PEOPLE DEUKMEJIAN v. Proponents of the Initiative et al., Intervenors and Appellants.

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Court of Appeal, First District, Division 3, California.

The PEOPLE ex rel. George DEUKMEJIAN, as Attorney General, etc., Plaintiff and Respondent, v. COUNTY OF MENDOCINO et al., Defendants and Appellants; Proponents of the Initiative et al., Intervenors and Appellants.

A016301.

Decided: May 20, 1983

George Deukmejian and John K. Van De Kamp, Attys. Gen., R.H. Connett, Asst. Atty. Gen., M. Anne Jennings, Allene C. Zanger, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. John A. Drummond, County Counsel, Stephen D. Underwood, Deputy County Counsel, County of Mendocino, Ukiah, for defendants and appellants. Laurens H. Silver, Sierra Club Legal Defense Fund, Inc., San Francisco, Francia M. Welker, Fort Bragg, Phillip S. Berry, Berry & Berry, Oakland, for intervenors and appellants (Sierra Club). Barry Vogel, Vogel & Rosen, Ukiah, for proponents of the Initiative and Owners of Endangered Real Property. Wesley R. Higbie, Hendrickson, Higbie, Mingst & Cole, San Francisco, amicus curiae.

At issue in this action for declaratory and injunctive relief is the validity of a Mendocino County initiative ordinance prohibiting the aerial application of phenoxy herbicides.   Summary judgment was entered for plaintiff, the State of California, on the ground of state preemption.   Defendants are Mendocino County and certain county officers (County);  among numerous intervenors for defendants are the Sierra Club and a group called the Proponents of the Initiative and Owners of Endangered Real Property (Proponents).

Neither the hazards nor the efficacy of the use of phenoxy herbicides is at issue here.   The questions raised in this appeal relate solely to the county electorate's authority to enact this ordinance:  whether the ordinance conflicts with or supplements state law;  whether the state has impliedly preempted the field of pesticide regulation or authorized the ordinance as a pollution control measure;  and whether the ordinance is preempted by federal law.   We conclude, as hereafter explained, that the state has preempted the regulation of the application of pesticides;  therefore, Mendocino County's ordinance banning aerial application of phenoxy herbicides is invalid.

Among other uses, phenoxy herbicides are used to retard hardwood growth in favor of conifer growth.  (See Sierra Club v. Peterson (9th Cir., 1983) 705 F.2d 1475.)   In February 1979 the voters of Mendocino County approved an initiative measure prohibiting the aerial application in that county of phenoxy herbicides, including but not limited to 2,4,5–T, 2,4,–D, Silvex, and any matter containing the chemical dioxin.   The ordinance includes an explanation of its purpose:  “We find and declare that it is necessary to prohibit the aerial application of phenoxy herbicides because of the dangers of drift, contamination of food and water, and irrevocable harm to natural resources.   The aerial application of phenoxy herbicides, in light of said dangers, threatens the right of the people of Mendocino County to be secure in their homes and to enjoy the peaceful, undisturbed use of private property and public lands.”   A violation of the ordinance is a misdemeanor.

In this action filed by the Attorney General on behalf of the People of the state, the trial court granted summary judgment declaring the ordinance invalid.   The court concluded that the state Legislature has entirely preempted the field of pesticide and herbicide regulation, leaving both the County's board of supervisors and the voters of the County without authority to prohibit the aerial spraying of these chemicals.

The State's Pesticide Regulatory Program

Both the state and the federal governments extensively regulate the use of pesticides.1  (7 U.S.C. § 136 et seq.;  Cal.Food & Agr.Code, § 11401 et seq.;   see Comment, The Regulation of Pesticide Use in California (1978) 11 U.C. Davis L.Rev. 273, 278.)   Federal law requires registration of pesticides with the Environmental Protection Agency, prohibits the sale within a state of unregistered pesticides, and establishes standards for the certification of pesticide applicators, among other requirements;  in addition, federal law permits states to operate their own regulatory programs subject to certain limitations.  (Ibid.)

In California, division 6 of the Food and Agricultural Code generally regulates those who are in the business of recommending, selling, and applying pesticides, and requires, inter alia, that they be licensed by the state.   (See, e.g., Food & Agr.Code, §§ 11701–11711, 12001–12024, 12101–12112.)   Division 7 of the same code regulates more directly the use of agricultural chemicals.  (Id., § 12501 et seq.)   Among the stated purposes of the regulatory scheme are:  (1) providing for the safe and efficient use of pesticides essential for production of food and fiber and for protection of the public health and safety;  (2) protecting the environment from harmful pesticides by prohibiting, regulating, or controlling their use;  (3) assuring agricultural and pest control workers of safe working conditions where pesticides are present;  and (4) permitting agricultural pest control by competent and responsible licensees and permittees under strict control.  (Id., § 11501.)

The director of the Department of Agriculture and the agricultural commissioner of each county under the director's supervision enforce the state's regulatory program.  (Food & Agr.Code, § 11501.5.)   The director is authorized to adopt regulations governing the conduct of the pest control business, which can be of statewide applicability or tailored to local needs.   (Id., §§ 11502, 14006.)   In addition, the county commissioner, who is appointed by the county board of supervisors (id., § 2121), is authorized to adopt regulations in light of local conditions, subject to the director's approval.  (Id., § 11503.)   With certain exceptions not relevant here, no person is to use any pesticide for any agricultural use except under a written permit of the commissioner.  (Id., § 14006.5.)

The code also mandates the director to designate a list of “restricted materials” based upon danger to public health, or hazards to applicators and farmworkers, animals or crops, and the environment, and requires the adoption of regulations governing their application.  (Food & Agr.Code, §§ 14004.5, 14005.)   Those regulations are to prescribe when, where, and how a restricted material may be used in different areas of the state, and may prohibit its use in such areas.  (Id., § 14006.)   With even more specificity, the code requires the director to adopt regulations governing the use of 2,4,–D and any other herbicide which he determines is injurious to any crop being grown in any area of the state.  (Id., § 14033.)

Consistent with these legislative directives, detailed regulations have been promulgated designating “restricted materials,” among which are the phenoxy herbicides.  (Cal.Admin.Code, tit. 3, § 2450, subd. (m).)  Regulations also establish criteria and procedures to be used by commissioners in issuing permits for the use of restricted materials.   For example, prior to issuing such a permit, the commissioner is to determine if a “substantial adverse environmental impact” may result from its use.   If such an impact is likely, the commissioner is to determine if there is a feasible alternative, including the alternative of no pesticide application.  (Id., § 2452, subd. (j)(8).)   Numerous other regulations govern the use of particular restricted materials.   (See, e.g., id., §§ 2453–2456, 3135–3145.)   Regulation 2458 explicitly restricts the aerial application of herbicides, by specifying when and where herbicides may be applied by aircraft, under what wind conditions and at what altitude discharge is permitted, and what equipment is required.  (See also id., § 2457.)

Preemption by State Law

Defendants contend that this statutory scheme does not indicate that the Legislature intended to preempt the field of pesticide control, and that the local ordinance is actually authorized by state law.

 The California Constitution restricts local lawmaking to “all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  (Cal. Const., art. XI, § 7.)  “Local legislation in conflict with general law is void.   Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations].”  (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807–808, 100 Cal.Rptr. 609, 494 P.2d 681.)  “Local legislation may be preempted by implication if the Legislature's intent to occupy a particular field is apparent from the whole purpose and scope of the legislative scheme.   Preemption by implication exists if one of three tests is met:  “ ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.’ ”  (Galvan v. Superior Court (1969) 70 Cal.2d 851, 859–860, 76 Cal.Rptr. 642, 452 P.2d 930;  Bell v. City of Mountain View (1977) 66 Cal.App.3d 332, 338, 136 Cal.Rptr. 8.)   The number of statutes dealing with a subject is not determinative alone;  the court must determine whether a “patterned approach” to the subject can be detected.  (Galvan, supra, 70 Cal.2d at pp. 861–862, 76 Cal.Rptr. 642, 452 P.2d 930.)   In determining whether there has been an implied preemption, the definition of the legislative field or subject matter which is adopted is important.  “If the definition is narrow, preemption is circumscribed;  if it is broad, the sweep of preemption is expanded.”   (California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 27–28, 61 Cal.Rptr. 618.)   Finally, if the subject matter has been fully occupied by the state, there is no room for supplementary or complementary local legislation.  (Lancaster v. Municipal Court, supra, 6 Cal.3d at p. 808, 100 Cal.Rptr. 609, 494 P.2d 681.)

 Despite the broad scope of the state's regulatory program, defendants rely on Food and Agricultural Code section 14007 to argue that the statutory scheme authorizes rather than preempts local regulation.   That section provides:  “Every permit which is issued under the regulations adopted pursuant to this chapter is conditioned upon compliance with the law and regulations and upon such other specified conditions as may be required to accomplish the purposes of this chapter.”   Defendants reason that because local ordinances are laws, the Legislature intended to allow local regulation of pesticide use.   Compliance with the law, however, means compliance with valid law.  (See People v. Williams (1962) 207 Cal.App.2d Supp. 912, 915, 24 Cal.Rptr. 922.)   If the whole purpose and scope of the legislative scheme indicates that the Legislature intended to occupy the field to the exclusion of local regulation, the Mendocino ordinance is invalid.  (Galvan v. Superior Court, supra, 70 Cal.2d at p. 859, 76 Cal.Rptr. 642, 452 P.2d 930.)

At issue in Galvan v. Superior Court, supra, 70 Cal.2d 851, 76 Cal.Rptr. 642, 452 P.2d 930, was the validity of a local ordinance requiring registration of firearms within the city.   At the time, although the state had enacted numerous statutes involving weapons, it had left substantial areas unregulated.   The court detected no “patterned approach” to weapons control, and concluded that the state did not show a general scheme for the regulation of the subject of gun registration.  (Id., at pp. 862–863, 76 Cal.Rptr. 642, 452 P.2d 930.)

Similarly, in Bell v. City of Mountain View, supra, 66 Cal.App.3d 332, 136 Cal.Rptr. 8, the court rejected an argument that the state had fully occupied the field of ambulance licensing so as to invalidate a city's licensing ordinance.   The court noted that the state's licensing scheme did not include ambulances used for non-emergency purposes, and did not regulate other areas of the ambulance business, such as rates, advertising, or distribution of services.  (Id., at p. 338, 136 Cal.Rptr. 8.)

In contrast, in Baldwin Park County Water Dist. v. County of Los Angeles (1962) 208 Cal.App.2d 87, 25 Cal.Rptr. 167, the court analyzed provisions of the Water Code, and concluded that it showed an intention by the Legislature to adopt a “general and complete scheme and plan for conserving water, and regulating the production, control, distribution, and use of water by ․ water districts ․”  Therefore, a Los Angeles County ordinance which purported to impose upon water districts requirements in addition to those imposed by the Legislature could not be applied to those districts.  (Id., at p. 97, 25 Cal.Rptr. 167.)

Here, too, the Legislature has adopted a “general and complete scheme” for regulating the use of pesticides in the state.   The statutory and regulatory scheme is comprehensive and encompasses every aspect of pesticide use, from the licensing of applicators to the conditions under which particular chemicals can be applied.   The regulatory program also exhibits a “patterned approach” to the control of pesticide use, with numerous statutes and regulations of statewide applicability, but with county agricultural commissioners also able to adopt regulations in response to local needs, subject to the approval of the director.   Even if we were to define the legislative field very narrowly as “the aerial spraying of phenoxy herbicides,” as the County would have us do, we would have to conclude the state's regulation of that particular subject is also comprehensive.   As we have already indicated, regulations specify in detail when, where, and how these herbicides may be applied by aircraft, and what equipment must be used.

 Before we can conclude that either pesticide regulation in general or aerial spraying of herbicides in particular has been preempted by state law, however, we must consider defendants' contention that the local ban is a pollution control measure authorized by both the Health and Safety and the Water Codes.

Division 26 of the Health and Safety Code sets out the state's statutory scheme for regulating air pollution.  (Health & Saf.Code, § 39000 et seq.)   An “air pollutant” is broadly defined as “any discharge, release, or other propagation into the atmosphere ․”  (Id., § 39013.)   The State Air Resources Board is charged with coordinating efforts to attain and maintain air quality standards, and to attack pollution from motor vehicles.  (Id., § 39003.)   Local and regional authorities have primary responsibility for control of pollution from all nonvehicular sources, and are expressly authorized to establish stricter standards than those set “by law” or by the board.  (Id., § 39002.)

A comparable scheme for controlling the quality of the state's waters appears in the Porter-Cologne Water Quality Control Act.  (Wat.Code, § 13000 et seq.)   The State Water Resources Control Board and regional quality control boards (id., § 13050, subds. (a), (b)) are primarily responsible for the coordination and control of water quality.  (Id., § 13001.)   However, no provision of that act or ruling of the state or regional boards is a limitation on the power of a city or county “to adopt and enforce additional regulations, not in conflict therewith, imposing further conditions, restrictions, or limitations with respect to the disposal of waste or any other activity which might degrade the quality of the waters of the state.”  (Id., § 13002, subd. (a), emphasis added.)

As it is apparent that the aerial spraying of herbicides may have some effect, either short or long term or both, on air and water quality, such spraying is undoubtedly a matter of concern to all those charged with control of air and water pollution.   In fact, the Department of Agriculture is required to consult with public agencies “which have jurisdiction by law over the use of pesticides or over activities or resources which may be affected by the use of pesticides” on decisions relating to the registration, renewal of registration, and reevaluation of pesticides, and on proposals to amend, adopt, or repeal a standard or regulation of the pesticide regulatory program, or a county regulation.   Those public agencies include the State Water Resources Control Board and the Air Resources Board.  (Cal.Admin.Code, tit. 3, §§ 2443, 2444.)   Nevertheless, we cannot agree with defendants that either section 39002 of the Health and Safety Code or section 13002, subdivision (a), of the Water Code authorizes the Mendocino County ban on aerial spraying.

Despite their authorization of local standards and limitations, both the Water Quality Act and the air resources legislation also expressly provide that nothing therein shall be a limitation on “[t]he power of a state agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer.”  (Wat.Code, § 13002, subd. (d);  Health & Saf.Code, § 41509, subd. (c).)  Unquestionably the Department of Agriculture is a state agency permitted and required to enforce and administer the pesticide regulatory program embodied in the Food and Agricultural Code and in title 3 of the California Administrative Code.

 When apparent inconsistencies or conflicts appear in separate codes, for purposes of statutory construction the codes must be regarded as blending into each other and constituting a single statute.  (Pacific Motor Transport Co. v. State Bd. of Equalization (1972) 28 Cal.App.3d 230, 235, 104 Cal.Rptr. 558.)   The statutes must be read together and construed to give effect, when possible, to all the provisions.  (Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749, overruled on other grounds in Frink v. Prod (1982) 31 Cal.3d 166, 180, 181 Cal.Rptr. 893, 643 P.2d 476.)   The only reasonable way to harmonize these codes and give some effect to all their provisions is to conclude that although local agencies may have power to impose more stringent controls on some activities relating to air and water quality than those imposed by the state, that power does not extend to the regulation of pesticide use.   That construction is also consistent with the rule that specific provisions relating to a particular subject will govern with respect to that subject as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate.  (Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959, 965, 131 Cal.Rptr. 172.)

 We conclude, therefore, that the state has impliedly preempted the regulation of pesticide use in the state, leaving Mendocino County without authority to enact an ordinance banning the aerial application of phenoxy herbicides.   The fact that the ordinance was enacted by initiative does not alter our conclusion.   Defendants argue at length that because the ordinance was an initiative, it has special status and cannot be preempted, even if a similar ordinance adopted by the board of supervisors would be.   Defendants' reliance on Associated Homebuilders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473 and Ortiz v. Board of Supervisors (1980) 107 Cal.App.3d 866, 166 Cal.Rptr. 100 in support of this proposition is misplaced.   In Associated Homebuilders, the court stated that procedural requirements could not be imposed on the use of the initiative which would result in only the city and not the voters being able to enact zoning measures.  (Associated Homebuilders, supra, 18 Cal.3d at p. 594, 135 Cal.Rptr. 41, 557 P.2d 473.)   In Ortiz, the court held that a county's board of supervisors could not deprive local voters of their right to exercise the referendum on an ordinance redistricting supervisorial districts by making the ordinance immediately effective.  (Ortiz, supra, 107 Cal.App.3d at pp. 869–871, 166 Cal.Rptr. 100.)   Neither case holds that in the face of state preemption, local voters can legislate where local legislatures cannot, and we have found no authority which does so hold.  (See Comment, The Initiative and Referendum's Use in Zoning (1976) 64 Cal.L.Rev. 74, 104;  Comment, The Scope of the Initiative and Referendum in California (1966) 54 Cal.L.Rev. 1717, 1732–1733.)

In Associated Homebuilders, moreover, while the court disapproved of cases holding that general law cities cannot adopt zoning ordinances by initiative, it distinguished those cases which bar the use of the initiative in a situation where “the state's system of regulation over a matter of statewide concern is so pervasive as to convert the local legislative body into an administrative agent of the state.  [Citations.]”  (Associated Homebuilders, supra, 18 Cal.3d at p. 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473.)   This is such a situation.   The role of the county board of supervisors in the state's pesticide regulation program is limited to administrative functions, such as appointing the county commissioner.  (See, e.g., Food & Agr.Code, §§ 2121, 2242, 2243, 2244, 2277.)   The board has no power to enact pesticide use regulations;  that power belongs to the director of the department and to the local commissioner, subject to the approval of the director, not of the board.

 Defendants' contention that the ordinance is entitled to special deference because it touches upon health and safety is without merit, as a local ordinance relating to health and safety can be preempted by state law.   (See Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241, 247–248, 129 Cal.Rptr. 882.)   Proponents' argument that only a compelling state interest will justify invalidating the ordinance is also without merit, and indicates that Proponents may not fully understand the principles of preemption.

In light of our conclusion that this ordinance is invalid because of state preemption, we need not consider the argument of the Attorney General and amicus, the California Forest Protective Association, that the ordinance is also preempted by federal law.

Judgment is affirmed.

FOOTNOTES

1.   Phenoxy herbicides are pesticides under both state and federal law.   According to federal law, the term pesticide includes “any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.”  (7 U.S.C. § 136(u).)   According to California law, the term pesticide means any “economic poison”;  among economic poisons are any substances intended to be used for defoliating plants, or regulating plant growth.  (Food & Agr.Code, §§ 11404, 12753.)

SCOTT, Acting Presiding Justice.

FEINBERG and BARRY–DEAL, JJ., concur.

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