Is the Oceano dunes a Machine or other contrivance?

March 13, 2015

OPINION BY KEVIN RICE

If you answer “no” to the above question, you agree with Friends of Oceano Dunes.

Three years of litigation challenging the Air Pollution Control District’s “dust rule” (Rule 1001) regulating Oceano Dunes State Vehicular Recreation Area has boiled down to one simple question: Is Oceano Dunes an “article, machine, equipment or other contrivance?” On Wednesday of this week, that question came before a three judge panel of the Second District Court of Appeal in Ventura.

The question stems from Health and Safety Code section 42300(a) which authorizes that air pollution control districts may require a permit for any “article, machine, equipment or other contrivance which may cause the issuance of air contaminants.”

Simply put, if Oceano Dunes is not an “article, machine, equipment or other contrivance” the SLO County APCD cannot require Oceano Dunes to obtain a permit to operate.

On Wednesday, three appellate justices heard opposing arguments from Friends of Oceano Dunes and SLO County APCD Counsel Raymond Biering. Joining in, was Santa Barbara County Counsel William Dillon arguing for the amicus curiae of six air pollution districts (Santa Barbara APCD, Bay Area AQMD, Mojave Desert AQMD, Monterey Bay AQMD, North Coast Unified AQMD, and Great Basin APCD). Also joining in amicus, was attorney Babak Naficy for the Sierra Club.

Each side received thirty minutes to argue. Oddly, APCD argued only a few minutes, giving most of their time to Mr. Dillon of Santa Barbara. APCD gave up ten minutes (one-third) of their time to the Sierra Club.

The court docket reads, on March 2, “Raymond A. Biering, Esq. (counsel, SLO APCD) confirming that he will share 10 minutes with Amicus Curiae SIERRA CLUB at Oral Argument”.

I found it disconcerting and questionable that APCD shared its time with the Sierra Club. The APCD has always maintained it does not intend to close Oceano Dunes, yet the Sierra Club has long advocated for complete closure. At least one of the justices noticed this point, as I relate below.

Background

Subsequent to an adverse ruling in 2013  by the SLO County Superior Court, Friends of Oceano Dunes appealed. Friends of Oceano Dunes contends SLO County APCD exceeded the authority granted to it by the California Legislature in that Health and Safety Code section 42300(a) does not authorize APCD to require a permit to operate a state park. Friends of Oceano Dunes argues that a state park is not an “article, machine, equipment or other contrivance.”

While conceding Oceano Dunes state park is not an “article, machine, or equipment”, SLO County APCD and the amici air districts and Sierra Club argue Oceano Dunes is a “contrivance.” They offer various definitions from Webster’s Dictionary: “A ‘contrivance’ is commonly defined as the act of ‘inventing, devising or planning,’ ‘ingeniously endeavoring the accomplishment of anything,’ ‘the bringing to pass by planning, scheming, or stratagem,’ or ‘[a]daption of means to an end; design, intention.’” The air districts argue “contrivance is also defined as ‘something contrived,’ which is ‘[t]o bring about by artiface’ or ‘[t]o invent or fabricate.’”

In essence, SLO County APCD argues “contrivance” is nearly anything that can be contrived in the human mind, and therefore, the Health and Safety Code should be interpreted broadly, granting expansive authority to APCD to require a permit for many things.

In reply, Friends of Oceano Dunes argues a broad interpretation of “contrivance” would grant APCD authority to require a permit for just about anything. Friends argues, “if the Legislature meant to grant permitting authority to any source of air pollution of any kind, then the Legislature would have simply said any source ‘of any kind’ or used the word ‘anything’ when describing what items could be permitted.” Friends continues, “It is therefore notable that the Legislature took the time to list specific items rather than including air pollution sources ‘of any kind.”

Friends of Oceano Dunes cites a 1949 case ruled on by the same Second District Court of Appeal in which a four year old was bitten by a circus animal. The Plaintiff asserted the Defendant was keeping an “artificial and dangerous contrivance.” However, the Court ruled, “An animal in a cage is not artificial and it does not fall within the definition of the word ‘contrivance’ which is defined in Webster’s New International Dictionary […] as ‘a mechanical device; an appliance.”

Friends also cites a well-recognized canon of statutory interpretation known as ejusdem generis. This canon states when a law sets out a list of items (i.e., “article, machine, equipment”), those items which follow in the list include only things of like kind or character. Because “article, machine or equipment” are all mechanical in nature, Friends contends “contrivance” must be construed similarly.

In their opening brief, Friends of Oceano Dunes writes, “By interpreting the phrase ‘other contrivance’ to mean something as large and different as a sprawling recreational park like Oceano Dunes, both the [Superior] court and the [APCD] construed the term to mean something of a completely different character, nature and scope than the other items listed in section 42300(a). To do so is not reasonable because it offends the long-standing canon of ejusdem generis.”

Oral arguments

It is not wise to presume the eventual decision of a court based upon the questions and interrogations of the justices. But, I must say, the appellate justices lobbed some quite provocative remarks toward APCD.

Friends of Oceano Dunes attorney Tom Roth opened, immediately raising some eyebrows by reserving twenty minutes of his thirty minutes time for rebuttal. One justice remarked he had never seen anyone reserve so much time for rebuttal. Mr. Roth laid out the generalities of the case, asking the Court to strike APCD’s permit requirement from Rule 1001.

Next, Mr. Biering spoke for APCD. In opening, Mr. Biering restated the question before the court, “Is the facility a ‘contrivance’?”

But, Mr. Biering hardly got that out before Presiding Justice Gilbert intervened, asking, “What’s the ‘facility’?”

Mr. Biering related that Oceano Dunes is a “facility” because it has fences, a kiosk, and restrooms, and it is this “facility” that produces pollution.

Justice Gilbert prodded, “Pollution comes from this facility, like the restrooms?”

Biering launched into an overview of APCD’s position, explaining, “It’s not the vehicles that produce pollution.” He explained vehicles break up the “crust” on the dunes that liberates dust to blow when winds occur.

To be clear, I don’t buy into the APCD’s “crust” theory, and neither does the California Geological Survey or the Coastal Commission. Nevertheless, APCD and its non-geologist “experts” observed crust on some dry lake beds in Mono County and purports there is a “crust” on Oceano Dunes. APCD convinced its Board of Directors that “crust” exists, and that debate between that political fact and actual scientific fact will rage on.

Mr. Biering argued to the Court that APCD possesses authority to require a permit of Oceano Dunes.

Justice Gilbert asked, “What authority?”

Taking a stand, Mr. Biering said, “It’s a ‘contrivance.’”

Justice Gilbert, “What’s ‘it’?”

Biering, “The park.”

Now, it seems to me the justice was not playing kindergarten word games, but was actually trying to elicit a firm stand from Mr. Biering on what characteristics APCD feels makes Oceano Dunes into a “facility” and a “contrivance.” Is it restrooms? Fences?

Mr. Biering then reiterated the Webster’s Dictionary definition of “contrivance”, instigating Justice Perren to remark, “You’ve covered every conceivable thing one could do with land.”

Presiding Justice Gilbert opined, “One could make the argument that your argument is a contrivance.”

Mr. Dillon of Santa Barbara County then took up arguments. Dillon emphasized the air district view that the definition of “contrivance” is “straight out of Webster’s Dictionary.”

Justice Yegan injected, “I thought you were going to say, ‘straight out of Ambrose Bierce’s, The Devil’s Dictionary’.”

That seemed harsh, I thought. And, in checking, I do not find “contrivance” in The Devil’s Dictionary.

Justice Yegan postulated to Mr. Dillon, “What if you win? There can be a Rule that there can be no dune buggies on this beach.”

Mr. Dillon insisted air districts apply a reasonable approach. That air districts would not propose such a harsh rule.

However, Justice Yegan then pointed at the Sierra Club’s attorney, “The last time he was here, the guy you’re sitting next to, your co-amici, he said his goal is to get rid of every vehicle on that beach.”

More inquiry followed as to the proper interpretation of “contrivance.” Justice Yegan stated, “Frankly, it violates the ejusdem generis canon … How could a park be an article or machine?”

Justice Gilbert added, “It’s the general term following specifics,” referring to “contrivance” following “article, machine or equipment.”

Eventually, the Sierra Club attorney, Babak Naficy took his turn. Mr. Naficy attempted to clarify the Sierra Club’s position, stating, their “position was not to ban every vehicle from Oceano Dunes. The Sierra Club position was that a ban should be effectuated by the Local Coastal Plan.”

Justice Yegan remarked, “I could have sworn you wanted to stop all of it,”  and reflected that out of 1,600 miles of coastline, Oceano Dunes is only a two mile area.

In a previous lawsuit lost in front of the appellate court, the Sierra Club sought to ban off-highway vehicle recreation on the entire county owned 584-acre La Grande Tract within Oceano Dunes.

Mr. Naficy made additional arguments for an expansive interpretation of “contrivance.” Mr. Naficy opined that public policy and health dictate a broad interpretation.

Justice Gilbert remarked, “The law, we hope, is designed to give a sense of predictability… We have to write an opinion that someone will read, and that will make sense.”

Friends of Oceano Dunes rebuttal

Attorney Tom Roth closed, “Why Friends of Oceano Dunes cares about a permit? If you have an operating permit, the APCD could stop all use of the park.”

Mr. Roth cited a 2012 email from Supervisor Adam Hill in which Hill wrote, “This will inevitably necessitate SLO County having to fence off and patrol the La Grande tract, thereby significantly reducing the recreation area.”

Mr. Roth made further points that Oceano Dunes is not a “direct source” or “point source” of emissions. Such sources are machines and clearly fall under “article, machine, equipment or other contrivance,” and can be regulated by a permit. Roth elucidated the history of the Health and Safety Code section in dispute, which was written by Los Angeles County in 1947. At that time, the County of Los Angeles sought to regulate engines, machines, and contrivances. The original legislation made no mention of large plots of land such as parks.

Case argued and submitted

We can anticipate a ruling from the Appellate Court within 45 days or so.