Sierra Club v. Los Angeles

No. C-39215 (Cal. Super. Ct. October 20, 1972)

The California Environmental Quality Act (CEQA), patterned after NEPA, applies to a city's project to acquire land for the proposed Palmdale airport, even though acquisition was instituted prior to passage of the Act. Acquisition may continue, but demolition and construction cannot begin until the city submits an environmental impact statement. The city can prepare an impact statement which objectively evaluates the proposed airport, despite its continuing economic involvement in the project. The following excerpt from pp. 160-177 of the trial transcript is the Court's ruling from the bench.

Counsel for Plaintiffs
John R. Phillips
Mary D. Nichols
Brent N. Rushforth
Carlyle W. Hall
Frederic P. Sutherland
Center for Law in the Public Interest
10203 Santa Monica Boulevard
Los Angeles, California 90067.

Counsel for Defendant
Roger Arnebergh City Attorney
Milton N. Sherman Principal Assistant City Attorney
Ronald J. Einboden
Deputy City Attorney
No. 1 World Way
Los Angeles, California 90009

[3 ELR 20341]

Eagleson, J.

THE COURT: As the lawyers in the audience know, the decision of the Court is what the Court signs in the way of an order.

This case has a dimension to it that is not usual, and I have permitted many people to speak in this proceeding who probably in a technical sense had no right to speak.

My decision is going to be based, or course, strictly on competent evidence as it has been presented in this courtroom.

My comments are not an opinion in the sense that you would expect to find something from the Supreme Court or a court of appeal, and I'm not going to write any opinion.

I would like to take the time to do so, but I don't have the time. So my comments are not intended to be all inclusive, but they are a few points that I think will give, I hope, depth and meaning to what I intend to say in the way of my judgment.

This Palmdale Airport matter was commenced in the sixties, and such planning as was then required was apparently done, and the then required approvals of governmental agencies were obtained.

The California Environmental Quality Act became the law of this state on November 23, 1970. The purpose of the law is clear, that is, to encourage project builders to consider the impact of their projects on the environment before completing the project.

There was and perhaps still is a legitimate question as to to whom does this Act apply. The legislature, in my opinion, was not as clear as it could have been on this point.

The Friends of Mammoth case, decided on September 21, 1972, held that the Act applied to private projects. The holding of that case does not give any precedent to a determination in this case.

The important point in Mammoth as applied to this case in the emphasis given to the declaration of legislative intent in interpreting the California Environmental Quality Act.

I'm quoting now from Friends of Mammoth case:

"The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute, and if the words are sufficiently flexible to admit of some other construction, it is to be adopted to effectuate that intention.

"The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act."

That language and other language in the Friends of Mammoth case leads the Court to conclude, and the Court does so hold, that the California Environmental Quality Act does apply to charter cities.

Now, we have this problem of retroactivity. The petitioners contend that the law applies to on-going projects. The defendant City contends this is not the case.

The Court finds that CEQA, as it is called, the California Environmental Quality Act, does apply to the project of the case at bar in its present state of completion.

The National Environmental Protection Act, which is the comparable federal statute, requires an environmental impact statement, and City is complying with that requirement at this time.

NEPA, as it is called, and the California Environmental Quality Act, have similar purposes and comparable language.

The Court also thinks that the application of the California Environmental Quality Act is not retroactive in the sense that nothing has yet happened that is deleteriously impactive on the environment. Buying and selling land per se does not and cannot affect the environment, and in my judgment it is nonsense to say otherwise.

When plans are put into being, this is something else, and it is the use of the land thereafter that gives rise to the potential environmental impact.

The Court can conceive of cases when the sale of a parcel of land from "A" to "B" would never give rise to the need for an environmental impact report.

It is obvious in the case at bar that the City has set out to purchase land with a specific intent of building an airport.

As a sovereign legislative body, it had the right to decide its own future desitny as one of the greatest cities of the world, and in the exercise of its legislative wisdom decided this would on balance be a good project.

Ideally, if the California Environmental Quality Act had been effective at the time the City began its project, the City should have conducted those studies, so-called environmental studies, preliminarily, before enacting resolutions and ordinances.

But the Act was not operative at that time.

Every city and county in the state therefore has been caught in midstride in projects conceived and commenced long ago, and the best has to be made, in a legal sense, of this transition period, or during this transition period.

There has been the suggestion of criticism of the City in not filing an environmental impact report in the context of what I have categorized as vague legislation, uncertain in letter whether the City had to file or not.

I might say parenthetically it is quite clear that Section 21103 of the Public Resources Code provides that the office of planning and research shall in conjunction with appropriate state, regional and local agencies, coordinate the development of objectives, criteria and procedures, to assure the orderly preparation and evaluation of environmental impact reports required by this division.

That agency has known since November 23, 1970, what its duties were, and it has done nothing that any of us have heard about so far in helping cities and counties through their problems, so I don't think any criticism should be leveled against the City for not complying with this law that was quite vague before the Friends of Mammoth came along, and in my judgment, although not quite as it once was, is still vague.

Insofar as the injunction is concerned, this request gives rise to the problem of indispensable parties as defined by Section 389 of the Code of Civil Procedure.

The Court finds that all owners in the take area are indispensable parties and should, as hereinafter explained, be brought before this Court.

These non-party owners take on different relationships to the City, and we have discussed those categories; those who stand in contract relationship with the City have the right to sue in specific performance; those who are served party defendants have the right to continue their litigation, including request for discovery measures, which if not complied with can result in dismissal and/or other monetary sanctions against the City; those who have not been served can answer and thereafter proceed to litigation, including trial, in the same way that I have hereinabove described; those who are in the take area can commence suits in inverse condemnation, and if an injunction is granted against the City as prayed, the City would be powerless to defend itself.

The only way that the Court can control these eminent domain proceedings and/or inverse condemnation cases would be to bring these people in the take area before this Court and put them under its jurisdiction.

In the context of a preliminary injunction, no bond could be set without their participation, as we would have no accurate way of measuring damages.

I don't intend to adopt the position that these plaintiffs in this public interest case are immune from the bond provisions of CCP 529.

However, in view of the ruling that I am about to make, I am not [3 ELR 20342] going to order that these persons who are described as those in the take area be named as defendants and be made parties to this action.

In the event of an appeal, however, and the reversal of this order, the appellate court should rule on, No. 1, the indispensability of parties in the take area, and No. 2, the question of the amount of the undertaking under CCP 529.

As I have indicated, I am not willing to apply the concept that public interest litigation is immune from the provisions of CCP 529.

The real nub of the petitioners' argument for an injunction at this time is that if the City is to be permitted to continue land acquisition without interruption, there will be such a commitment, both psychological and economic, that these City officials could not and would not be able to objectively re-evaluate the Palmdale Airport project in the context of the criteria set down in the applicable public Resources Code sections.

As I have stated earlier, it seems to me that the economic impact of the Palmdale commitment is already fixed. Whether the City continues to move forward to negotiate and condemn, or whether they stand still and defend inverse condemnation suits, if permitted to do so, the economic impact appears about the same.

The City of course has argued that its costs, if enjoined from continuing the acquisition, would increase by about twelve million dollars.

This obviously would militate against an injunction because of the harm to the City, or because of harm to the City which would far outweigh any benefits to the plaintiffs.

The Court further rejects the argument that these defendants could not and would not be psychologically able to follow the mandate of the California Environmental Quality Act, now that they know for the first time that it applies to them.

I say now that they know for the first time; obviously, this is not a court like an appellate court, and it will take an appellate court to notify them in any kind of official form, but certainly for what it is worth this Court now tells them, maybe not for the first time but perhaps for the second or third time, that they are subject to the new law.

I reject the petitioners' argument that the City people are not psychologically able to objectively re-evaluate this program, because there is no evidence that they would not follow their duty now that it has been outlined to them.

I am aware of the federal cases where other courts have held countrary. I don't know in those cases if there was evidence or not, and after all, evidence is what cases are supposed to be decided on, or whether those recitations of predicted psychological infirmity reflect the subjective analysis of the nature of man by the particular court involved.

I for one choose not, without evidence, to impugn lthe integrity of the defendants in this case.

We have on the bench certain judges who, for example, were district attorneys during their legal years, who fairly try and objectively acquit defendants accused of crime; judges who were public defenders as lawyers, who fairly try and convict defendants accused of crime; judges who as lawyers represented insurance companies, but who make adequate awards to injured plaintiffs; and judges who as lawyers represented only injured plaintiffs, who decide for defendants who are insured; we have judges who personally feel certain laws and statutes make no sense or are wrong, but who fairly and objectively apply these laws because it is their duty so to do.

These illustrations to not exactly parallel the continued endeavors of the defendants in this case, but I am willing to and do ascribe to these defendants the same presumption of integrity as ascribed to those persons outlined in my short list of examples.

I do not intend to continue to restrain the City in the same manner as they have been heretofore restrained.

This ruling is based upon the cardinal proposition that the plaintiffs have not sustained their burden of proof of showing irreparable harm if the injunction is not granted as prayed.

There will be limitations on the City, as I shall explain hereafter.

The City will be able to continue its legislative commitment as amplified and further directed by the Serioty bill.

The City, by moving forward, will not run afoul of the problems confronted in the case of City of Whittier vs. Klopping or Klopping vs. City of Whittier.

The benefits to be derived by the plaintiffs by the continuance of the injunction are minimal, if any, while the burden to the defendants of those who would otherwise be named party defendantsis substantial.

The courts call this balancing the conveniences or balancing the hardships.

Environmental Defense Fund, Inc., vs. Coastside County Water District tells us that the Court has the duty, if called upon to do so, of determining the sufficiency of the report, that is to say, the environmental impact report, as an information document, but not the duty of passing on the validity of the conclusions expressed.

I say this respectfully, but given the track record of the Sierra Club, it is not outside the realm of possibility that an EIR prepared and filed in this case with the conclusion that the airport should proceed, that another lawsuit will be filed.

If we assume an environmental impact report will take two years to prepare, and that seems to be the testimony, and if we assume further there will be a lawsuit to determine the sufficiency of the report, it is easy to see that a restraining order in this case would be operative, if granted, for from three to five years; much too long to have innocent persons held in limbo.

The ultimate goal of the Environmental Quality Control Act is not the filing of a report, but to provide a means of causing people to openly think through their projects in an objective manner, all to the end that the environment not be unthinkingly or improperly despoiled.

This open and objective thinking can be done during and after land acquisition, and in this case, after the new legislation on the subject becomes operative.

I am referring of course to what I understand to be some amendments to the Public Resources Code which are not yet the law, and I suppose anybody that has to prepare a report would have to prepare it in the context of the new legislation.

Consequently, the Court overrules the demurrer to the first, second and their causes of action, it orders off calendar the Demurrer No. 4; that issue is raised in the Answer.

The Court denies relief on the first cause of action for declaratory relief as prayed for, because the issues are encompassed within the other causes of action.

On the third cause of action the plaintiffs are entitled to peremptory writ of mandate.

The defendants, and each of them, shall prepare and file an environmental impact report as required by Section 21151 of the Public Resources Code of the State of California, which report shall consider in good faith — and here's the Latin word the petitioners put in — inter alia, all alternatives to the proposed project, including but not limited to the alternative of no project at all, in addition to alternative locations.

This report shall be prepared and filed as soon as possible.

On the second cause of action for injunctive relief, the Court is going to and does hereby dissolve the preliminary injunction forthwith, erroneously referred to as a temporary restraining order.

I will not restrain the City from further land acquisition, including but not limited to closing escrows, entering into land sale contracts, filing condemnation suits, defending inverse condemnation suits, enacting resolutions and ordinances, or any other act necessary or proper to complete the originally contemplated acquisition of land in the take area.

And then your findings and judgment shall have to amplify that with reference to documents or maps, something of that kind.

MR. EINBODEN: Yes, Your Honor.

THE COURT: From the time thatsaid defendants, and each of them, became possessed of fee simple title to any parcel of real property in the acquisition or take area, said defendants and each of them are restrained and enjoined from building, grading, demolishing, or in any other way changing the character of or improvements on said acquired parcels, or from further implementing any executory provision of the planning agreement entered into heretofore between the City of Los Angeles and the County of Los Angeles, until such time as the provisions of Public Resources Code Section 21151 are complied with.

At that time this restraining order shall cease and terminate.

The Court specifically reserves jurisdiction to further implement, interpret and modify the terms of the preliminary injunction.

Now, there are probably some points I haven't covered, but that's the core of it, at least.

[3 ELR 20343]

MR. EINBODEN: May I inquire, Your Honor, with respect to the Court's last order concerning demolishing or improving properties.

In the event that safety considerations dictate perhaps the removal of a structure or a dwelling, I suggest this could be done by either us coming back into court, if the Court so desires, or the Court could perhaps consider that type of language in its judgment.

That would be the only thing that I would be concerned with.

THE COURT: Well, I thought about that myself. I can foresee, for example, that you take title to a home that's run down, and kids break into it and vandals move in and out of it, maybe transients begin causing nuisances there.

MR. EINBODEN: This has happened; we've had motorcycle gangs in the area on some of the property.

THE COURT: I think we are going to have to take that on a case by case basis. You might have to build a fence or put a guard there or tear the building down; those things are going to have to be handled.

That's why I'm reserving jurisdiction, as much as I don't like the idea of policing this thing for the next several years, assuming my order holds up, I think it's the only way we can function.

MR. PHILLIPS: Your Honor, if I may make one point with respect to acquisitions of premises and actual houses, I think one of the major problems that we have seen, particularly in the Century Freeway case, when vandalism occurs is when the state in that case acquires property, then just leaves it, without making any good faith effort to rent it. It's at that time, when the house and land is vacant, that the vandals come in.

I'd like to suggest Your Honor put in the order the City make a good faith effort to rent any houses that it may acquire, rather than tear them down, and rather than inviting this kind of vandalism.

MR. EINBODEN: Your Honor, I think we would agree to that; I think that's in the best interest of the City, to attempt to do that, and we are doing that now.

THE COURT: All right, then you can include that in the order. That will take care of that problem.

You see, I don't mean to deviate from anything I have said heretofore, but I can see where certain kinds of activity out there, Mr. Einboden, might be considered an impact on the environment; since we are waiting until the state agency comes up with some help for us, or the Supreme Court comes up with some further guidelines, or the legislature comes up with some further guidelines, the only thing we can do is take it on a case by case basis, it seems to me, as much asI don't like it, and I don't know whether I have to say so, but certainly so long as the issue is open, jurisdiction is retained. I don't know why any party who feels aggrieved could not file an order to show cause and set down a hearing as you are apparently still doing in the case —

MR. RUSHFORTH: The Century Freeway case, that's correct, Your Honor.

THE COURT: Yes.

I will be glad to speak to anything else you don't think I have covered. I didn't mean to leave anything out.

MR. RUSHFORTH: Your Honor has mentioned that this Court intends to maintain jurusdiction in this case for purposes of deciding the question which plaintiffs feel will inevitably arise in this case as to whether defendants have in fact made a good faith objective reappraisal of the alternatives of building no airport at all, of putting the airport in an alternative place.

Does this Court intend to maintain jurisdiction over the case for purposes of making that judgment?

It is our understanding, Your Honor, that implicit in Your Honor's remarks is the requirement that Section 21151 be fully complied with, that is, a good faith study be made of alternatives, as well as good faith study of the alternative of not building an airport, and of course Your Honor is familiar with our arguments as to why that becomes more and more difficult as time goes along.

THE COURT: It is certainly within the permieter of the present pleadings: I don't think you can litigate the issue of the adequacy of the EIR. I think that would be the subject of a separate lawsuit.

You see, I'm reserving jurisdiction, basically, to implementation of the restraining order, as distinguished from the mandamus.

All I'm saying to the City is, "You file a report," and I think I said "good faith," didn't I, "in good faith"?

MR. RUSHFORTH: I think you did, Your Honor.

MR. PHILLIPS: Yes.

MR. EINBODEN: Yes, Your Honor.

THE COURT: That's what I had in mind. And follow the law. The law says you've got to be in good faith.

Once you do that, this case is over. That's all you have asked for in your relief, you see.

Then if you feel it's not in accordance with the law, then obviously you have a new cause of action.

MR. RUSHFORTH: Thank you, Your Honor.

THE COURT: I might say parenthetically that counsel for the petitioners certainly represent a plaintiff or series of plaintiffs who are very dedicated and very serious in their feelings about this idea of protecting the environment.

They are to be complimented for their zeal and their pursuit of this belief in a legitimate, time honored way, which is to present their arguments to a court, and counsel for the petitioners have been before this Court in other matters and they conduct themselves in the highest professional way. They are very dedicated and skillful lawyers, and their track record indicates that they have won a lot of cases.

So when I was talking about the Sierra Club coming back on another lawsuit, I was not picking on the Sierra Club. I recognize their zeal and their interest, and as I say, they are to be complimented.

I appreciate the help that I got from all the amicus curiae.

This is a new problem, you know, and I'll take help anywhere I can get it.

Is there anything further?

MR. PHILLIPS: I don't believe so, Your Honor. Thank you.

MR. RUSHFORTH: Your Honor, plaintiffs and petitioners would like to say it has also been enjoyable to be in your courtroom.

MR. EINBODEN: City Attorney's office would like to join in that, Your Honor.

THE COURT: All right, I'll make you prepare the findings; you and Mr. Chapman I think should get together on the findings.

I don't know whether Mr. Chapman, in view of what I said, you want to on behalf of Cawood or not.

MR. CHAMPMAN: I would like to, as soon as possible.

MR. PHILLIPS: Your Honor, we are concerned with quickly appealing this matter, so we would like to have a time set when the findings will be prepared, and we would like to also comment on the findings.

THE COURT: Well, I'm ordering the City Attorney and Mr. Chapman to prepare findings in accordance with the Judicial Council Rule on the subject, and you have rights reserved to you there.

There are statutory requirements set out, and if you just — I think it's Rule 232, I have forgotten the number exactly, but you'll find your procedures there.

MR. RUSHFORTH: Thank you, Your Honor.

MR. PHILLIPS: Fine.

MR. CHAPMAN: I want to say also it was a pleasure to be before this Court, and the thoroughness with which you read the vast volume of papers was exceptional.

THE COURT: Thank you.

(Whereupon, the proceedings were concluded.)