Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control District

Opinion YEGAN, J. Consistent with the laudable goal of safeguarding the public health, the trial court “stretched” to find a dictionary definition of the word “contrivance” to describe a state park. As Justice Oliver Wendell Holmes said: “ ‘A word is not a crystal, transparent and unchanged; It is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.’ ” (Almar Limited v County of Ventura (1997) 56 Cal.App.4th 105, 106 [65 Cal.Rptr.2d 70] [quoting].) This appeal “turns” on the meaning of the word “contrivance.” (Id., at p. 107.) Neither the trial court nor an appellate court is at liberty to pick a dictionary definition to reach a desired result. (See People v. Arno (1979) 90 Cal.App.3d 505, 514, fn. 2 [153 Cal.Rptr. 624].) As we shall explain, the time-honored rule of ejusdem generis requires that in the context of construing Health and Safety Code section 42300, subdivision (a) a state park is not a “contrivance.” Thus, the trial court erroneously ruled that a local air pollution control district has the power to regulate air emissions emanating from a state park by a permit requirement. Friends of Océano Dunes, Inc., a California nonprofit corporation and voluntary association, appeals the dismissal of its writ of mandate petition (Code Civ. Proc., § 1085) and complaint for declaratory/injunctive relief. Appellant contends that the San Luis Obispo County Air Pollution Control District (District) exceeded its authority in adopting rule 1001 of regulation X, Fugitive Dust Emission Standards, Limitations and Prohibitions (Rule 1001), which requires that California’s Department of Parks and Recreation obtain an air emissions permit to operate the Océano Dunes State Vehicular Recreation Area. The trial court found that Health and Safety Code section 42300, subdivision (a) authorized District to impose a permit system to regulate sand and dust emissions caused by off-road recreational vehicles using the state park. 1 *961 Air Pollution Regulation Two statutory schemes regulate air quality in California: the federal Clean Air Act (42 U.S.C. § 7401 et seq.) and the California Clean Air Act (§ 39000 et seq.). (See California Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist. (2009) 178 Cal.App.4th 120, 125 [100 Cal.Rptr.3d 204].) Under the federal Clean Air Act, the Environmental Protection Agency (EPA) sets national air quality standards for the maximum allowable concentration of a given pollutant. (178 Cal.App.4th at p. 125.) Each state has the primary responsibility for assuring air quality within its geographic area. (Ibid.) Under the California Clean Air Act, the California Air Resources Board (CARB) is charged with developing a state implementation plan to ensure compliance with federal air quality standards. (§§ 39602, 41502-41505.) CARB is solely responsible for vehicular sources of air pollution. (§ 39002.) Local and regional air pollution control districts have the primary responsibility of controlling air pollution from all sources other than vehicular sources. (Ibid.) Section 42300, subdivision (a) provides: “Every district board may establish, by regulation, a permit system that requires . . . that before any person builds, erects, alters, replaces, operates, or uses any article, machine, equipment, or other contrivance which may cause the issuance of air contaminants, the person obtain a permit to do so from the air pollution control officer of the district.” At issue is whether District is statutorily authorized to require a permit for the operation of the Océano Dunes State Vehicular Recreational Area (SVRA), a 3,600-acre recreational park consisting of natural beach and sand dunes. SVRA, formerly known as the Pismo Dunes State Vehicular Area, was created in 1974 for dune buggies and off-road recreational vehicles. (Sierra Club v. Department of Parks & Recreation (2012) 202 Cal.App.4th 735, 739 [136 Cal.Rptr.3d 220].) Approximately 2,100 acres of the park are closed to motorized recreation and managed as native habitat. The SVRA hosts 1.6 million visitors a year who camp, walk, fish, surf, and operate off-road vehicles on the beach and sand dunes. Operation of the SVRA is important to the state park system, to off-road recreational vehicle communities, and to the local coastal economy. Rule 1001 — Regulation of Dune Vehicle Activity Areas After research groups determined that the SVRA was a contributing factor to elevated PM10 emissions, District conducted its own study and found that off-road recreational vehicles devegetate and disturb the surface crust of sand *962 dunes. 2 This disturbance increases the ability of winds to blow sand and dust inland to Nipomo Mesa. PM 10 levels at Nipomo Mesa exceed state health standards approximately 65 days a year, exposing residents to serious health risks. In response to the air emissions problem, District adopted Rule 1001 (entitled “Coastal Dunes Dust Control Requirements”) which applies to any operator of a coastal dune vehicle activity area greater than 100 acres in size. Rule 1001 provides: “All facilities subject to this rule shall obtain a Permit to Operate from the Air Pollution Control District . . . .” (Rule 1001C.5.) Trial Court Ruling Appellant filed a petition for traditional writ of mandate and a complaint for injunctive/declaratory relief alleging that Rule 1001 exceeds District’s statutory authority. California’s Department of Parks and Recreation (State Parks) was named as a real party in interest. Denying the writ petition, the trial court concluded that section 42300 granted District authority to treat the SVRA as a direct source of air pollution. The trial court found that “a managed recreational facility is reasonably viewed as ‘a contrivance’ devised by man- — i.e.,—not something that occurs naturally, which causes the emissions of airborne particulate matter (sand and dust) from the dunes.” Standing District argues that appellant lacks standing to prosecute the appeal because it is not prejudicially affected by the judgment. “As a general rule, a party must be ‘beneficially interested’ to seek a writ of mandate. (Code Civ. Proc., § 1086.)” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165 [127 Cal.Rptr.3d 710, 254 P.3d 1005].) The beneficial interest must be direct and substantial. (Id., at p. 166.) The trial court found that appellant has a beneficial interest in the operation of the SVRA and standing to bring the action. We concur. The continued operation of the SVRA directly affects appellant and its members who have an interest in ensuring that District does not eliminate or restrict off-road vehicle recreation. The “public interest” exception also confers standing where the question is one of an important public right and the object of the action is to enforce a public duty. (Save the Plastic Bag Coalition v City of Manhattan Beach, supra, 52 Cal.4th at p. 166 [corporate plaintiff can have both public interest and *963 beneficial interest standing where the challenged rule has a severe and immediate effect on member’s activities].) The interpretation and scope of section 42300 is a matter of general public interest that affects a broad swath of recreational park users and 35 air pollution control districts. (See, e.g., Watershed Enforcers v. Department of Water Resources (2010) 185 Cal.App.4th 969, 978 [110 Cal.Rptr.3d 876].) Santa Barbara County Air Pollution Control District, in its amicus curiae brief, concedes that the appeal presents an important issue of statutory interpretation affecting the permit authority of all California air pollution control districts. Standard of Review District argues that Rule 1001 is a quasi-legislative act entitled to great deference by the court. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461 [142 Cal.Rptr.3d 581, 278 P.3d 838].) Air pollution control districts have the authority to “adopt and enforce rules and regulations to achieve and maintain the state and federal ambient air quality standards in all areas affected by emission sources under their jurisdiction.” (§ 40001, subd. (a).) Here the writ petition focuses on the narrow issue of whether Rule 1001 exceeds District’s lawmaking authority. “[W]hen an implementing regulation is challenged on the ground that it is ‘in conflict with the statute’ [citation] or does not ‘lay within the lawmaking authority delegated by the Legislature’ [citation], the issue of statutory construction is a question of law on which a court exercises independent judgment. [Citation.] In determining whether an agency has incorrectly interpreted the statute it purports to implement, a court gives weight to the agency’s construction. ([American Coatings Assn. v. South Coast Air Quality Management Dist., supra, 54 Cal.4th 446, 461] [‘How much weight ... is “situational,” and greater weight may be appropriate when an agency has a “ ‘comparative interpretive advantage over the courts,’ ” as when “ ‘the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion.’ ” [Citation.]’]) ‘Nevertheless, the proper interpretation of a statute is ultimately the court’s responsibility.’ [Citation.]” (Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415-416 [159 Cal.Rptr.3d 702, 304 P.3d 188].) Direct Versus Indirect Sources of PM10 Emissions Section 42300, subdivision (a) provides that an air pollution control district may require “that before any person builds, erects, alters, replaces, operates or uses any article, machine, equipment, or other contrivance which may cause the issuance of air contaminants, the person obtain a permit to do so from the air pollution control officer of the district.” “Person” includes any state or local governmental agency. (§ 39047, subd. (b).) Before Rule 1001 was adopted, no air pollution control district has ever required that a state *964 park obtain a permit for the use of off-road recreational vehicles. The reason is straightforward. Air pollution control districts are not statutorily authorized to regulate motor vehicle emissions (§ 40000) or impose a permit system on indirect sources of air pollution. (See 76 Ops.Cal.Atty.Gen. 11, 19 (1993).) Although the California Clean Air Act does not say what an “indirect source” is, the federal Clean Air Act defines “indirect source” to mean “a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution. Such term includes parking lots, parking garages, and other facilities subject to any measure for management of parking supply .... Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources . . . .” (42 U.S.C. § 7410(a)(5)(C), citation omitted; see California Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist. (2009) 178 Cal.App.4th 120, 126 [100 Cal.Rptr.3d 204].) 3 An example would be a sports facility or parking structure that attracts vehicles (i.e., a mobile source activity). (42 U.S.C. § 7410(a)(5)(C); see South Terminal Corp. v. Environmental Protection Agency (1st. Cir. 1974) 504 F.2d 646, 668, fn. 24.) District’s South County Phase 2 Particulate Study, which is the genesis for Rule 1001, states that SVRA off-road vehicular activities are an indirect source of PM10 emissions: “Offroad vehicle activity on the dunes is known to cause de-vegetation, destabilization of dune structure and destruction of the natural crust on the dune surface .... All of these act to increase the ability of winds to entrain sand particles from the dunes and carry them to the Mesa, which is an indirect emissions impact from the vehicles.” (Italics added.) Because air pollution control districts are not statutorily authorized to impose a permit system on indirect sources of PM10 emissions, District asserts on appeal that fugitive dust/sand from the SVRA is a direct source emission. We reject this contention. The argument would be plausible if a state park was operating a sand quarry or removing contaminated soil with machinery. The Legislature has provided that those activities (a stationary source emitting air pollutants) are subject to regulatory permits. 4 (See, e.g., §§42310.5 [asphalt plants], 42314.1, 42315 [facilities that bum municipal waste, landfill gas, or digester gas].) A sand dune, however, is an inert mound *965 of sand. If off-road recreational vehicles cause or exacerbate PM 10 emissions and District can regulate them by a permit system, then any local air pollution control district could control any recreational activity that combines with any natural phenomenon causing air pollution. This would include boats on a lake, motorcycles in a desert, and snowmobiles in a forest. Is a State Park a “Contrivance?” District argues that it has section 42300 regulatory power over the SVRA because an “other contrivance” is any manmade improvement that is a direct source of air emissions. “Contrivance” is commonly defined as a “mechanical device” or “an artificial arrangement or development.” (Webster’s Collegiate Dict. (10th ed. 1999) p. 252; see Baugh v. Beatty (1949) 91 Cal.App.2d 786, 791 [205 P.2d 671] [using Webster’s definition of “contrivance”].) For purposes of statutory interpretation, the doctrine of ejusdem generis applies. In Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1011-1012 [9 Cal.Rptr.2d 358, 831 P.2d 798], our California Supreme Court has defined this doctrine as follows: “[W]hen a statute contains a list or catalogue of items, a court should determine the meaning of each by reference to the others, giving preference to an interpretation that uniformly treats items similar in nature and scope. [Citations.] In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list. [Citations.]” (Ibid.) Here the statutory list is “any article, machine, equipment, or other contrivance which may cause the issuance of air contaminants.” (§ 42300, subd. (a).) Under the rule of ejusdem generis, the general term (“other contrivance”) is “ ‘restricted to those things that are similar to those which are enumerated specifically.’ [Citations.]” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1160, fn. 7 [278 Cal.Rptr. 614, 805 P.2d 873]; see Civ. Code, § 3534 [“Particular expressions qualify those which are general.”].) “Other contrivance” refers to an article, machine, equipment or device that a person builds, erects, alters, replaces, operates, or uses. District argues that the SVRA is a “contrivance” because it has gates, fences, walking paths, access roads, signage, parking lots, and restrooms. But these improvements to the dunes are not the cause of the emissions. They do not directly or indirectly cause emissions and without them, off-road recreational vehicles would still go to the park. We do not believe that a fence or *966 sign designating the sand dunes as an off-road recreational area makes the SVRA a “contrivance” or a direct source of air pollution. If the rule was otherwise, District would have the authority to regulate the operation of any state park simply because the park has as a fence, gate, sign, or parking lot. Pursuant to the ejusdem generis rule, the courts could reasonably construe the word “contrivance” as e.g., any tool, implement, apparatus, device, appliance or mechanism. They are “similar in nature and scope” to the words, “article, machine, equipment.” The objective reader should ask whether a state park is “similar in nature and scope” to the words “article, machine, equipment.” We borrow from Justice Holmes. A word, the skin of a living thought, can be stretched only so far before a new color and content emerges. The “circumstances” in which the word “contrivance” is used in section 42300, subdivision (a) compel the conclusion that the Legislature did not contemplate that a “contrivance” would include a state park. If District wants to add a state park to the section 42300 list, the remedy lies with the Legislature. Rule 1001, as written, attempts to do indirectly what District cannot do directly. We have no power to rewrite section 42300 or, under the guise of construction, read into the statute something the Legislature omitted. “ ‘ “Courts must take a statute as they find it, and [even] if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authority.” ’ ” (Sierra Club v. Department of Parks & Recreation, supra, 202 Cal.App.4th at p. 744.) We express no opinion on whether or how the Legislature should remedy the perceived problem. The judgment (order dismissing petition for writ of mandate and complaint for injunctive/declaratory relief) is reversed. Appellant is awarded costs on appeal. Gilbert, P J., and Perren, J., concurred. A petition for a rehearing was denied April 23, 2015, and the opinion was modified to read as printed above. Footnotes [1] Unless otherwise stated, all statutory references are to the Health and Safety Code. [2] Under the federal Clean Air Act, the EPA has established national ambient air quality standards and identified criteria pollutants that include course particulate matter (PM10). (See California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225, 1231-1232 [101 Cal.Rptr.3d 81].) “Particulate matter (PM) refers to very small solid or liquid particles that can be suspended in the atmosphere.” (Id., at p. 1231.) [3] CARB defines “indirect source” as “ ‘ “any facility, building, structure or installation, or combination thereof which generates or attracts mobile source activity that results in the emissions of any pollutant for which there is a state ambient air quality standard.” ’ ” (California Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist., supra, 178 Cal.App.4th at p. 137.) [4] Section 42310 (which is referenced in § 42300, subd. (a)) lists activities that are exempt from air emissions regulatory permits: the operation of vehicles; structures designed for and used exclusively as a dwelling for not more than four families; incinerators used in connection *965 with those structures, barbecue equipment not used for commercial purposes, and repairs or maintenance not involving structural changes to any equipment for which a permit has been granted.