Sweeney v. San Francisco Bay Conservation etc. CA1/3 ( 2021 )

Filed 2/18/21 Sweeney v. San Francisco Bay Conservation etc. CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JOHN D. SWEENEY et al.,
Plaintiffs and Respondents,
A153582
v.
SAN FRANCISCO BAY (Solano County
CONSERVATION AND Super. Ct. No. FCS048136)
DEVELOPMENT COMMISSION et
al.,
Defendants and Appellants.
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
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.
1
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.
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, §
2
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 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, § 66637.)
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
(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
3
and the Suisun Marsh 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 principle 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. 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
4
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
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.
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 and decided today in Sweeney v. California Regional
Water Quality Control Board, Case Nos. A153583 & A153585.
5
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
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
6
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, § 29601 [“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…”].)
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.)
“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
7
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 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.)
II. Permit Requirements under the Preservation Act
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
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.)
8
development permit. (Pub. Resources Code, § 29500.) Within Suisun
Marsh’s primary management area, such development permits shall be
obtained from BCDC. (Pub. Resources Code, § 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, § 29520.)
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 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
9
“object of such repair” within 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 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
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.
10
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 local protection program, or IMP, does not require a
marsh development permit.
The parties agree that the local protection program for the Site 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
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
11
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 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 that local
protection program.
12
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 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 that placement of fill to close each
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.
13
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.
A. McAteer-Petris Act
The Mc-Ateer 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.)
“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.)
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.)
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.
14
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 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
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 kite-boarding.”
15
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 gap between 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.) BCDC’s findings on its 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
16
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.)
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 (Bajakajian).) The California Constitution contains a similar
protection. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37
Cal.4th 707, 728 (R.J. Reynolds).)7 The touchstone of constitutional inquiry
under the excessive fines clause is the principle of proportionality.
(Bajakajian, at p. 334.) 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
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.)
17
penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s
ability to pay.” (R.J. Reynolds, at pp. 728, 730.) “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 (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 supports the
trial court’s conclusion that “there is no evidence [Sweeney] should have
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.
18
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.) 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 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 [reversal
19
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.) 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 [$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’ 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
20
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, § 11332 [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 Cal.3d 865, 873.) 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.) “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.
21
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
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
22
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,
italics omitted.) “To prove a due process violation based 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.) 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 (Pleasanton); TWC Storage,
LLC v. State Water Resources Control Bd. (2010) 185 Cal.App.4th 291, 296.)
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”
23
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.
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, § 11227.) A Deputy Attorney General attends the hearing to
advise the Enforcement Committee on legal issues. (Cal. Code Regs., tit. 14,
24
§ 11229.) 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.
In Pleasanton, supra, 211 Cal.App.4th 522, the plaintiff brought a
retirement pay claim before the Public Employees’ Retirement System
(PERS). (Id. at p. 528.) An evidentiary hearing was held before an
administrative law judge (ALJ) who denied the claim. (Id. at p. 529.) 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. 529-530.) Also included was a document prepared by the
25
plaintiff’s counsel advocating for the rejection of the proposed decision. (Id.
at p. 530.) 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.) 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 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
26
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 [no authority says agency
decision-making body is 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 (Morongo).) Also, simply
because the Enforcement Committee members were Commissioners, rather
27
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.) 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 “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
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
28
2. 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 unacceptable risk of bias.” (Morongo, supra, 45
Cal.4th at p. 741.) This is sometimes referred to as the “totality-of-the
circumstances approach.” (Id. at p. 740.) 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. 23, § 648 et seq.), and reasonable time limitations are
necessary and inevitable. (Cf. Reed v. California Coastal Zone Conservation
Com. (1975) 55 Cal.App.3d 889, 895 [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
mail the recommended enforcement decision to all respondents and to all
Commissioners.”].) Staff did so.
29
reasonable time 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, § 11335.) 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
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
30
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 1024, 1034.) 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 to set aside the BCDC Order, and for
further proceedings consistent with this opinion.
Appellants are awarded costs on appeal.
31
_________________________
Siggins, J.*
WE CONCUR:
_________________________
Fujisaki, Acting, P.J.
_________________________
Jackson, J.
*
Assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
32