requirement of State law.” (33 U.S.C. § 1341(d).) Under
Water Code section 13385, subdivision (a), a person
who violates Clean Water Act sections 301 or 401 “shall
be liable civilly.” (Wat. Code, § 13385, subd. (a)(5).)
In its statement of decision, the trial court expressed
multiple, overlapping reasons why, even without
issuance of a permit or certification, Respondents did
not violate the Basin Plan or the Clean Water Act. As
discussed below, none of its reasons justified setting
aside the ACL Order.
a. Waters of the United States
Just as in its CAO decision, the trial court concluded
the ACL Order was invalid because the Regional Board
did not demonstrate that Respondents’ fill material
was discharged into “waters of the United States.” It
found “the evidence would not be enough to establish
that the island (other than interior channels and
ditches) is waters of the United States.”
As with the CAO, the court’s rationale overlooks the
fact that at least some of Respondents’ discharges of fill
material occurred in waters of the United States. The
trial court’s finding that “the evidence would not be
enough to establish the island (other than the interior
channel and ditches) is waters of the United States”
recognizes that the island’s water filled “channels and
ditches” were jurisdictional waters. Respondents do not
disagree. Because at least some waters of the United
States were impacted by Respondents activities, the
trial court erred in setting aside the ACL Order on this
ground.
App. 91
b. Harm to Beneficial Uses
The trial court also found “the evidence [was] not
sufficient to support the conclusion that the levee work
adversely affected beneficial uses,” nor could it
“support a finding that the levee work violated
requirements in the basin plan that prohibit discharges
into surface waters that affect beneficial uses.”
Had the court applied the substantial evidence
standard to the Regional Board’s finding, as we do, it
would have acknowledged ample evidence of the levee
work’s harm to beneficial uses. In the Board’s response
to Respondents’ opposition to the ACL Complaint, the
Board’s expert presented evidence and opinions similar
to those presented in support of the CAO. His reports
provided evidence the Site was tidal marsh before
Respondents’ levee construction. He also identified the
harm that resulted from converting the Site, which
included the loss of food production into the
surrounding channels where fish feed and the loss of
shallow water habitat in the island’s tidal channels
where fish would spawn. The expert also presented
evidence that mass vegetation die-off occurred and
endangered fish were harmed because the levee cut off
tidal connectivity to the island. There was ample
evidence that Respondents’ activities unreasonably
affected or threatened to affect beneficial uses.
c. Whether
Decision
Findings
Support
the
In an apparent reference solely to the Basin Plan
violation, the court concluded “[t]here is no finding
about which requirements are at issue, and no
App. 92
reference to the administrative record that makes the
reference clear.” The grounds for the Basin Plan
violation are in the ACL Complaint, which states
Respondents “discharged and the Club permitted
continued placement of approximately 8,586 cubic
yards of fill into waters of the State and United States,
violating Basin Plan Prohibition No. 9 and Clean Water
Act section 301. The fill remains in waters of the State
and United States, and is contributing to the ongoing
degradation of approximately 27.1 acres of surface
water and wetlands at the Site.” The analysis
accompanying the ACL Complaint further explains the
reasons for the Basin Plan violation with reference to
the administrative record. Over the course of the
enforcement proceeding, the Board submitted evidence
supporting the factual bases for these violations. The
ACL Order was sufficiently supported by the Board’s
finding that Respondents’ activities violated
Prohibition 9.
d. Number of Discharges
The trial court also concluded that the evidence did not
support the Regional Board’s conclusion that the
violation was continuous and had exceeded 1,000 days
by the time of the ACL hearing. In the court’s view,
“[b]ecause the violation requires a discharge, and the
discharge requires an addition, the violation ended
when the addition stopped.” The Regional Board argues
the trial court erred when it rejected the number of
days Respondents were in violation of the law as the
basis for calculating the penalty.
From the time levee construction began in early 2014
through the date of the ACL hearing in December 2016,
App. 93
the Regional Board determined Respondents’ violation
had occurred for 1,013 days and was continuing. The
number of days the condition existed was used as a
multiplier to determine Respondents’ maximum
liability prior to any adjustments.
We see no reason to address the legal issue that would
require us to define the temporal nature of discharges.
Generally, courts decide actual controversies rather
than academic propositions. (Bell v. Board of
Supervisors (1976) 55 Cal.App.3d 629, 636–637, 127
Cal.Rptr. 757.) At the ACL hearing, a member of the
Regional Board prosecution team who worked on the
penalty determination explained the basis for the
penalty imposed, saying: “The $4.6 million penalty
corresponds to the base liability related to volume of fill
discharge, and does not include liability for days of
violation.” Thus, while the continuous nature of the
violation factored into initial liability calculations, the
daily tally was not used to calculate the $4.6 million
penalty that was ultimately proposed. Accordingly, it
was not relevant or material to the $2.8 million ACL
Order the Board ultimately assessed. We later address
the propriety of the ACL Order’s penalty amount. (See
post, Sec. III.C.3.)
2. Issue Preclusion
In supplemental briefing, the Regional Board contends
that legal conclusions and factual findings recently
made by the district court in a separate enforcement
action against Respondents control issues in this case
related to the Clean Water Act under issue preclusion
principles of res judicata. Res judicata “ ‘preclud[es]
parties from contesting matters that they have had a
App. 94
full and fair opportunity to litigate,’ ” and “protect[s]
against ‘the expense and vexation attending multiple
lawsuits, conserve[s] judicial resources, and foster[s]
reliance on judicial action by minimizing the possibility
of inconsistent decisions.’ ” (Taylor v. Sturgell (2008)
553 U.S. 880, 892.)”
In the Sweeney District Court Opinion, supra, 483
F.Supp.3d 871, the district court entered judgment in
favor of the plaintiff United States against
Respondents. (Id. at p. 941.) The district court
determined “Sweeney violated and remains in violation
of the Clean Water Act ... as a result of unpermitted,
non-exempt construction of a levee and other additions
of pollutants (dredged or fill material) ... to waters of
the United States ... on Point Buckler Island...” (Ibid.)
The court also found the Club in violation of the Clean
Water Act for Sweeney’s actions. (Id. at pp. 941-42.) In
reaching its decision, the district court made several
factual findings. It found that Respondents’ levee
blocked tidal flow into the island resulting in the
destruction of wetlands vegetation and harm to water
quality and aquatic habitat that adversely affected fish.
(Id. at pp. 899-907.) In determining that Respondents
violated the Clean Water Act, the court concluded as a
legal matter that Respondents’ discharges occurred in
“waters of the United States” because “at the time
[Respondents] initiated their activities, Point Buckler
Island consisted almost entirely of tidal-water channels
and marsh wetlands abutting tidal waters ... and
[Respondents] discharged pollutants into those aquatic
waters.” (Id. at pp. 916-28.)
App. 95
The Regional Board contends the doctrine of issue
preclusion applies to the district court’s determination
that Respondents violated Clean Water Act section 301.
There is no need for us to analyze the application of
issue preclusion in this case. Our conclusions that the
ACL Order is supported by substantial evidence and
that none of the other grounds asserted in the court’s
decision for setting aside the ACL Order were correct
obviates any need to apply the federal findings.10
C. Eighth Amendment
The Eighth Amendment to the United States
Constitution provides: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” (U.S. Const., 8th
Amend.)
The Eighth Amendment prohibition on excessive fines
“ ‘limits the government’s power to extract payments,
whether in cash or in kind, “as punishment for some
offense.” ’ ” (United States v. Bajakajian (1998) 524
U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314
(Bajakajian).) The California Constitution contains a
similar protection. (People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728, 36
Cal.Rptr.3d 814, 124 P.3d 408 (R.J. Reynolds).) The
touchstone of constitutional inquiry under the
10
Respondents make several requests for judicial notice in
association with their opposition to the Regional Board’s res
judicata arguments. Since we need not address the res judicata
argument, we deny the Respondents’ requests as unnecessary to
resolve the issues before us. (See Mangini, supra, 7 Cal.4th at
p. 1063, 31 Cal.Rptr.2d 358, 875 P.2d 73.)
App. 96
excessive fines clause is proportionality. (Bajakajian,
at p. 334, 118 S.Ct. 2028.) The amount of the fine must
bear some relationship to the gravity of the offense that
it is designed to punish, and a fine that is grossly
disproportional to the gravity of the defendant’s offense
violates the excessive fines clause. (Ibid.) In deciding
the matter, we consider “(1) the defendant’s culpability;
(2) the relationship between the harm and the penalty;
(3) the penalties imposed in similar statutes; and
(4) the defendant’s ability to pay.” (R.J. Reynolds, at
pp. 728, 730, 36 Cal.Rptr.3d 814, 124 P.3d 408.)
“We review de novo whether a fine is constitutionally
excessive and therefore violates the Eighth
Amendment’s Excessive Fines Clause.” (United States
v. Lewis (9th Cir. 2003) 62 Fed.Appx. 757, 762; see also
Cooper Industries, Inc. v. Leatherman Tool Group, Inc.
(2001) 532 U.S. 424, 435–36, 121 S.Ct. 1678, 149
L.Ed.2d 674 (Cooper).). Factual findings made by the
trial court in conducting the excessiveness inquiry, of
course, must be accepted unless clearly erroneous.”
(Bajakajian, supra, 524 U.S. at pp. 334–36, fn.10, 118
S.Ct. 2028.)
The trial court found the penalty was “grossly
disproportional to the gravity of Plaintiffs’ offense.”
This was because it considered Respondents’
culpability to be low; the penalty was grossly
disproportional to the harm caused; there was a gross
disparity between penalties imposed by the Regional
Board for similar behavior; and Respondents could not
afford to pay the penalty imposed. The Board contends
the penalty was not constitutionally excessive.
App. 97
We agree with the Board. The trial court’s findings
were based on the improper exercise of its independent
judgment, so we will disregard them. There was
substantial evidence in the administrative record to
support the Board’s findings that bear on each prong of
the constitutional analysis. We also reach different
legal conclusions than the trial court.
1. Respondents’ culpability
The trial court found Respondents’ culpability was low.
It based this conclusion largely on Sweeney’s
testimony. Sweeney said that he contacted certain
state agencies before beginning work and “came away
with the understanding that no permits were needed.”
The court also credited Sweeney’s testimony regarding
his belief that permits were needed only for islands
submerged by the tides whereas the Site was “high and
dry” as well as his ignorance about the need for “[Clean
Water Act section] 401 certifications” from the Regional
Board. The court also found no evidence that marsh
landowners commonly understood levee work requires
permits or that Clean Water Act certifications were
common knowledge. Because the court’s findings were
based improperly on its exercise of independent
judgment and weighing of the evidence, we do not
accept them.
Had the court correctly applied the substantial
evidence standard to the Regional Board’s findings, as
we do, it would have acknowledged ample evidence of
Respondents’ high culpability. Years before his
purchase of the Site, Sweeney had experience with
various government agencies with jurisdiction over
Suisun Marsh at another property he owned. His levee
App. 98
work there resulted in illegal discharges of fill contrary
to permit conditions and direction from the relevant
agencies, and he was found in violation for his work.
Sweeney had also been involved with other duck
hunting clubs in Suisun Marsh and had prior
experience securing permits for maintenance activities
that would discharge fill into the marsh. He had
previously communicated by email with state agencies
for permits to repair a levee breach at one of those
clubs. In addition, there was ample evidence that
Sweeney continuously performed work at the Site after
regulators directed him to stop. These experiences
sufficiently demonstrated Sweeney’s willful
indifference toward the regulatory process and a
knowing rejection of the need to apply for permits in
order to work at the Site. These facts demonstrated
Sweeney’s high culpability.
2. Relationship between the harm and
the penalty
The trial court also concluded the penalty was “grossly
disproportional to the harm.” It based this conclusion
on a finding that the Regional Board had not
established that fish used the channels at the Site or
that there was harm to any specific endangered species
of fish. The court, on the other hand, viewed the
benefits to the environment of duck ponds over tidal
marsh were “clear and definite.” It found that had
Respondents’ been allowed to complete their levee
work, they would have “created a net benefit for the
environment rather than a harm.” Again, the court’s
improper exercise of its independent judgment led it to
err, and we cannot validate its finding.
App. 99
Had the court applied the substantial evidence
standard to the Regional Board’s finding, as we do, it
would have acknowledged that the substantial penalty
correlated with the major harm caused by Respondents’
activities. The Board’s expert presented ample evidence
that Respondents’ levee construction converted the Site
from tidal marshland and adversely impacted
beneficial uses at the Site including estuarine habitat,
fish migration, preservation of endangered species, fish
spawning, and wildlife habitat. (See ante, Section
III.B.1.b.) In consideration of these impacts, the Board
categorized the harm caused by Respondents as
“major” when determining the penalty. Since there was
substantial evidence to support this assessment in the
record, we conclude Respondents caused significant
harm and it was reasonably related to the significant
penalty imposed.
3. Penalties imposed in similar statutes
This factor has been explained “as the sanctions
imposed in other cases for comparable conduct.”
(Cooper, supra, 532 U.S. at p. 435, 121 S.Ct. 1678.) The
trial court found “a great disparity between the nonexistent or modest penalties the Regional Board has
imposed for similar behavior, and the severe penalty
imposed here.” It observed that the “top-ten Regional
Board penalties have generally been reserved for
discharges of millions of gallons of untreated sewage
and discharges resulting in hundreds of observably
dead fish,” and this case posed “no threat to public
health or observably dead fish.” It also observed that
“there is no evidence that the Regional Board has ever
App. 100
imposed any penalties on duck clubs in [the] Marsh for
levee work.”
We are not persuaded that the $2.8 million penalty was
not comparable to other cases or unreasonable. The
ACL Complaint originally proposed a $4.6 million
penalty for Respondents’ alleged unauthorized
discharges. It included a 14-page exhibit explaining its
method for arriving at the proposed penalty in
accordance with the State Board’s Water Quality
Enforcement Policy methodology for assessing civil
liabilities. The prosecution team considered, and
explained, how it considered numerous statutory
criteria to determine the liability including the nature
and extent of Respondents’ violations; the degree of
toxicity of the discharge; the economic benefits to
Respondents from the discharges; and other factors
similar to the ones considered in our constitutional
analysis here. The $4.6 million penalty originally
proposed fell between the maximum liability amount of
$39,211,860 and the minimum amount of $1,550,859
and reflected the continuing and harmful nature of
Respondents’ violations. (See Ojavan Investors, Inc. v.
California Coastal Com. (1997) 54 Cal.App.4th 373,
398, 62 Cal.Rptr.2d 803 [$9.5 million civil penalty
against a developer for 73 violations of Coastal Act not
excessive].) While significant, the $4.6 proposed
penalty already reflected reductions recommended by
the prosecution on the basis of factors as justice
required. A member of the Board’s prosecution team
testified that one adjustment was made to be
consistent with earlier Regional Board orders involving
a single entity’s dredging and fill. Even at the proposed
$4.6 million, the prosecution team found it to be “in line
App. 101
with other actions taken by this Regional Water Board
and the resulting harm caused by Dischargers’
conduct.” At the ACL hearing, a prosecution team
member compared the proposed $4.6 million penalty to
a $5 million settlement the Regional Board had
recently entered with a municipal entity “for a similar
discharge and fill, Clean Water Act violations.” This is
enough to satisfy us that the $2.8 penalty that was
ultimately imposed was not disproportionately high.
4. Ability to pay
The trial court concluded that Respondents could not
afford to pay the $2.8 million penalty. Based on
“evidence from Sweeney and a financial expert,” the
court found the Regional Board overestimated
Respondents’ net worth by not accounting for “obvious
liabilities,” including the costs of compliance imposed
by the CAO (which it had concurrently set aside). The
court’s conclusion again resulted from its improper
exercise of independent judgment, and we cannot
accept the court’s findings.
Had the court applied the substantial evidence
standard to the Regional Board’s findings, as we do, it
would have acknowledged substantial evidence of
Respondents’ ability to pay. The Regional Board
prosecution staff completed just such an analysis in
support of the proposed $4.6 million penalty. It
considered Respondents’ net cash flow and net worth.
The analysis acknowledged that the most complete and
accurate accounting of such information comes from an
entity’s own disclosures, which Respondents did not
provide. Absent such direct disclosures from
Respondents, the prosecution team reviewed public
App. 102
records for assets belonging to Respondents which
included other property Sweeney purchased. It also
considered other assets, such as Point Buckler, duck
club membership sales, and funds from a Tiburon
property Sweeney recently sold. Based on the available
information and the lack of any objective financial
informa
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