Title: Friends of Mammoth et al., Plaintiffs and Appellants, v. Board of Supervisors of Mono County et al., Defendants and Respontents
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Title: Friends of Mammoth et al., Plaintiffs and Appellants, v. Board of Supervisors of Mono County et al., Defendants and Respontents
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Abstract: Jake Varn Collection - Friends of Mammoth et al., Plaintiffs and Appellants, v. Board of Supervisors of Mono County et al., Defendants and Respontents (JDV Box 86)
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FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1049
Cite as 502 P.2d 1049


104 CaLRptr. 761
FRIENDS OF MAMMOTH at al.,
Plaintiffs and Appellants,
V.
BOARD OF SUPERVISORS OF MONO
COUNTY et al., Defendants
and Respondents;
INTERNATIONAL RECREATION, LTD.,
Real Party in Interest and Respondent.
Sac. 7924.
Supreme Court of California,
In Bank.
Sept. 21, 1972.
As Modified on Denial of Rehearing
Nov. 6, 1972.


Proceeding on petition for writ of ad-
ministrative mandamus attacking validity
of the granting of use permit by county
board of supervisors. The Superior
Court, Mono County, Walter R. Evans,
J., entered judgment denying the writ and
the plaintiffs appealed. The Supreme
Court, Mosk, J., held that county board of
supervisors to which application was made
Sfor conditional use permit for purpose of
.constructing proposed multistory condo-
S-miniums and stores and restaurant on a
five and one-half acre parcel of land in pre-
dominantly mountainous and open range
country were required to consider whether
the proposed construction might have a
significant effect on environment and if
so to prepare an environmental impact
report prior to its decision to grant the
use permit.
Reversed with directions.
SSullivan, J., filed a dissenting opinion.



L Statutes e=181(1)
Absent a single meaning which is ap-
parent on face of statute, court is required
to give it an interpretation based on legisla-
tie intent with which it was passed.
1 Health and Environment e=25.10
Analysis of Environmental Quality Act
f 1970 including section requiring local
PWrnmental agencies to make an environ-
502 P.2d--b6.t


mental impact report on any project they
intend to carry out which might have a
significant effect on environment and to
submit it to appropriate local planning
agency shows legislative intent to include
private activities for which a permit, lease
or other entitlement is necessary. West's
Ann.Public Resources Code, 21000,
21000(a-g), 21001, 21001(a-g), 21151, 22000
et seq.

3. Statutes =214
There is judicial reticence to rely
on statements made by individual mem-
bers of legislature as an expression of the
intent of the entire body, and other ex-
trinsic aids to determine legislative intent
are generally more persuasive.

4. Health and Environment 825.5
Legislature intended Environmental
Quality Act to be interpreted in such man-
ner as to afford fullest possible protection
to environment within the reasonable scope
of the statutory language. West's Ann.
Public Resource3 Code, 21000-21151,
21000(a).

5. Statutes S189
Mere literal construction of a section
in statute should not prevail if it is op-
posed to the intention of legislature ap-
parent by whole statute and if words are
sufficiently flexible to admit of some other
construction it is to be adopted in order to
effectuate that intent.

6. Statutes e=181(2)
Court may not give unreasonable con-
struction to a statute.

7. Statutes =184
Objective sought to be achieved as
well as evil to be prevented is of prime
consideration in interpretation of statute,
and where word of common usage has more
than one meaning that one which will best
attain purpose of statute should be adopted
even though ordinary meaning of word is
enlarged or restricted and especially if
necessary to avoid absurdity or to prevent
injustice.








502 PACIFIC REPORTER, 2d SERIES


8. Statutes -226
Since neither dictionary definition nor
Environmental Quality Act itself provides
court with a tool to use in interpreting
word "project" as used in section requir-
ing local governmental agencies to make
environmental impact report on projects
they intend to carry out, Supreme Court
turned to the National Environmental Pol-
icy Act on which the California Act ap-
peared to be patterned. West's Ann.Pub-
lic Resources Code, 21151; National En-
vironmental Policy Act of 1969, 2 et seq.,
102(2)(C), 42 U.S.C.A. 4321 et seq.,
4332(2) (C).

9. Health and Environment 0=25.10
County board of supervisors to which
application was made for conditional use
permit for purpose of constructing pro-
posed multistory condominiums and stores
and restaurant on a five and one-half acre
parcel of land in predominantly moun-
tainous and open range country were re-
quired to consider whether the proposed
construction might have a significant ef-
fect on environment and, if so, to prepare
an environmental impact report prior to its
decision to grant the permit. West's Ann.
Public Resources Code, 21151.
10. Health and Environment C=25.10
Phrase "they intend to carry out" as
used in statute requiring local gdvernment-
al agencies to make an environmental im-
pact report on project they intend to carry
out which may have a significant effect on
the environment means only that before
an environmental impact report becomes
required the government must have some
minimal link with the activity either by di-
rect proprietary interest or by permitting,
regulating, or funding private activity.
West's Ann.Public Resources Code, 21151.
See publication Words and Phrases
for other judicial constructions and
definitions.

11. Health and Environment C=25.10
Under statute which related to con-
tents of environmental impact report and
which requires the detailing of any ad-
verse environmental effects which cannot


be avoided if proposal is implemented, then
is no requirement that the adverse effect
be considered significant before they art
required to be listed. West's Ann.Puliic
Resources Code, 21000, 21001, 21100ib.
d, f).
12. Health and Environment S=25.10
If adverse consequences to environ-
ment as pointed out in environmental im.
pact report can be mitigated or if feasible
alternatives are available, proposed activity
such as issuance of a permit should not be
approved, and in making these determnma.
tions concrete concepts, not mere aphorisms
or generalities, must be considered. West's
Ann.Public Resources Code, 21000.
21001, 21100(b-d, f).
13. Health and Environment e25.10
Broad purpose of the Environmental
Quality Act which is to compel local gov-
ernments to study and record the environ-
mental implications of proposed activities
before they are acted upon cannot be frus-
trated by procedural details surrounding
the filing of reports, and those private
projects for which no report is required
under that section of Government Code re-
lating to reports to planning agencies oa
acquisition of real property or construction
of public buildings must still be proceeded
by the environmental impact repeat.
West's Ann.Gov.Code, 65100 et sq,.
65350-65402; West's Ann.Public Resour m
Code, 21151.
14. Parties e-sl
Mere fact that individual pursued ad-
ministrative remedies would not as a matter
of course entitle him to be included in a
subsequent class action, since exhaustion o0
administrative remedies does not nec*
sarily provide the well-defined community
of interest in questions of law and fact
involved affecting parties to be represented
as required in class actions.
15. Parties =S10
Since two plaintiffs in class acting.
albeit unnamed plaintiffs, had previousJ
appeared before county board of super-
visors with respect to the granting of con-
ditional use and building permits and had


1050 Cal.


r-- II






FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1051
Cite as 502 P.2d 1049


not sought to be excluded from class, doc-
trine of exhaustion of administrative reme-
dies had been effectuated and named plain-
tiffs would not be required to personally
appear in addition to others before the
board in order to bring class suit.
16. Zoning C=584
Where judicial relief from action of
county board of supervisors in approving
conditional use and building permits was
sought within 30 days of board's decision
as required by county ordinance and relief
was denied by Court of Appeals without
prejudice to commencement of action in
the superior court, the 30-day period did
not preclude superior court review under
the promptly refiled identical petition.
West's Ann.Const. art. 6, 10; West's
Ann.Code Civ.Proc. 396.
17. Zoning e-439
Under county zoning ordinance per-
mitting the granting of use permits by plan-
ning commission only when it has found
certain specified items, it was not re-
quired that the findings be in writing, es-
pecially in view of fact that a written en-
vironmental impact report was required
under the Environmental Quality Act.
West's Ann.Public Resources Code,
21000-21151, 21000(a).
18. Health and Environment -S25.10
Courts will not countenance abuse of
the significant effect qualification of the
Environmental Quality Act as a subterfuge
to excuse the making of impact reports
otherwise required by Act. West's Ann.
Public Resources Code, 21000, 21001,
21101, 21102, 21150, 21151.
19. Health and Environment -=25.5
Majority of private projects for which
government permit or similar entitlement is
necessary are minor in scope and hence in
the absence of unusual circumstances have
little or no effect on public in the environ-
ment, and such projects may be approved
exactly as before enactment of the Envi-
ronmental Quality Act. West's Ann.Public
Resources Code, 21100-21102, 21150,
21151.


20. Courts 8:=100(1)
Supreme Court would not make pro-
spective only its decision relating to gov-
ernmental agency approved private proj-
ects requiring the preparation of an envi-
ronmental impact report merely because
numerous projects were approved without
requiring preparation of impact reports in
the erroneous belief that such projects
were exempt from Act, since it appeared
that few projects would still be subject to
attack, and there appeared no need for
court to delay effective date of decision to
allow additional time for governmental
agencies to draw up guidelines. West's Ann.
Public Resources Code, 21000, 21001,
21101, 21102, 21150, 21151.



John C. McCarthy, and Young, Henrie &
McCarthy, Pomona, for plaintiffs appel-
lants.
Evelle J. Younger, Atty. Gen., Louise H.
Renne and Nicholas C. Yost, Deputy Attys.
Gen., Carlyle W. Hall, Jr., John R. Phil-
lips, Frederic P. Sutherland, Beatrice Chal-
liss Laws, J. Edd Steppe and Sandy Eng-
lish, Los Angeles, as amici curiae on behalf
of plaintiffs and appellants.
N. Edward Denton, Dist. Atty., David M.
Kennedy, Asst. Dist. Atty., Kronick, Mos-
kovitz, Tiedemann & Girard, Adolph Mos-
kovitz, Robert E. Murphy and Clifford W.
Schulz, Sacramento, for defendants and
respondents.
Gray, Cary, Ames & Frye, R. Reaves
Elledge, Jr., and Browning E. Marean
III, San Diego, for real party in interest
and respondent.

MOSK, Justice.
This case affords us the first opportunity
to construe provisions of the California
Environmental Quality Act of 1970
(EQA). (Pub.Resources Code, 21000-
21151.) t As the express legislative intent
forthrightly declares, the EQA was design-
ed to be a milestone in the campaign for
"maintenance of a Quality environment for


I. All code references are to the Public Resources Code unless otherwise indicated.


S --







502 PACIFIC REPORTER, 2d SERIES


the people of this state now and in the fu-
ture ... ." ( 21000, subd. (a).) The
specific question presented here is whether
a municipal body is required to submit an
environmental impact report (see 21100)
pursuant to section 2115-1 of the code be-
fore it issues a conditional use or building
permit.
Real party in interest, International Rec-
reation, Ltd. (International) filed an an-
plication for a conditional use permit on
April 20, 1971, with defendant Mono Coun-
ty Planning Commission (Commission).
The application described the proposed use
as follows: "Two multi-story structures
housing 64 1, 2, 3, 4 bedroom condominiums
plus 120 studio-type condominiums, aro-
posed restaurant and specialty shops. All
for sale. With ample parking and recrea-
tional facilities." The use permit report
refers to a parcel of 5.5 acres, approxi-
mately 135 feet by 1,775 feet. It appears
from the record that some six buildings are
eventually contemplated each with height
of from six to eight stories. Thus a long
and relatively narrow structure or series
of structures in close proximity is proposed.
The Commission approved the use permit
on May 6, 1971. Thereupon on May 21,
Frederick Schaeffer and Richard Young,
both members of the class represented by
plaintiff Charles E. Griffin II, along with
two other individuals, appealed the Com-
mission's decision to defendant Mono Coun-
ty Board of Supervisors (Board). On
June 14, 1971, the Board affirmed the is-
suance of the use permit.
On July 12 plaintiffs Friends of Mam-
moth2 and Griffin filed a petition for a
writ of administrative mandamus with the
Court of Appeal attacking the validity of
the permit. On July 15, the court denied
the writ without prejudice to the filing of
proceedings in the superior court. On
July 19, plaintiffs filed an identical peti-
tion with the Mono County Superior Court.
The writ was denied and plaintiffs appeal.
We stayed the activities of International
2. Friends of Mammoth is described as "nn
unincorporated association of hundreds of
resident and nonresident owners of lots


for which the conditional use permit and
subsequent building permit were issued
pending our disposition of the matter.

I
Mono County is situated in eastern Cali-
fornia and is bordered on the east by the
State of Nevada. The boundary on the
west generally follows the crest of the
Sierra Nevada mountain range. The coun-
ty is primarily mountainous and open range
land, almost all above 5,000 feet. It is
California's third smallest county in popu-
lation with 4,016 people. Although his-
torically a county oriented to the economy
of cattle and sheep ranching, nature'.
bountiful gifts of majestic mountains, lakes,
streams, trees and wildlife have produced
in the area one of the nation's most spec-
tacularly beautiful and comparatively un-
spoiled treasures.
Mammoth Lakes, the section of Mono
County immediately involved in this action.
consists of some 2,100 acres of land sur-
rounded by the Inyo National Forest.
Plaintiffs assert that acute water and
sewage problems will be created if inter-
national is permitted to construct its pro-
posed condominium comDlex. Additional
matters of concern include snow removal.
police protectin and the diminution of
open space in general. Documents filed
with defendant Commission prior to its de
cision indicate that the Commission may
have considered in general thbc cxet I
the construction on the character and value
of surrounding property, traffic, water and
sewage fac itit es nnw removal, and fre
and police protection.
The principal legal question that arises is
whether the EQA applies to private ac-
tivities for which a permit or other similar
entitlement is required. This issue has
been ventilated, not only by the named par-
ties but also by the Attorney General
and the Sierrra Club as amici curiae. De-
fendants and International contend that
even if their interpretation of the EQA
or mountain residences at Manmmoth
Lakes, Mono County. California."


1052 Cal.






FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1053.
Cite as 502 P.2d 1049


does not prevail, plaintiffs should be de-
nied relief for other reasons. Plaintiffs
likewise assert additional grounds for set-
ting aside the use and building permits.
In view of the impact inherent in the initial
judicial consideration of the EQA, we turn
first to that issue.

II
Though recognition of the problem in
and out of government is more pervasive
today, concern over violation of our en-
vironment is not entirely a contemporary
phenomenon. Four decades ago Justice
Holmes described a river as "more than an
amenity, it is a'treasure. It offers a neces-
sity of life that must be rationed among
those who have power over it." (New Jer-
sey v. New York (1931) 283 U.S. 336, 342,
51 S.Ct. 478, 479, 75 L.Ed. 1104.) Five
years ago Justice Douglas spoke for the
high court in admonishing the Federal
Power Commission that the issue is not
"whether the project will be beneficial to
the licensee . The test is whether
the project will be in the public interest
in preserving reaches of wild riv-
ers and wilderness areas and the
protection of wildlife." (Udall v. Federal
Power Commission (1967) 387 U.S. 428,
450, 87 S.Ct. 1712, 1724, 18 L.Ed.2d 869.)
More recently, a circuit court discussed
statutes attesting "to the commitment of
the government to control, at long,last,
the destructive engine of material 'prog-
ress.'" The duty of the judiciary, it held,
is to assure that important environment
urposes, heralded in legislative halls, are
not lost or misdirected in the vast hallways
of administrative bureaucracy. (Calvert
Cliffs' Coordinating Committee, Inc. v.
United States Atomic Enerzv Comm.
(1971) 146 U.S.App.D.C. 33, 35, 449 F.2d
1109, 1111.) The public interest involved
in a challenge to administrative action need
not be economic. (Environmental Defense
Fund, Inc. v. Hardin (1970) 138 U.S.App.
D.C. 391, 428 F.2d 1093, 1097.)

The most recent declaration on the ecolo-
gy ethic was the Supreme Court decision in
Sierra Club v. Morton (1972) 405 U.S. 727,


92 S.Ct. 1361, 31 L.Ed.2d 636. Though de-
cided on an issue of standing to maintain
the action, majority and dissenting opinions
agreed on environmental protection princi-
ples. Justice Stewart wrote for the ma-
jority: "Aesthetic and environmental well-
being, like economic well-heinr are import-
ant ingredients of the quality of life in our
sog y, and the fact that particular en-
vironmental interests are shared by the
many rather than the few does not make
them less deserving of legal protection
through the judicial process." (405 U.S. at
p. 734, 92 S.Ct. at p. 1366.) In dissenting
Justice Blackmun decried rigidity of the
law that prevented reaching issues involv-
ing "significant aspects of a wide, growing
and disturbing problem, that is, the Nation's
and the world's deteriorating environment
with its resulting ecological disturbances."
(405 U.S. at p. 755, 92 S.Ct. at p. 1376.)

California's Environmental Quality Act
of 1970 requires various state and local
governmental entities to submit environ-
mental impact reports before undertaking
specified activity. These reports compel
state and local agencies to consider the
possible adverse consequences to the en-
vironment of the proposed activity and to
record such impact in writing. In an era
of commercial and industrial expansion in
which the environment has been repeatedly
violated by those who are oblivious to the
ecological well-being of society, the sig-
nificance of this legislative act cannot be
understated. As section 21001, subdivision
(g), clearly sets forth, the EQA requires
governmental l agencies at all levels to
consider qualitative factors as well as eco-
nomic and technical factors and lone-term
benefits and costs, in addition to short-time
benefits and costs and to consider alterna-
tives to proposed actions affection the en-
viro ."

Pursuant to section 21100, the environ-
mental impact reports required by the act
must set forth the following information:
"(a) The environmental impact of the
proposed action.







502 PACIFIC REPORTER, 2d SERIES


"(b) Any adverse environmental effects
which cannot be avoided if the proposal is
implemented.

"(c) Mitigation measures proposed to
minimize the impact.
"(d) Alternatives to the proposed ac-
tion.
"(e) The relationship between local
short-term uses of man's environment and
the maintenance and enhancement of long-
term productivity.

"(f) Any irreversible environmental
changes which would be involved in the
proposed action should it be implemented."
Under section 21100, the reports are re-
quired of "state agencies, boards and com-
missions"; section 21101 requires similar
information with regard to federal projects
"on which the state officially comments";
section 21102 requires an impact report
before a state agency requests certain
funds; section 21105 provides that a state
official must include a report as part of
"the regular project report used in the
existing review and budgetary process."
Finally sections 21150 and 21151 require
local governmental entities to submit en-
vironmental impact reports prior to receiv-
ing certain state or federal funds or en-
gaging in various activities.
Section 21151, the specific provision in-
volved in the case at hand, states: "The
legislative bodies of all cities and counties
which have an officially adopted conserva-
tion element of a general plan shall make a
finding that any project they intend to
carry out. which may have a significant f-
fect on the environment. is in accord with
the conservation element of the general
pan. All other local governmental agen-
cies shall make an environmental impact
report on any project they intend to carry
out which may have a significant effect on
the environment and shall submit it to the
appropriate local planning agency as part
of the report required by Section 65402 of
the Government Code."
Mono County does not yet have a con-
servation element of a general plan. Thus,


the first sentence of section 21151 does not
apply. Only if the second provision covers
the issuance of a permit does the mandate
of the act govern here. This determination
necessarily turns on whether the term
"project" as used in section l i includes
private activity for which a government
permit is necessary.

[1] We begin our inquiry by noting that
nowhere in the act is "project" defined.
CompareThe Ventura-Los Angeles Moun.
tain and Coastal Study Commission Act,
Pub. Resources Code, 22000 et seq., en-
acted at the same time as the Environ.
mental Quality Act, ch. 2 of which sets
forth definitions of terms used therein.)
Because of the failure of the Legislature to
expressly delineate the meaning of "proj-
ect," we must rely on a cardinal principle
of statutory construction: that absent "a
single meaning of the statute apparent
on its face, we are retired to ive it an
interpretation based upon the legislative
intent with which it was passed." (Benor
v. Board of Medical Examiners (1970) 8
Cal.App.3d 542, 546-547, 87 Cal.Rptr. 415
(hg. den.).)
[2] In this instance our task has been
considerably simplified because the Legis-
lature has expressly set forth its intent in
sections 21000 and 21001 of the act. These
two provisions, captioned "Legislative in-
tent" and "Additional legislative intent,"
contain no less than 14 references to the
concern of the Legislature with the cur-
rent deterioration of the environment
(See 21000, subds. (a-g); 21001, sulbds.
(a-g).) An analytical reading of these
sections leads to the ineluctable conclusion
that the Legislature intended to include
within the panoply of the act's provisions
private activities for which a permit, lease
or other entitlement is necessary.
The clearest manifestation of this intent
can be found in section 21000, subdivision
(g), which provides: "I is the intent
the Legislature that all agencies of the state
government which regulate activities o'
private individuals, corporations, and pub
agencies which are found to affect tihe u1


1054 Cal.


1







FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1055
Cite as 502 P.2d 1049


it' of the environment shall r nulntv st h
activities so that major consideration is
given to preventing environmental dam-
age." (Italics added.) t is significant that
regulate is the verb employed in this sub-
division. (See also 21107.) Its use dem-
onstrates that the concern of the Legisla-
ture was not limited solely to activities
which the government performs in a pro-
prietary capacity. Instead the Legislature
apparently desired to ensure that govern-
mental entities in their regulatory function
would determine that private individuals
were not forsaking ecological cn nizane in
pursuit of economic advantage. One of the
most common means by which a govern-
ment agency regulates private activity is
through the granting or denial of a permit.
The Legislature also evidenced strong
concern for the promulgation of standards
by which environmental needs could be reg-
ularly included in the decision-making proc-
ess. (See 21001, subds. (f) and (g).)
Because of the regular involvement of pub-
lic entities in the issuance of permits it
would appear that requiring "governmental
agencies at all levels to develop standards
and procedures necessary to protect en-
%ironmental quality" ( 21001, subd. (f))
necessarily includes not only situations in
which the government itself engages in con-
struction, acquisition or other development,
!>ut also those instances in which the state
regulates private activity.
Other provisions in the EQA likewise
support the conclusion that the Legislature
intended to include the permit-issuing proc-
ess as a governmental activity for which
an environmental impact report is required.
For example, section 21000, subdivision (e),
states: "Every citizen has a responsibility
'o contribute to the preservation and en-
.ancement of the environment." (Italics
added.) Such responsibility may never be
exercised if the EQA is to apply only to
activities in which the government is direct-
v? engaged. "Every citizen" is an unmis-
a able reference to private individuals as
-stinguished from government officials.
'"-division (f) of the same section pro-
*:des: 'The interrelationship of policies


and practices in the management of natural
resources and waste disposal requires
systematic and concerted efforts by public
and private interests to enhance environ-
mental quality and to control environmental
pollution." (Italics added.) Finally, sec-
tion 21001, subdivision (d), provides: "En-
sure that the long-term protection of the
environment shall be the guiding criterion
in public decisions." (Italics added.) The
reference in section 21000, subdivision (f),
to "private interests" coupled with the
"public decisions" phrase of section 21001,
subdivision (d), contemplates as within the
act the decision of a public agency to grant
or deny private interests the opportunity to
engage in enumerated activities.
In view of what appears to be a clear
legislative mandate that th, FtA hV r,;'n
a broad nstrution andnlv t
private actions for which a nprmit.i nees-
sar.y we note parenthetically that the prin-
cipal author nf th A ^ -.-
John T. Knox. is nn reclr ...r...nnti;n ,
such an interpretation. The legislator, in a
sworn declaration, states that in authoring
the bill and guiding it through the Legisla-
ture it "was my intent that the requirement
of an environmental impact report extend
to the situation where a state or local public
agency by lease, permit, funding or com-
parable entitlement for use was author-
izing or facilitating a private undertaking
as long as'there was a significant impact
upon the environment. This includes situa-
tions such as zoning changes, conditional
use permits and building permits. I com-
municated this intent to the other legis-
lators in the course of the legislative proc-
ess . (Declaration by John T.
Knox, Feb. 1972, plaintiffs' opening brief,
appendix C.)
Defendants and International seek to re-
but the significance of the Knox declara-
tion by offering a declaration of Assembly-
man Carley V. Porter in which he opines
that the act does not apply to private ac-
tivities for which a permit was necessary.
(Declaration of Carley V. Porter, Apr. 11,
1972, appendix to defendants' answer to
briefs of amici curiae; also see Interim







502 PACIFIC REPORTER, 2d SERIES


Guidelines for the Preparation and Evalua-
tion of Environmental Impact Statements
Under the California Environmental Qual-
ity Act of 1970, Office of the Secretary for
Resources (draft of Apr. 28, 1972).)
[3] That two legislators report contra-
dictory legislative intent fortifies judicial
reticence to rely on statements made by in-
dividual members of the Legislature as an
expression of the intent of the entire body.
(See Ballard v. Anderson (1971) 4 Cal.3d
873, 881, 95 Cal.Rptr. 1, 484 P.2d 1345;
Rich v. State Board of Optometry (1965)
235 Cal.App.2d 591, 603, 45 Cal.Rptr. 512
(hg. den.).) Other extrinsic aids to deter-
mine legislative intent are generally more
persuasive.
Defendants and International also sub-
mit a statement by a former consultant to
the Assembly Select Committee on Environ-
mental Quality. The consultant, Robert L.
Jones, conceded that it was only his "im-
pression" that the EQA was limited to ac-
tivities undertaken directly by govern-
mental bodies. (Testimony of Robert L.
Jones before Senate Committee on Natural
Resources and Wildlife, on the Administra-
tion of the Environmental Quality Act of
1970 and Related Acts, Dec. 16, 1970, at pp.
3-5.)3 More significant, perhaps, is the
preface to his remarks in which he defers
for an authoritative interpretation oi the
act to "the Legislative [Counsel] or the
Attorney General." (Id. at p. 2.) To com-
pound the conflict of extrajudicial opinions,
the Attorney General has taken the position
that the act does apply to private activity
(Attorney General of the State of Califor-
nia, In re Proposed Guidelines for the Prep-
aration and Evaluation of Environmental
Impact Statements under the California En-
vironmental Quality Act of 1970, at p. 9;

3. In a subsequent letter Jones first indi-
cated that it was his view that the EQA
"probably" did not apply to private ac-
tivities. He further stated, however, "In
the policy section of AB 2045 [the act's
bill number], there are however, two sec-
tions that certainly indicate legislative
policy on application of environmental im-
pact studies on private land. The first
is Section 21000(g) and the second is See-


amicus curiae brief of the State of Califog
nia filed herein, at pp. 15-26) whereas the
Legislative Counsel has concluded that It
does not (letter from George H. Murphy
Legislative Counsel to Hon. Carley V. Pa.
ter, Nov. 23, 1971, appendix to defendant
answer to briefs of amici curiae, exh. 3).
We observe, however, that the cursory
three-page letter of the Legislative Counsd
was not designed to be an in-depth analyst
of the type included in the Attorney CGen-
eral's petition and brief which together
number some 60 pages.

[4] In resolving the conflict on intent
as we must, we conclude that the Lr
ture intended the EOA to be interreted
such manner as to afford the fnlleset nn..
ble protection to the environment within
t e reasonable scope of the statutory la.
g e. We also conclude that to achiemt
that maximum protection the Legislatur.
necessarily intended to include wttbin the,
operation ot the act. nriva actiti r
which a government permit or other enitle2
ment for use is necessary.


III
Defendants and International contend
that notwithstanding the broad language of
the act, the Legislature did not effecuats
this avowed intent in section 21151. They
point to the-use of the word "project" ad
the clause that follows it-"they [i. e., local .
governmental agencies] intend to carr
out." Defendants and International main
tain that in this context "project" is cote~
ominous with "public works."
[5] As noted previously, the EQA does
not attempt to define "project." Beca~uS
the legislative intent provisions dictate that
we give a broad interpretation to the =6

tion 21107. Considering these two -5
tions together, I believe it can be inferrel
that all state agencies, boards and com-
missions who regulate private activities
are responsible for insuring enviromenal
protection when these activities are car-
ried out." (Letter from Robert L. JonLe
to Hon. Peter F. Schabarum and Car
ley V. Porter, Nov. 15, 1971.)


1056 Cal.


--.No







FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1057
Cite as 502 P.2d 1049


operative language, we begin from that
vantage point. Once a particular legislative
intent has been ascertained, it must be given
effect "'even though it may not be consist-
ent with the strict letter of the statute.'"
(Dickey v. Raisin Proration Zone No. 1
(1944) 24 Cal.2d 796, 802, 151 P.2d 505,
508.) As we stated nearly a half century
ago in In re Haines (1925) 195 Cal. 605,
613, 234 P. 883, 886: 'The mere literal con-
struction of a section in a statute ought not
to prevail if it is opposed to the intention of
the legislature apparent by the statute; and
if the words are sufficiently flexible to ad-
mit of some other construction it is to be
adopted to effectuate that intention. The
intent prevails over the letter, and the letter
will, if possible, be so read as to conform
to the spirit of the act.' "
[6] Our task then is to determine
whether the word "project" is "sufficiently
flexible" so as to effectuate the broad leg-
islative intent that private activities should
be brought within the ambit of the act. We
may not, of course, give an unreasonable
construction to the statute. (See Cedars of
Lebanon Hosp. v. County of Los Angeles
(1950) 35 Cal.2d 729, 735, 221 P.2d 31;
Dept. of Motor Vehicles v. Industrial Ace.
Comm. (1948) 83 Cal.App.2d 671, 677, 189
P.2d 730.)
In interpreting "project" our task has
been made difficult both by the dictionary
definition of the word and the use of "proj-
ect" and similar terms in the act itself.
Webster defines project as a "plan or de-
sign scheme proposal
." (Webster's New Internat. Dict.
(3d ed. 1961) p. 1813.) Such synonyms
provide little interpretative aid. Further-
more the act itself refers to "projects" in
some instances (see, e. g., 21100, 21150,
21151) and to "actions" and "proposals" in
other instances (see, e. g., 21100, subds.
(a), (b), (d), (f)), devising no neat cate-
gories in which to place the several similar
terms.
4. Compare Pub.Resources Code, 21100,
subd. (a), and 42 U.S.C. 4332, subd.
(2) (C) (i); Pub.Resources Code,
21100, subd, (b), and 42 U.S.C. 4332,
subd. (2)(C)(ii); Pub.Resources Code,
502 P.2d-67


[7,8] With this in mind, we resort to
the rule declared in People ex rel. San
Francisco Bay, etc., Comm. v. Town of
Emeryville (1968) 69 Cal.2d 533, 543-544,
72 Cal.Rptr. 790, 796, 446 P.2d 790, 796: A
principle "which must be applied in ana-
lyzing the legislative usage of the word
'project,' is that 'the objective sought to be
achieved by a statute as well as the evil to
be prevented is of prime consideration in
[the word's] interpretation, and where a
word of common usage has more than one
meaning, the one which will best attain the
purposes of the statute should be adopted,
even though the ordinary meaning of the
word is enlarged or restricted and especial-
ly in order to avoid absurdity or to prevent
injustice.'" Since neither the dictionary
definition nor the EQA itself provides us
with a tool to use in interpreting "project"
we turn to the National Environmental Pol-
icy Act (42 U.S.C. 4321 et seq.) for
guidance.
The National Environmental Policy Act
(NEPA) was signed into law January 1.
1970. Interim guidelines written by the
President's Council on Environmental
Quality were promulgated on April 30,
1970. (35 Fed.Reg. 7390). (They were su-
perseded by the final federal guidelines on
April 23, 1971 (36 Fed.Reg. 7724). The EQA
was passed by the Legislature on August
21, 1970 (Assembly Final Calendar, 11970
Reg.Sess.) at p. 637), and was signed by the
Governor on September 18, 1970 (id.).
Not only does the timing and the titles of
the two acts tend to indicate that the EQA
was patterned on the federal act, the key
provision of the two acts, the environmental
impact report, is the same. (Compare 42
U.S.C. 4332, subd. (2)(C) with Pub.Re-
sources Code, 21100; see also Pub.Re-
sources Code, 21101, 21102, 21105, 21150,
21151.) Indeed, much of the phraseology
of the EQA is either adopted verbatim from
or is clearly patterned upon the federal
act.4 As one commentator has observed,
21100, subd. (d), and 42 U.S.C. 4332
subd. (2) (C) (iii); Pub.Resources Code.
21100, subd. (e), and 42 U.S.C. 4332
subd. (2) (C) (iv) ; Pub.Resources Code,
21100, subd. (f), and 42 U.S.C. 4332.


I-- -








502 PACIFIC REPORTER, 2d SERIES


the EQA is "much like the Federal NEPA."
(Powell, The Courts as Protectors of the
Environment (1972) 47 L.A.Bar Bull. 215,
218.)
Accordingly, in construing "project" in
the EQA, the definition of that word in the
federal act and regulations becomes rele-
vant. It is significant to note, in this re-
gard, the Court of Appeals for the District
of Columbia has emphasized that in con-
struing the federal act the judicial role is
active and that the NEPA must be inter-
preted broadly. (See Calvert Cliffs' Co-
ordinating Committee, Inc. v. United States
Atomic Energy Comm., supra, 449 F.2d
1109, 1111.) This is consonant with the
mandate of the California Legislature that
the EQA be given a liberal construction.
Section 102 of the NEPA, the act's prin-
cipal substantive provision, uses the word
"action" as opposed to "project." (42 U.S.C.
4332, subd. (2)(c).) The Council on En-
vironmental Quality first defined "action"
in the interim guidelines it issued some four
months prior to the enactment of the
EQA. In view of the similarity between
the federal and state acts, the Legislature
obviously was aware of the federal defi-
nitions when the EQA was passed. (Cf.
98, Assem.Bill 681, a bill which would add
21109 to the Pub.Resources Code, intro-
duced Mar. 2, 1972.) Accordingly, the
definitions promulgated by the Council on
Environmental Quality are helpful to an
understanding of the subsequent California
use of the word "project." The interim

subd. (2) (C) (v) ; Pub.Resources Code.
21000. subd. (e), and 42 U.S.C. 4331,
subd. (c); Pub.Resources Code, 21001,
subd. (e), and 42 U.S.C. 4321; Pub.
Resources Code, 21001, subds. (f) and
(g), and 42 U.S.C. 4332, subds. (2)
(B) and (2) (D); Pub.Resources Code,
5 21104 and 21105 and 42 U.S.C.
4332, subd. (2) (C) ; Pub.Resources Code,
21107 and 42 U.S.C. 4333.

5. Section 21100 requires that the follow-
ing shall be included "in any report on
any project they propose to carry out
.: (a) The environmental impact
of the proposed action. [] (d)
Alternatives to the proposed action.


guidelines, ultimately adopted without siR.
nificant change insofar as relevant here m
the final guidelines, provide the following
"5. Actions included .

"(a) 'Actions' include but not limited
to:

"(I) Recommendations or reports re-
lating to legislation and appropriations;

"(ii) Projects and continuing active.
ties;

"-Directly undertaken by Federal
agencies;
"-Supported in whole or in part
through Federal contracts, grants, sub.
sidies, loans or other forms of funduir
assistance;

"-Involving a Federal lease, permit.
license, certificate or other entitlement
for use;

"(iii) Policy-and procedure-making."
(35 Fed.Reg. 7390, 7391; see also 36 Fed.
Reg. 7724, 7724.)

Arguably "actions" is broader than "proj-
ects," even though the EQA tends to m
the two words interchangeably in section.
21100.5 However, it is crucial that "ac-
tions," under the federal guidelines, is divid-
ed into three categories, one of which is
"projects." It is under "projects" as a sl
class of "actions" that "lease, permit, li-
cense, certificate, or other entitlement for
use" is included.6

[] (f) Any irreversible environmental
changes which would be involved in the
proposed action should it be implJ
mented." (Italics added.) (See also I
21001, subd. (g).)
6. We note that the second category is
actually titled "projects and continuiaM
activities." The former would appear
to apply to activities the duration o
which is relatively settled, whereas the
latter appears to cover those activity0
which might continue for some unkno0l
period of time. The differences between
the two subcategories do not involve ar
distinction between public and privl*
activities.


1058 Cal.







FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1059
Cite as 502 P.2d 1049


[9] In view of the relationship between
the two acts and the fact that both are
subject to a broad judicial interpretation,
it is manifest that the word "project" as
used in section 21151 and other provisions
of the EQA includes the issuance of per-
mits, leases and other entitlements. Ac-
cordingly, we hold that in the case at bar
defendants were required to consider
whether the proposed condominium con-
struction "may have a significant effect
on the environment" ( 21151; see fn. 9,
infra) and, if so, to prepare an environ-
mental impact report prior to the decision
to grant the conditional use and building
permits. (Cf. Greene County Planning
Board v. Federal Power Comm. (2d Cir.
1972) 455 F2d 412, 418-421.)


IV
[10] Defendants and International con-
.tend that since "project" is followed by the
phrase "they intend to carry out," section
21151 can only be interpreted as referring
to a public works type project "to be carried
,out," i. e., constructed, acquired or develop-

7. Regulation of private activity by a pub-
lic agency can be more vividly seen as a
project which the agency intends to
"carry out" in those instances in which
the agency maintains regulatory control
over the project throughout its lifetime.
(Cf. Orange County Air Pollution Con-
trol Dist. v. Public Util. Comm. (1971)
4 Cal.3d 945, 948, 95 Cal.Rptr. 17, 484
P.2d 1361.)

S. The fact that defendants in the instant
action allegedly considered the effect of
tile proposed construction on the char-
acter and value of surrounding property,
traffic, water and sewage facilities, fire
and police protection, snow removal and
the ecology in general, does not, in any
sense of the term, "substantially comply"
with the environmental impact report re-
quirements. Whether on different facts
the requirements of this act can be satis-
fied by substantial rather than literal
compliance is a question we do not here
reach.
The impact report must be specially
prepared in written form before the gov-
ernmental entity makes its decision.
This will give members of the public and
other concerned parties an opportunity
to provide input both in the making of


ed, by the government. However, having
interpreted the word "project" broadly to
include private activity for which a permit
is necessary, certainly the granting or deny-
ing of a permit is an act which a govern-
mental authority "carries out." According-
ly, we construe the phrase following "proj-
ect" to mean only that before an environ-
mental impact report becomes required the
government must have some minimal link
with the activity, either by direct proprie-"
tary interest or by permitting, regulating,
or funding private activity.7

[11,12] Moreover, to limit the opera-
tion of the EQA solely to what are essen-
tially public works projects would frustrate
the effectiveness of the act. It is undis-
puted that the Legislature intended that
environmental considerations play a signifi-
cant role in governmental decision-making
(see 21000, 21001) and that such an in-
tent was not to be effectuated by vague or
illusory assurances by state and local en-
tities that the effect of a project on the
environment had been "taken into consid-
eration."' To read "project they intend

the report and in the ultimate govern-
mental decision based, in part, on that
report.
The report, of course, must satisfy the
elements set forth in section 21100. For
example, subdivision (b) requires that
"la]ny adverse environmental effects
which cannot be avoided if the proposal
is implemented" be included in the report.
There is no requirement that these ad-
verse effects be considered "significant"
before they are to be listed. Subdivisions
(c) and (d) require that mitigation meas-
ures and alternatives to the proposed
action be considered. Obviously if the
adverse consequences to the environment
can be mitigated, or if feasible alterna-
tives are available, the proposed activity.
such as the issuance of a permit, should
not be approved. In making these de-
terminations concrete concepts, not mere
aphorisms or generalities, must be con-
sidered. Finally, subdivision (f) requires
the entity to include in the report "[a]ny
irreversible environmental changes which
would be involved in the proposed action
should it be implemented." As in subdi-
vision (b), there is no requirement that
these changes be assessed as "significant"
before they are to be included in the re-
port.


'TI







502 PACIFIC REPORTER, 2d SERIES


to carry out"-the cornerstone of many of
the act's provisions-as limited to public
works projects would render meaningless
much of the legislative intent sections that
contemplate regulation of private activity,
for none of the act's other substantive pro-
visions more clearly relate to private ac-
tions. And to exclude all private activity
from being covered by the act would be
inconsistent with the broad legislative in-
tent appearing therein. More specifically,
if private activities for which a permit is
required were exempted from the opera-
tion of the act, projects with admittedly
deleterious ecological consequences would
be covered only if construction, acquisition
or other development were undertaken by
the governmental authority but not if the
same authority allowed private enterprise
to engage in the identical activity. The
Sincongruity of such interpretation would be
most vivid in the less populous counties,
such as Mono, which because of limited
economic capabilities might never engage
in massive public works projects signifi-
cantly affecting the environment, but could
achieve the same result by permitting, li-
censing, or partially funding private activi-
ties.
To further demonstrate the paradoxical
position advanced by defendants and Inter-
national, generally the sparsely populated
counties in which massive public works
projects are less likely because of the fi-
nancial burden are the counties with signif-
icant natural resources and wildlife most
in need of protection. While the act ap-
plies to large and small counties, and to
urban and rural areas alike, certainly the
protection afforded by the EQA would be
substantially diminished in an area where
it may be most needed if the act were to be
interpreted to cover only public works proj-
ects.
Defendants, nevertheless, assert that the
legislative history of the EQA indicates
that the word "project" does not apply to

The report, therefore, is to contain sub-
stantially greater analysis of the effect
of the proposed activity on the environ-
ment and the possible mitigation devices


the issuance of a permit. They cite the
original language of AB 2045, as intro-
duced in the Assembly on April 21, 1970.
At that time, section 21151 would have ap.
plied to "[a]ll local governmental agencies
for any program carried out by
them." (Italics added.) An amendment on
May 26 made the bill more specific, setting
up three classifications of local govern-
mental entities: (1) the legislative body of
all cities and counties with a conservation
element of a general plan; (2) local got.
ernmental units without a conservation ele-
ment; and (3) all other local governmental
agencies. The language "for any program
carried out by them" was retained for all
three categories except for minor gram-
matical changes.

A subsequent amendment introduced in
the Senate on August 4, 1970, distinguished
between the three categories by making
the act operative for group one entities for
"any project or change in zoning they in-
tend to carry out"; and for group two
entities for "any project they intend to car-
ry out"; yet retaining for group three the
"any program they intend to carry out
wording. (Italics added.) On August 14,
the proposed section 21151 was amended
once again, this time eliminating altogether
the second category; separating the "proj-
ect" and "change in zoning" provisions of
the first category into two sentences in-
stead of one; and changing "program" in
the third category to "project." The final
amendment, on August 20, deleted the sen-
tence pertaining to "change in zoning" and
retained the "project" requirement for the
categories designated above as groups one
and three. The second category was not
reinstituted. It was with this language
that the bill became law.
It is possible that these intricate seman-
tic changes enroute to final enactment were
not without significance. Defendants in-
sist that -the amending process has been a
narrowing one. We do not agree. Leav-
and alternatives then can be achieved
simply through testimony followed by a
naked conclusion that the environment
will not be harmed by the project.


1060 Cal.


I







FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1061
Cite as 502 P.2d 1049


ing aside the several intermediate altera-
tions, we note in essence the change was
from "program" to "project." It may be
fairly said that the former entails more
general planning, and policy and procedure-
making, similar to that described in the
NEPA guidelines. (See 35 Fed.Reg. 7390,
7391, 5(a)(iii); see also 36 Fed.Reg. 7724,
5(a)(iii), both supra.) Conversely, "proj-
ect" appears to emphasize activities.culmi-
nating in physical changes to the environ-
ment, changes which were of paramount
interest to the Legislature. (Cf. 21102.)
It appears that the Legislature in its
amendments to Assembly Bill 2045 was in-
fluenced by the issuance of the interim
-federal guidelines published subsequent to
the introduction of Assembly Bill 2045 but
prior to its final passage. Those guide-
lines used the word "project" rather than
"program." Thus the Legislature appears
to have intended, in order to prevent con-
fusion, to use the same broad terminology
in effect under federal law rather than to
adopt an entirely different set of phrases
of its own.
International next insists that section
.21151 does not apply to private activity
because of its clause that requires local
,agencies to submit an environmental im-
pact report "to the appropriate local plan-
.ning agency as part of the report required
by Section 65402 of the Government Code."
Section 65402 provides that counties, cities
and local agencies shall submit a report to
; planning agencies pursuant to proposed ac-
quisition of real property or construction
of public buildings and structures so that
a determination can be made as to whether
the proposal is consistent with their respec-
tive general plans. (See Gov.Code, 65100
et seq., especially 65350-65402.) It is
contended that since the Government Code
provision applies only to development or
acquisition by municipal entities, it would
be illogical to require an impact report
on private activities to be filed in conjunc-
tion with some mythical report on a public
works project. Accordingly, they argue,
section 21151 must apply only to the type
of public works projects contemplated by


I Y


Government Code section 65402 and not to
private activity for which a permit is nec-
essary.

[13] The reading proposed by Interna-
tional elevates what appears to be simply
a directory measure to far greater signifi-
cance than is warranted. We have re-
viewed the broad legislative intent of the
EQA and the close relationship between
that act and the federal NEPA. Both
compel the conclusion that private activi-
ties involving the issuance of a permit are
within the scope of the EQA. The use of
these reports by the planning agencies
mentioned in Government Code section
65402 is secondary to the principal purpose
of section 21151, which is to compel local
governments to study and record the en-
vironmental implications of proposed ac-
tivities before they are acted upon. This
broad purpose cannot be frustrated by pro-
cedural details surrounding filing of the
reports.

The NEPA provides that copies of all
impact statements prepared by the various
federal agencies are to be made available
to the Council on Environmental Quality,
among others, and must "accompany the
proposal through the existing agency re-
view processes." (42 U.S.C. 4332, subd.
(2)(C).) The EQA similarly directs the
Office of Planning and Research to "co-
ordinate the development of objectives,
criteria, and procedures to assure the or-
derly preparation and evaluation of en-
vironmental impact reports "
( 21103.) The act also requires consulta-
tion with the various governmental entities
( 21103, 21104) and directs the impact re-
ports be included "as a part of the regular
project report used in the existing review
and budgetary process" ( 21105).
On the basis of similar directory provi-
sions in the EQA and NEPA, the command
in section 21151 that environmental impact
reports be submitted with the reports re-
quired by section 65402 of the Government
Code is not meant to limit the breadth of
the section. Instead, it is an attempt to in-
tegrate such impact reports into any exist-








502 PACIFIC REPORTER, 2d SERIES


ing reporting procedure in order to avoid
unnecessary duplication, confusion and cost.
Accordingly, projects for which a Govern-
ment Code section 65402 report must be
filed must also contain an environmental
impact report. Those projects, such as that
involved here, for which no section 65402
report is necessary, must nonetheless be
preceded by an environmental impact report
pursuant to section 21151.9

V
Aside from the question of the proper
construction of the Environmental Quality
Act the parties make several other conten-
tions to which we now turn.

Defendants and International first assert
that plaintiffs did not properly exhaust
their administrative remedies prior to seek-
ing judicial relief. Section 1209 of the
Mono County Zoning Ordinance provides:
"B. Any interested person not
satisfied with the decision of the Commis-
sion on any use permit may, with-
in fifteen (15). days ., appeal in
writing to the Board [of Supervisors]."
Neither plaintiff Friends of Mammoth nor
plaintiff Griffin filed an appeal pursuant to
section 1209. An appeal was filed by indi-
viduals Frederick Schaeffer, Richard
Young, Donald J. LaCasse an& Robert H.
Meyer, all property owners in the Mam-
moth Lakes area.
Plaintiffs allege that Messrs. Schaeffer
and Young are members of the class repre-
sented by plaintiff Griffin in this class ac-

9. "Statutes," wrote Justice Frankfurter in
United States v. Shirey (1959) 359 U.S.
255, 260, 79 S.Ct. 746, 749, 3 L.Ed.2d
789, "are not inert exercises in literary
composition. They are instruments of
government, and in construing them 'the
general purpose is a more important aid to
the meaning than any rule which gram-
mar or formal logic may lay down.' [Ci-
tation.] This is so because the purpose
of an enactment is embedded in its words
even though it is not always pedantically
expressed in words." Judge Learned
Hand described interpretation of stat-
utes as "the art of proliferating a pur-
pose." (Brooklyn Nat. Corp. v. Commis-
sioner of Int. Rev. (2d Cir. 1946) 157
F.2d 450, 451.)


tion. Defendants and International do not
controvert this allegation. Instead they
argue that Friends of Mammoth and Grif-
fin, and not members of the representative
class, must personally exhaust their admin-
trative remedies. Otherwise, they contend.
a plaintiff could avoid the exhaustion doc-
trine simply by including within the cla.s
one individual who had pursued his ad.
ministrative remedies but did not bring
judicial action as a named plaintiff.

[14] This assertion proves too much.
First of all, the fact that an individual pur-
sued administrative remedies would not, a~
a matter of course, entitle him to be n-
cluded in a subsequent class action. Ex-
haustion of administrative remedies du~e
not necessarily provide the "well defined
community of interest in the questions of
law and fact involved affecting the parts
to be represented" required in class actions.
(Daar v. Yellow Cab Co. (1967), 67 Cal.2d
695, 704, 63 Cal.Rptr. 724, 731, 433 P.2d 732.
739: see also 3 Witkin, Cal.Procedure (2d
ed. 1971) Pleading, 181, at pp. 1853-1854.1
However, in most instances those individ-
uals who have a sufficient interest in the
subject matter to seek administrative re-
view will possess the community of interest
with others to justify inclusion in the group
represented in a subsequent class action
But this conclusion defeats the very argw
ment defendants advance: that the Board
is entitled to learn the contentions of inter-
ested parties before litigation is instituted
If those unnamed plaintiffs in the class sat

We cannot, as respondents would hli*
us do, indulge in an inert exercise, lea-
ing heavily on isolated words and phrfs*
and remaining oblivious to the exprem
legislative intent to protect society agUflt
environmental blight. Nor are we 3in
pressed with the significance of letia
lative proposals introduced in March d
1972. long after this permit was issue
and the lawsuit instituted, since here teb
post facto legislative amendments not uoT
express the interpretation of "proije
which we have declared, but expand tI
act to apply beyond "projects" to "maj"r
actions."


1062 Cal.


I I







FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1063
Cite as .502 P.2d 1049


have previously sought administrative relief
they will have expressed the position of
the representative plaintiff in the class suit,
and the Board will have had its opportunity
to act and to render litigation unnecessary,
if it had chosen to do so.

[15] Messrs. Schaeffer and Young ap-
parently desire to be represented by plain-
tiff Griffin. They have not sought to be
excluded from the class. (Cf. Vasquez v.
Superior Court (1971) 4 Cal.3d 800, 821, 94
Cal.Rptr. 796, 484 P.2d 964.) Since two
plaintiffs, albeit unnamed plaintiffs, have
previously appeared before the Board, the
policies of the exhaustion doctrine have
been fulfilled. Under these circumstances,
the doctrine cannot be employed to bar a
suit by a class not organized at the time of
the administrative appeal. Defendant
Board has had the opportunity to hear
arguments of interested property owners
Schaeffer and Young, along with two
others who also appealed. Now several in-
terested property owners, including Schaef-
fer and Young, represented here by named
Plaintiff Griffin, seek a judicial determina-
tion of the legality of that decision. Noth-
ing more could effectuate the policy of the
':exhaustion doctrine. To require plaintiff
SGriffin to have personally appeared, in ad-
dition to the others, or to require Schaeffer
and Young to be named plaintiffs (cf. La'
Sala v. American Say. & Loan Assn. (1971)
5 Cal.3d 864, 872, 97 Cal.Rptr. 849, 489 P.2d
1113) would serve no additional useful
purpose.

[16] Defendants and International next
insist that plaintiffs failed to seek timely
relief from the decision of defendant Board
giving final approval of the permit. Sec-
tion 1213 of the zoning ordinance provides
that decisions of the Board "shall be final
for all purposes unless a court review there-
of is sought within thirty (30) days after
such decisions become final." Defendant
Board upheld the decision of defendant
Commission on June 14, 1971. On July 12,
within the 30-day period, plaintiffs sought a
writ of administrative mandamus in the
j Court of Appeal, Third District. On July


15, the Court of Appeal denied the writ but
"without prejudice to the filing of proceed-
ings in the Superior Court." On July 19,
35 days after the decision by the Board,
plaintiffs filed an identical petition for a
writ of administrative mandamus in supe-
rior court. Defendants and International
assert that because the period between June
14 and July 19 is greater than the 30-day
allotment provided by ordinance, plaintiffs
cannot seek judicial review. We reject this
contention.
It must be noted at the onset that judi-
cial relief was "sought" (in the words of
the ordinance) in the Court of Appeal
within 30 days of the Board's decision.
Relieff was denied there but it was denied
"without prejudice." This term usually
indicates that no decision on the merits
has been made: "The rule is well settled
that a denial by this or the appellate court
of an application for a writ without opinion
'is not res judicata of the legal issues
presented by the application unless the sole
possible ground of the denial was that the
court acted on the merits, or unless it af-
firmatively appears that such denial was
intended to be on the merits.'" (Hagan
v. Superior Court (1962) 57 Cal.2d 767,
770, 22 Cal.Rptr. 206, 208, 371 P.2d 982,
984; see Imperial Land Co. v. Imperial
Irrigation Dist. (1913) 166 Cal. 491, 492,
137 P. 234.)
Defendants and International contend
that denying the writ without prejudice
does not toll or extend the statute of limita-
tions of 30 days. Article VI, section 10,
of the state Constitution gives original ju-
risdiction to the Supreme Court, courts of
appeal, superior courts, and their judges in
"proceedings for extraordinary relief in
the nature of mandamus, certiorari, and
prohibition." Rule 56(a) provides: "If the
petition might lawfully have been made to a
lower court in the first instance, it shall
set forth the circumstances which, in the
opinion of the petitioner, render it proper
that the writ should issue originally from
the reviewing court . In his
comments to the rule, Witkin states: "In
form this is a rule of pleading; in effect,


__








502 PACIFIC REPORTER, 2d SERIES


however, it expresses the policy of the Su-
preme Court and courts of appeal to refuse
to exercise their original jurisdiction in the
first instance, unless the circumstances are
exceptional." (5 Witkin, Cal. Procedure,
supra, Extraordinary Writs, 114, at p.
3889; see also Cohen v. Superior Court
(1968) 267 Cal.App.2d 268, 270, 72 Cal.
Rptr. 814.)
The foregoing policy seeks to encourage
the filing of petitions for extraordinary
writs in the superior court. It does not
follow, however, when such policy is ef-
fectuated by an appellate court order de-
nying relief without prejudice that peti-
tioners should be denied a hearing on the
merits by a myopic reading of the abbrevi-
ated statute of limitations. An equally
strong public interest was formulated by
the court in Morgan v. Somervell (1940)
40 Cal.App.2d 398, 400, 104 P.2d 866, 867:
"It is in furtherance of a policy frequently
exemplified in legislative acts to enable
a party who, like the plaintiffs in the pres-
ent proceeding, has seasonably filed a cause
of action, to try it upon its merits, notwith-
standing defects in the form or substance
of pleadings, error in remedy sought, or
mistake in the tribunal invoked." Morgan
involved the transfer of a cause of action
pursuant to Code of Civil Procedure, sec-
tion 396. Thus it is factual~ distinguish-
able from the case at bar. The policy ex-
plicated in Morgan, however, applies here.
Defendants and International, having been
put on notice of the litigation, were not
prejudiced in any manner by the Court of
Appeal's denial of the petition and the sub-
sequent prompt refiling in superior court.
We conclude that plaintiffs complied
with the statute of limitations by filing a
petition for writ of mandamus in the Court
of Appeal within the statute of limitations
contained in the Mono County Zoning Or-
dinance and upon denial without preju-
dice by refiling promptly in the superior
court.

[17] We now turn to two final conten-
tions raised by plaintiffs. Plaintiffs insist
that the granting of the permit must be set


aside on the following grounds in addition
to defendants' failure to comply with the
EQA: (1) defendants have not made writ-
ten findings as required by local ordinance;
(2) the evidence did not support the grant-
ing of the permits and they must be set
aside as a matter of law.

Section 1201 of the Mono County Zoning
Ordinance provides, in pertinent part:
"USE PERMITS. Use permits may be
granted by the Planning Commission only
when it is found that . (Italics
added.) The question involved here, then,
is whether the use of the word "found"
requires specific written findings. In
Schumm v. Board of Supervisors (1956)
140 Cal.App.2d 874, 878, 295 P.2d 934, 937,
the court was required to interpret an ordi-
nance which provided: "'In recommending
the approval of any use permit the Plan-
ning Commission shall find ..
The court held that written findings were
not required. (140 Cal.App.2d at pp. 880-
881, 295 P.2d 934.) However, in Broad-
way, Laguna, etc., Assn. v. Board of Per-
mit Appeals (1967) 66 Cal.2d 767, 59
Cal.Rptr. 146, 427 P.2d 810, we said that
an ordinance which required the zoning
administrator to specify "in his findings the
facts which establish (66 Cal.2d
at p. 771, fn. 3, 59 Cal.Rptr. at p. 149, 427
P.2d at p. 813) necessitated written find-
ings and that the normal presumption of
necessary findings "does not apply to agen-
cies which must expressly state their find-
ings and must set forth the relevant sup-
portive facts." (66 Cal.2d at p. 773, 59
Cal.Rptr. at p. 150, 427 P.2d at p. 814:
cf. Siller v. Board of Supervisors (1962)
58 Cal.2d 479, 484, 25 Cal.Rptr. 73, 375
P2d 41.)

The proper interpretation of ordinances
using the word "findings" or "found"
naturally depends on the intent of the body
adopting those ordinances. In light of the
statewide concern expressed by the Legis-
lature for written findings in the field of
ecology, as evidenced by the EQA's impact
report, the proper construction of the
words "findings" or "found" requires a


1064 Cal.







FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY. Cal. 1065
Cite as 502 P.2d 1049


written statement of the supportive facts on
which the agency has made its decision.
Since this report involves the assessment
of a myriad of elements (see 21100) it
obviously includes all those facts which
would be contained in written findings if
such findings were required by the ordi-
nance. Accordingly, the written report af-
fords plaintiffs the same benefits that
would be. achieved by written findings pur-
suant to the ordinance, and we therefore
hold in this case no additional written find-
ings in the orthodox sense are required.
Plaintiffs finally contend that there was
insubstantial evidence to support the issu-
.ance of the permits and that they must be
set aside as a matter of law. In view
of our conclusion that the EQA applies
to private activity, and the fact that such a
Holding will necessitate further proceedings
by the defendants, we find it unnecessary
to analyze the weight of the evidence.


VI
We emphasize that by the terms of the
act an environmental impact report is re-
quired only for a project "which may have
a significant effect on the environment" (
-21151; see also 21100, 21101, 21102,
: 21150). In the case at bar the issue
'.whether the proposed project of Interna-
..* tional might have such an effect was not
resolved by either the defendants or the
superior court, presumably because it was
believed the project was not covered by the
act in any event. It would be inappro-
priate for this court to determine the issue
in the first instance, and we therefore
leave the matter to the defendants' future
proceedings.

We recognize that the reach of the stat-
utory phrase, "significant effect on the en-
vironment," is not immediately clear. To
some extent this is inevitable in a statute
which deals, as the EQA must, with ques-
tions of degree. Further legislative or ad-
ministrative guidance may be forthcoming
on this point among others. But the
courts, for their part, are limited to dis-
charging their constitutional function of
502 P.2d--67V.


deciding the cases that are brought before
them. As with other questions of statutory
interpretation, the "significant effect" lan-
guage of the act will thus be fleshed out
by the normal process of case-by-case ad-
judication.

[18, 19] Two general observations, nev-
ertheless, may be made at this time. On
the one hand, in view of the clearly ex-
pressed legislative intent to preserve and
enhance the quality of the environment
( 21000, 21001), the courts will not
countenance abuse of the "significant ef-
fect" qualification as a subterfuge to ex-
cuse the making of impact reports other-
wise required by the act. In this connec-
tion we stress that the Legislature has
mandated an environmental impact report
not only when a proposed project will have
a significant environmental effect, but also
when it "may" ( 21101, 21150, 21151) or
"could" ( 21100, 21102) have such an ef-
fect. On the other hand, common sense
tells us that the majority of private proj-
ects for which a government permit or
similar entitlement is necessary are minor
in scope-e. g., relating only to the con-
struction, improvement, or operation of an
individual dwelling or small business-and
hence, in the absence of unusual circum-
stances, have little or no effect on the pub-
lic environment. Such projects, according-
ly, may be approved exactly as before the
enactment of the EQA.

[20] In their petition for rehearing re-
spondents and amici curiae assert that in
the period between November 23, 1970,
when the EQA went into effect, and Sep-
tember 21, 1972, the date of our decision
herein, governmental agencies approved
private projects, now either in progress or
completed, without requiring the prepara-
tion of environmental impact reports, in
the erroneous but good faith belief that
such projects were exempt from the act.
To avoid possible hardship to parties who
have relied on permits thus issued, we are
asked to make our decision prospective
only.








502 PACIFIC REPORTER, 2d SERIES


We see no need for such a drastic step.
In the minority of cases in which impact
reports should have been prepared, the ap-
propriate statutes of limitations will gov-
ern. As noted herein (p. 775, of 104 Cal.
Rptr., p. 1063 of 502 P.2d ante), the Mono
County Zoning Ordinance declares a 30-
day statute of limitations for seeking judi-
cial review of a decision of defendant
Board. If this provision is typical of such
ordinances, very few if any of the projects
approved during the 22-month period in
question will still be subject to attack.
And if a substantially longer statute of
limitations is provided in any case, similar
protection may be afforded by invoking the
doctrine of laches.
We are also asked to stay the effective
date of our decision in order to allow addi-
tional time, inter alia, for governmental
agencies to draw up guidelines and develop
procedures for applying the EQA to pri-
vate projects as defined herein. Again we
perceive po real necessity for such a de-
parture from normal practice. In extraor-
dinary circumstances we have authorized a
delay in the effectiveness of a decision of
this court when its immediate implementa-
tion would have been virtually impossible.
(See, e. g., Young v. Gnoss (1972) 7 Cal.3d
18, 28, 101 Cal.Rptr. 533, 495 P.2d 445;
Serrano v. Priest (1971) 5 Cal.3d 584,
618-619, 96 Cal.Rptr. 601, 487 P.2d 1241.)
For the reasons given above, however, we
expect that the majority of the private
projects for which governmental approval
will be sought in the future will present no
risk of significant environmental effect
and therefore will not require impact re-
ports in any event. With respect to the
remainder, we point out that the EQA has
been in effect since November 23, 1970,
and many of the questions here raised as
to the method of complying with the act in
the case of private projects could also have
arisen during the past 22 months in the
case of public projects. We must there-
fore presume that governmental agencies


charged with responsibilities under the act
have been performing their duties (Civ.
Code, 3548) and can now draw upon
their planning and experience in the public
sector to aid in solving whatever problems
they may have in the private sector. To
the extent such planning and experience
prove inadequate to the task at hand, we
do not doubt that with the good will and
cooperation of all concerned appropriate
new guidelines and procedures can be
promptly devised. And if some delays
nevertheless ensue in processing applica-
tions for certain private projects which
threaten to have a significant effect on the.
environment, it should be remembered that
such delays are implicit in the Legislature's
primary decision to require preparation of
a written, detailed environmental impact
report in precisely those cases.
The order appealed from is reversed,
with directions to grant a peremptory writ
of mandate ordering defendants to set aside
the issuance of the conditional use and
building permits.


WRIGHT, C. J., and McCOMB, PE.
TERS, TOBRINER, and BURKE, JJ,
concur.


SULLIVAN, Justice (dissenting).
I dissent. The opinion of the majority.
discarding settled principles of statutory
construction and distorting the plain mean-
ing of common English words, adopts as
interpretation of the pertinent section of
the Environmental Quality Act of 197,
(EQA) (Pub.Resources Code, 2100)-
21151)1 which in my opinion is not legally
supportable. The desired end arrived at
by the majority cannot justify such a
means. "This court has no power to re-
write the statute so as to make it con-
form to a presumed intention which is not
expressed." (Seaboard Acceptance Corp.
v. Shay (1931) 214 Cal. 361, 365, 5 P-d
882, 884; italics added.)


1. Hereafter, unless otherwise indicated, all section references are to the Public Ite.ourn"
Code.


1066 Cal.


a I







FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY.
Cite as 502 P.2d 1049


The crucial question before us is, of
course, whether Mono County must pre-
pare an environmental impact report, pur-
suant to section 21151, before it grants a
conditional use or building permit for In-
ternational's proposed development at
Mammoth Lakes. The answer to this
question depends in turn on the resolution
of a problem of statutory construction-
whether the phrase "any project they in-
tend to carry out" ( 21151) includes with-
in its scope a private development for
which a governmental permit is required.
As will appear, I conclude that the appli-
cable rules of interpretation compel a neg-
ative answer.

Section 21151 provides: "The legislative
bodies of all cities and counties which
have an officially adopted conservation
element of a general plan shall make a
finding that any project they intend to
carry out, which may have a significant
effect on the environment, is in accord
with the conservation element of the gen-
eral plan. All other local governmental
agencies shall make an environmental im-
pact report on any project they intend to
carry out which may have a significant
effect on the environment and shall sub-
mit it to the appropriate local planning
agency as part of the report required by
Section 65402 of the Government Code."

In order to construe the statutory phrase
"any project they intend to carry out,"
it is fundamental that the court "should
ascertain the intent of the Legislature so
as to effectuate the purpose of the law."
(Select Base Materials v. Board of Equali-
zation (1959) 51 Cal.2d 640, 645, 335 P.2d
672, 675 and cases there cited.) Our en-
deavor must be to produce a "reasonable
result consistent with legislative purpose
." (E. g., Kusior v. Silver
(1960) 54 Cal.2d 603, 620, 7 Cal.Rptr. 129,
140, 354 P.2d 657, 668).
We pointed out many years ago that in
ascertaining the will of the Legislature,
"[t]he court turns first to the words
themselves for the answer. It may also
properly rely on extrinsic aids .


Primarily, however, the words, in arrange-
ment that superimposes the purpose of the
Legislature upon their dictionary mean-
ing, stand in immobilized sentry, reminders
that whether their arrangement was wis-
dom or folly, it was wittingly undertaken
and not to be disregarded. [T]
If the words of the statute are clear, the
court should not add to or alter them to
accomplish a purpose that does not appear
on the face of the statute or from its leg-
islative history. [Citations.] Certainly.
the court is not at liberty to seek hidden
meanings not suggested by the statute or
by the available extrinsic aids. (Citation.]"
(People v. Knowles (1950) 35 Cal.2d 175,
182-183, 217 P.2d 1, 5; see also In re
Miller (1947) 31 Cal.2d 191, 198-199, 187
P.2d 722; Code Civ.Proc., 1858.)

In giving effect to this canon of literal
construction we must interpret statutes
"according to the usual, ordinary import
of the language employed in framing them."
(In re Alpine (1928) 203 Cal. 731, 737, 265
P. 947, 949; see also Merrill v. Depart-
ment of Motor Vehicles (1969) 71 Cal.2d
907, 918, 80 Cal.Rptr. 89, 458 P.2d 33;
Chavez v. Sargent (1959) 52 Cal.2d 162,
203, 339 P.2d 801.) The sweep of the
statute should not be enlarged by introduc-
tion of language which the Legislature
has overtly left out. (E. g., Keeler v.
Superior Court (1970) 2 Cal.3d 619, 632,
87 Cal.Rptr. 481, 470 P.2d 617.)

I recognize, of course, that an enact-
ment must be interpreted so as to harmo-
nize its various parts, by considering the
particular clause or section in the light
of the statutory framework as a whole
(Select Base Materials v. Board of Equali-
zation, supra, 51 Cal,2d 640, 645, 335 P.2d
672; Stafford v. L. A., etc., Retirement
Board (1954) 42 Cal.2d 795, 799, 270 P.
2d 12); but a special or particular pro-
vision qualifies the general, especially
where the provisions are inconsistent and
cannot be reconciled (People v. Western
Air Lines, Inc. (1954) 42 Cal.2d 621, 637,
268 P.2d 723, Rose v. State of California
(1942) 19 Cal.2d 713, 723-724, 123 P.2d


Cal. 1067


I I









502 PACIFIC REPORTER, 2d SERIES


505; In re Marquez (1935) 3 Cal.2d 625,
629, 45 P.2d 342; Code Civ.Proc., 1859)
and where the particular provision is lat-
er in point of position (Hartford Ace., etc.,
Co. v. City of Tulare (1947) 30 Cal.2d 832,
835, 186 P.2d 121.)
Applying these general principles in con-
struing the phrase "any project they in-
tend to carry out," I begin with the words
themselves. Since no definitions are pro-
vided in the EQA, our first guide is the
dictionary. Webster's Third International
Dictionary, Unabridged (1963) defines the
noun "project" in pertinent part as "(1):
a specific plan or design a
scheme (3): a planned under-
taking: [as] (a): a definitely formulated
piece of research (b)(1): an
undertaking devised to effect the' reclama-
tion or improvement of a particular area
of land" (at p. 1813). The verb "intend"
is defined in relevant part thus: "(2)(a)
(1): to have in mind as a design or pur-
pose: .. (2) as an ob-
ject to be gained or achieved" (id. at p.
1175). The verb "carry out" is defined
thus: "(1): to put into execution (2): to
bring to a successful issue (3): to continue
to an end or stopping point" (Id. at p.
344.)

Putting together these definitions, the
statutory phrasing at issue takes on mean-
ing: any undertaking, designed to be put
into execution and successfully completed.
Moreover, the pronoun "they" in the phrase
"any project they intend to carry out"
sharpens the significance of the words in
the context of the case at bench. "They,"
of course, refers back to "legislative bodies

2. I recognize that Mono County did not
have a conservation element at the time of
the decisions of the planning commission
and the board of supervisors, and thus
only the second sentence of section 21151
is strictly applicable herein. Neverthe-
less, it is instructive to analyze both sen-
tences to discern legislative intent, since
both contain the crucial words "project
they intend to carry out."

3. Clearly the phrase "[(all other local gov-
ernmental agencies" in this context means
cities and counties which have not of-


of all cities and counties" in the first sen-
tence of section 21151, and to "[a]ll other
local governmental agencies" in the sec-
ond sentence.

In other words, under the first sentence
of the section, legislative bodies of cities
and counties which have an officially
adopted conservation element of a general
plan must make a finding that any under-
taking they propose to put into execution
which may have a significant effect on the
environment "is in accord" with such con-
servation element. Under the second sen-
tence, all other local governmental agen-
cies (i. e., cities and counties which do not
have an officially adopted conservation ele-
ment)3 must make an environmental im-
pact report on any undertaking they pro-
pose to put into execution which may have
a significant effect on the environment.
The meaning of this language is plain
and clear. Local agencies (i. e., cities and
counties) must make an environmental
finding (to use a shorthand expression) or
an environmental impact report, as the case
may be, in connection with any proposed
project which the local agency itself di-
rectly plans to put into effect or execute.
To put it another way, such a finding or
report is required only with respect to pub-
lic works projects of local agencies (as
described in Gov.Code, 65401). Nowhere
in section 21151 do we find any language
to the effect that local agencies shall make
such findings or reports with respect to
private projects for which they may issue
permits, licenses or other regulations
Certainly, if this had been the intention of
the Legislature, it could have very easily

ficially adopted i conservation elermint
in a general plan; it does not mean
governmental entities other than ,itit'
and counties. (Compare section 5i1)l
of the Government Code. which defined
"local agencies" under the context of ti-
tle 5 ("Local agencies"), division I
("Cities and Counties"), part 1 ("Power
and Duties Common to Cities and Coun-
ties"), chapter 1 ("General") as (1-
lows: "'Local agency' as used in this
division means county, city, or city and
county, unless the context otherwise rt
quires."


1068 Cal.


Ill I I I I I I I rlll Ls I






FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO OTY. Cal. 1069
Cite as 502 P.2d 1049


expressed such intention in a few simple
words, coordinated with the plain meaning
of the words it had already employed.
This conclusion is buttressed by addition-
al language in the second sentence of sec-
tion 21151, to the effect that an impact re-
port on "any project which may
have a significant effect on the environ-
ment" shall be submitted "as part of the
report required by section 65402 of the
Government Code." Section 65402 is
found in chapter 3 ("Local Planning") of
title 7 ("Planning") of the Government
Code. It provides in brief that neither a
county nor a city shall acquire real prop-
erty for public purposes nor construct a
public building or structure without mak-
4ing a report to the local planning agency
so that the latter may ascertain whether
the scheme conforms to its general plan.
Since section 21151 environmental impact
reports are to be incorporated in reports
prepared pursuant to Government Code
section 65402, it would make no sense for
a section 21151 report to apply to a "proj-
ect" beyond the scope of the Government
Code section. Inasmuch as section 65402
applies only to public acquisition, develop-
ment, or construction, so too must section
21151 apply only to public works projects,
and not as well to private activity, carried
out by a developer like International. A
contrary result would lead to the adminis-
trative illogic of a local planning agency
processing reports on activities beyond its
statutory purview.
In sum, I conclude that the environment-
al finding or impact report requirement of
section 21151 is not applicable to private ac-
tivity for which a governmental permit is
necessary, as opposed to "projects" carried
out by public entities. I reach this result
merely by analysis of the plain meaning of
the statutory words "any project they in-
tend to carry out" in the context of the
section in which they are found. (See
People v. Knowles, supra, 35 Cal.2d 175,
182-183, 217 P.2d 1; In re Alpine, supra,
203 Cal. 731, 737, 265 P. 947.)
The above analysis of the plain meaning
of the words of section 21151 is supported


by the Legislature's placement of that sec-
tion in the statutory scheme of the EQA
as a whole. Section 21151 is located in
chapter 4 of the EQA, which the Legisla-
ture has entitled "Local agencies." Section
21151 is the only operative provision of
the chapter-and of the entire act-setting
forth the circumstances under which local
agencies are required to adopt environ-
mental findings or impact reports. No-
where within chapter 4 is there mention
of private activity or intent to regulate it.
Similarly, chapter 3 of the act, labeled
"State Agencies, Boards and Commissions,"
sets forth with almost identical wording
requirements of environmental impact re-
ports for projects that state agencies,
boards, qnd commissions "propose to carry
out which could have a significant effect
on the environment of the state." (
21100.) Section 21100, the operative pro-
vision affecting state agencies, again does
not indicate any intent to regulate private
activity, nor can such indication be found
anywhere alse within chapter 3. Chapter
2'merely states the short title of the act.
Only in chapter 1, which the Legislature
has merely labeled "Policy," is there any
reference to "private interests," "individu-
als," or "corporations" ( 21000, subds. (f)
and (g)) or the general need to "regulate"
their activities ( 21000, subd. (g)). How-
ever, those lofty and imprecise references
to private activity in chapter 1 pale in
importance when compared with the fact of
their omission in chapters 3 and 4. Since
the latter chapters contain the only opera-
tive provisions of the act, their omission of
any reference to private "projects" (e. g.,
for which a governmental permit is neces-
sary) is significant.
Thus it is abundantly clear that the
Legislature simply did not intend either
section 21100 (environmental impact re-
port on projects to be carried out by
state agencies) or section 21151 (environ-
mental impact report on projects to be car-
ried out by local agencies) to apply to
projects to be carried out by private per-
sons or corporations. That clarity is ap-
parent in the structure and framework of


IC I I II I







502 PACIFIC REPORTER, 2d SERIES


the EQA, the plain meaning of its opera-
tive language, and a textual examination of
the section at issue. The majority make
no attempt to interpret those words by
accepted rules of literal construction. In-
stead they draw lavishly from general find-
ings and declarations of the Legislature
(concerning maintenance of environmental
quality ( 21000) and the policy of the
state in that respect ( 21001)), refer to
similar langauge in federal law, and trace
the course of the EQA through the Legisla-
ture. In short, the majority, unable to
discover in the words of section 21151 any
intent to cover private projects, attempt to
persuade us by the elaborate reasoning re-
ferred to above, that in some way private
projects must be deemed to be included any-
how. I suggest that in this venture they
were completely unsuccessful. Plainly
private projects are not so included.
The majority initially stress other sec-
tions of the EQA to support enlargement
of the obviously limited meaning of section
21151. Chief reliance is placed on sections
21000 and 21001, which are said to "ex-
pressly set forth" the intent of the Legisla-
ture. In particular the opinion quotes sec-
tion 21000, subdivision (g).4 This sub-
division, together with subdivisions (e) and
(f) of section 21000 and subdivisions (d)
and (f) of section 21001, is employed to
support the broad proposition that "the
Legislature intended to include the per-
mit-issuing process [for private projects]
as a governmental activity for which an
environmental impact report is required."
(Ante, at p. 767.)
Such an attempt to infuse these general
expressions into section 21151 does not
withstand scrutiny. Section 21151, setting
forth requirements for environmental find-
ings or impact reports, is the only section
of the EQA with actual operative impact
insofar as local agencies are concerned, as
the parties herein recognize. It is found

4. "It is the intent of the Legislature that
all agencies of the state government
which regulate activities of private indi-
viduals, corporations, and public agencies
which are found to affect the quality of


under a separate chapter 4, which has spe.
cial reference to local agencies. It is the
very last section of the act, separated by
various intervening sections from the ger.
eral "intent" provisions of sections 21000
and 21001. It constitutes a particular, spe.
cial provision within the more general cast
of the act as a whole.

However commendable the general dee.
larations of state policy contained in sec>
tions 21000 and 21001, they exert no broad-
ening influence on the clearly limited lan-
guage of section 21151. They are impotent
to make the clear words of that section say
more than they actually do. Indeed, the
broad declarations of sections 21000 and
21001 are properly harmonized with ie
particular operative provisions of sections
21100 (state projects) and 21151 (local
governmental projects) by treating those
particular porvisions as paramount to the
general statements of the preliminary see-
tions. (Code Civ.Proc., 1859.) ?

My conclusion that section 21151 does
not apply to private projects is supported
rather than refuted by the legislative his
tory of the act itself, as it passed from initi-
al introduction in the Assembly to final
enactment. While the "general intent
provisions of sections 21000 and 21001 were
retained virtually intact in the course of
the legislative process, the operative pro-
vision of section 21151 was significantly:
amended.

When Assembly Bill 2045 was first intro-
duced on April 2, 1970, by members of the
Assembly's Select Committee on Environ-
mental Quality, the proposed section 21151
provided as follows: "All local governl
mental agencies shall conduct needed enf
vironmental impact studies and shall con-
sider alternative methods for any progr a
carried out by them which may have a Si-
nificant effect on the quality of the enr*
ronment." (Italics added.)

the environment, shall regulate such 6
tivities so that major consideration ia
given to preventing environmental dam-
age." (Italics added.)




t ,
*


1070 Cal.


a I






FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO OTY. Cal. 1071

Cite as 502 P.2d 1049


By May 26, 1970 the proposed section
21151 had been almost entirely rewritten,
after referral to the Assembly Committee
on Natural Resources and Conservation.
The bill was reintroduced and passed by the
Assembly on July 17, 1970. At that time
proposed section 21151 read as follows:
"The legislative body of all cities and coun-
ties which have an officially adopted con-
versation element of a general plan shall
make a finding that any program they in-
tend to carry out, which may have a signif-
icant effect on the environment, is in ac-
cord with the conservation element of the
general plan. Local governmental units
without an officially adopted conservation
element shall make environmental impact
reports on any program they intend to
carry out, which may have a significant
effect on the quality of the environment.
All other local governmental agencies shall
make an environmental impact report on
any program they intend to carry out which
may have a significant effect on the en-
vironment and shall submit it to the appro-
priate local planning agency as a part of
the report required by Section 65402 of
the Government Code." (Italics added.)

5. Thus the Senate's version of section
21151 on August 4, 1970 read as follows,
deletions being shown by strikeouts and
additions by italics: "The legislative
body of all cities and counties which
have an officially adopted conservation
element of a general plan shall make a
finding that any peegraen project or
change in zoning they intend to carry
out, which may have a significant effect
on the environment, is in accord with
the conservation element of the general
plan. Local governmental units without
an officially adopted conservation element
shall make environmental impact reports
on any program project they intend to
carry out which may have a significant
effect on the quality of the environment.
All other local governmental agencies
shall make an environmental impact re-
port on any program they intend to carry
out which may have a significant effect
on the environment and shall submit it
to the appropriate local planning agency
as part of the report required by Section
65402 of the Government Code."
6. "The legislative body bodies of all cities
and counties which have an officially


The bill was then sent to the Senate,
where the Senate Committee on Govern-
ment Organization amended section 21151
again by striking the first above refer-
ence to "program" and replacing it with
the words "project or change in zoning,"
and by striking the second reference to
"program" and replacing it merely with
the word "project."*

On August 14, 1970 section 21151 was
amended again.6
Finally, and most significantly, section
21151 was again amended, by deleting en-
tirely the above second sentence referring
to the environmental effect of any "change
in zoning." Thus on August 20, 1971, the
section read as it was finally adopted and
read now: "The legislative bodies of all
cities and counties which have an officially
adopted conservation element of a general
plan shall make a finding that any project
they intend to carry out, which may have a
significant effect on the environment, is in
accord with the conservation clement of the
general plan. The legislative bodies e4 *4l
seeti tes whi-h hal e 1 I- ei44ei1 4-y al4epte4d
ee servatien element o4 f geten i plaen

adopted conservation clement of a gen-
cral ilan shall make a finding that any
project p ehange 4 eeanig they intend
to carry out, which may have a signifi-
cant effect on the environment, is in
accord with the conservation element of
the general plan. ;eeet governmental
wilts withnem st a ffjipid T tedpled
e1Reervaft#e:H element shall make e-
vi eie4ental imRitet rfee eon any Pw -
eet they intend 4t efty erf t whie4h may
hfe 4g eat effeet eo the
qu~ety of t4e enRi ment+- The legisla-
tire bodies of all counties which have an
officially adopted conservation clement of
a general plan shall make a finding that
any change in zoning they intend to carry
out which may hare a significant effect
on the environment, is in accord with the
conservation element of the general plan.
All other local governmental agencies
shall make an environmental impact re-
port on any program project they in-
tend to carry out which may have a sig-
nificant effect on the environment and
shall submit it to the appropriate local
planning agency as part of the report
required by Section 65402 of the Govern-
ment Code."







502 PACIFIC REPORTER, 2d SERIES


shell make e finding thet any change in
evening they intend te etry eet; which may
havie a sigfticfent ef4eet on the etwiren-
me t; s in aecfr with the eonervetie
element e4 the general peRa All other lo-
cal governmental agencies shall make an
environmental impact report on any project
they intend to carry out which may have a
significant effect on the environment and
shall submit it to the appropriate local plan-
ning agency as part of the report required
by Section 65402 of the Government Code."
Contrary to the majority's claim, no spe-
cial significance may be attached to the in-
termediate amendments which may indeed
fairly be summarized as a change from
"program" to "project." That change is
not nearly as clear or as broadening as the
majority make it out to be, since either
"program" or "project" may connote "plan-
ning" or, on the other hand, actual physical
alterations in the environment. Nor is the
analogy to the federal guidelines under the
National Environmental Policy Act
(NEPA) helpful in this instance, since, as
will be explained, the differences between
the federal and state enactments are more
significant than the similarities in solving
the present problem.
The truly important amendment, in my
view, is the last one, which deletes the
requirement that any legislative body of
a city or county with a conservation ele-
ment in its general plan make a finding of
environmental accordance with that ele-
ment for any "change in zoning" which
it "intends to carry out." In other words,
after the amendment, and as enacted, sec-
tion 21151 requires the local body to find
accordance with the conservation element
of its general plan only for a "project"
which it intends to carry out. In a strict
sense it is arguable that the change is in-
applicable to Mono County, since it did not'
have such conservation element at the
pertinent time; but the change is never-
theless meaningful to show the narrowing
process to which section 21151 was subject-
ed in the course of final enactment. The
Legislature's obvious decision to make the
requirements of section 21151 inapplicable


to local zoning changes is especially im-
portant in the instant case, since zoning
amendments and changes are one of the
classic means by which a locality regulates
private activity. The narrowing of section
21151 in this manner strengthens the con-
clusion that the Legislature did not intend
the operative provisions of that section to
apply to private activity for which a gov-
ernmental permit is necessary, but intend-
ed them to apply only to public works proj-
ects.

I turn now to consider the majority's re-
liance upon the federal act (NEPA) and the
interim guidelines of the Council on En-
vironmental Quality (ante, pp. 25-27.)
Respondents concede in their brief that the
NEPA and the council's interim guidelines
are part of the legislative history of the
state act, by virtue of their adoption short-
ly prior to the passage of the state act
and because of similarities in provisions
(see ante, p. 25, fn. 4). Yet, as respond-
ents point out, the very similarities between
the state act and the federal language un-
derscore the fact that the Legislature in-
tended the differences to be meaningful-
a well-established rule (City of Port Huen-
eme v. City of Oxnard (1959) 52 Cal2d 385,
395-396, 341 P.2d 318; Estate of Simpson
(1954) 43 Cal.2d 594, 600, 275 P.2d 467;
People v. Kuhn (1963) 216 Cal.App.2d 695,
699, 31 Cal.Rptr. 253) which the majority
ignore. Examination of these differences
results again in the conclusion that section
21151 does not apply to a private project
for which a governmental permit is re-
quired.

First, the NEPA provides in section 102
(2)(C) (42 U.S.C. 4332(2)(C)) that:
"The Congress authorizes and directs that
to the fullest extent possible: (2)
all agencies of the Federal Government shall
[] (C) include in every rec-
ommendation or report on proposals for
legislation and other major Federal action $
significantly affecting the quality of the
human environment, a detailed [environ-
mental impact] statement by the responsible
official (Italics added.)




"" '' SS-r


1072 Cal.






FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY.
Cite as 502 P.2d 1049


Next, the interim guidelines of the Coun-
cil on Environmental Quality, promulgated
on May 11, 1970 (before any significant
amendments to the EQA) stated:
"5. Actions included [under the NEPA]


"(a) 'Actions' include but are not lim-
ited to:
"(i) Recommendations or reports re-
lating to legislation and appropriations;
"(ii) Projects and continuing activi-
ties;
"-Directly undertaken by Federal
agencies;
"-Supported in whole or in part
through Federal contracts, grants, sub-
.sidies, loans or other forms of funding
assistance;
"-Involving a Federal lease, permit,
License, certificate or other entitlement
for use;
"(iii) Policy-and procedure-making."
(35 Fed.Reg. 7390, 7391; see also 36
Fed.Reg. 7724, 7724; italics added.)
In light of this tri-partite federal cate-
gorization of "projects," which, as the ma-
jority remind us, the Legislature had in
mind when it enacted the EQA, what are
we to make of the now-familiar phrasing of
section 21151, "any project they intend to
carry out," i. e., any project which local
agencies intend to carry out?
To me two crucial points are clear. First,
the very use of the word "project" by the
Legislature in the first place shows that
the Legislature intended section 21151 to
have narrower scope than the federal pro-
visions, since "project" is manifestly a sub-
category of "actions" according to the feder-
al guideline No. 5. This difference in word-
ing indicates that the Legislature desired to
limit the coverage of section 21151 to "proj-
ects" only (subcategory (ii)) as opposed to
recommendationsos or reports relating to

7. The EQA omits the federal reference to
"continuing activities" as well as "proj-
ects." This is one difference which is
not significant in the instant context since
the distinction between "projects" and
"continuing activities" would appear to be
502 P.2d-68


legislation and appropriations" or policyiy
-and procedure-making."

Second, when we scrutinize the type of
"project" covered by section 21151-any
project local bodies or agencies intend to
carry out-the analogy between the federal
and state language is evidently not the one
urged by the majority. Examination of the
three federal types of projectscs and con-
tinuing activities," supra, compels the con-
clusion that the Legislature was analogiz-
ing to projectscs and continuing activities:
[4] [d]irectly undertaken by federal agen-
cies" when it adopted section 21151. The
phrase "any project [local agencies] intend
to carry out" in the EQA is clearly similar
to the phrase directlyty undertaken by fed-
eral agencies" in the federal guidelines.
These two types of "projects" can be read-
ily analogized and their similarity. is pro-
nounced, when we consider the marked dif-
ference between the phrasing of section
21151 and the other two types of federal
projects: those supportedtd in whole or
in part through Federal contracts, grants
or other forms of funding as-
sistance," or those involvingig a Federal
lease, permit, license, certificate or other
entitlement for use."

In light of these differences, which we
must deem significant, the phrase "any
project they intend to carry out" again
takes on the meaning of a project actually
executed or carried foi-rard by local agen-
cies (a public works project)-just like proj-
ects directly undertaken by Federal agen-
cies. Moreover, under the rule of "expres-
sio unius est e.rclusio alterious" the Legis-
lature was evidently not including within
the coverage of section 21151 private proj-
ects for which a governmental permit is
required. If the Legislature had intended
such a result, it would indeed have included
language similar to that used in the descrip-
tion of the counterpart type of Federal proj-

one of time duration, having nothing to do
with the distinction between Imblic anl
private activity at issue herein. Of course.
the omission of "continuing activities" in
the EQA may indeed be important in other
cases.


Cal. 1073


__







502 PACIFIC REPORTER, 2d SERIES


cct: involvingig a Federal lease, permit,
license, certificate or other entitlement for
use." There is simply no basis for the ma-
jority's facile conclusion to the contrary.

Nor is there any justification, let alone
constructional value, to the majority's "par-
enthetical" use of the statement of Assem-
blyman Knox in an attempt to shore up
its interpretation of the Legislature's in-
tent. It is a settled principle that such
statements are inadmissible to show the
intent of the Legislature as a whole in con-
struction of statutes. (In re Lavine (1935)
2 Cal.2d 324, 327, 41 P.2d 161, 42 P.2d 311;
Rich v. State Board of Optometry (1965)
235 Cal.App.2d 591, 603, 45 Cal.Rptr. 512.)
I see no reason to depart from this rule of
law in the instant case, even "parenthetical-
ly"; there has been no adequate showing
that the statement of Assemblyman Knox
(or, for that matter, the contrary declara-
tion of Assemblyman Porter) falls within
the sole exception to the rule, where the
legislator's testimony consists only of a re-
iteration of legislative discussion leading
to adoption of proposed amendments, which
"amounts to a report of the [legislative]
committee's activity and is cer-
tainly part of the legislative history "
(Rich v. State Board of Optometry, supra,
235 Cal.App.2d 591, 603, 45 Cal.Rptr. 512,
520.)

The majority also ignore the fact that
two new bills were introduced in the Assem-
bly in March 1972 precisely for the pur-
pose of expanding the scope of section 21151
from "any project they intend to carry out"
to "any major action," as that term is al-
most identically explicated in the federal
guidelines referred to above. The introduc-
tion of these new bills indicates that many
legislators do not believe that the present
section 21151 carries the broad impact as-
signed to it by the majority.

On March 2, 1972, 46 members of the As-
sembly, together with 14 members of the
Senate as co-authors, introduced A.B. 681.


This bill would, inter alia, add a fifth chap-
ter to the EQA concerning environmental
review of actions by public agencies. The
new chapter would institute a Department
of Environmental Impact Review as an ad-
ministrative subdivision of the State En-
vironmental Quality Board. Section 99 of
the bill would amend the present section
21151 to read as follows (deletions shown
by strike-outs, additions by italics): "The
legislative bodies of all cities and counties
which have an officially adopted conserva-
tion element of a general plan shall make
a finding that any prjeet they intend +e
eaFry emt; major action which may could
have a significant effect on the environ-
ment, is in accord with the conservation
element of the general plan. All ether
local governmental agencies including dis-
tricts shall make an environmental impact
report on any p~ject they intend te e-py
ett major action which nfay could have a
significant effect on the environment and
shall submit it to the appropriate local
planning agency as part of the report re-
quired by Section 65402 of the Government
Code and to the State Environmental Qual-
ity Board. .


Section 98 of the bill would institute a
new section 21102 which would define the
term "action" as follows:
"(a) Recommendation or reports relat- '*.'
ing to legislation and appropriation.
"(b) Projects and continuing actiti '-/
ties:
"(1) Directly undertaken by public
agencies. [f] (2) Supported in whole
or in part through public contracts,
grants, subsidies, loans or other form-s of
funding assistance. [I) (3) Involving a
public lease, permit, license, certificate or
other entitlement for use.
"(c) Policy and procedure making."
(Italics added.)
This terminology is, of course, identical to
the federal guideline No. 5 quoted supra,
except for the immaterial substitution of





'7%r%


1074 Cal.


I


a __ Il I r I r_ _~bn








FRIENDS OF MAMMOTH v. BOARD OF SUPER. OF MONO CTY.
Cite as 502 P.2d 1049


the word "public" for the word "federal"
to render the language relevant to the state
Setting. First, the proposed amendment
would plainly widen the scope of section
21151 to cover not only "projects and con-
tiinuing activities" but other subcategories
Sof "actions" as well; second, the proposed
.. amendment would also broaden the meaning
of the word "project" itself, from the type
now covered (projects which public agen-
cies "ntei'd to carry out," i. e., directlyty
$&nddrt.aken by public agencies") to include
,as %ell those projects involvingig a public
.lase,. permit or other entitlement
'-or use." The proposed amendment, in light
.!efl the directly analogous federal wording,
.~acanot be explained merely as an attempt
e1 clari f, but not broaden the present mean-
og of "project" as that word appears in
tsec.,on 21151. The suggested change shows
that 60 members of the Legislature do not
behelie that the present section 21151 covers
4purcld prn-ate activity for which a public
permit is necessary. That so many legisla-
'tors co-authored the proposed amendment
contained in A.B. 681 is further evidence
of the inaccuracy of the majority's inter-
(etanion o' the present section 21151.

ZMoreover, on March 13, 1972, A.B. 889
as introduced (by Assemblyman Knox
nimse'lf). This bill proposes many of the
sune aniiedments to the EQA included in
4A.E. (IS (e. g., by adding a new chapter
12 dt inning certain terms such as "project"
lsubtantially identical to the above word-
ing of A.B. 681) and "public agency" (any
"tate agency, board or commission, any
Munmt, city and county, city, regional agen-
.y, public district, or other political subdi-
sion ")). In addition, A.B. 889 would
amend section 21151 to reads as follows
deletioiis shown by strike-outs, additions
I7 italics): "The legislative bodies of all
Sties and counties which have an officially
adopted conservation element of a general
Ilan shall make a finding that any project
hc intend to carry out, which may have
A significant effect on the environment,
Sin accord with the conservation element


of the general plan. All other local gevi-
er:nmental agencies shall make an environ-
mental impact report on any project they
intend to carry out which may have a sig-
nificant effect on the environment and
sh e submit i4 te the appropriate loeea
plantn1ig gc-ney as pe4 e4 t4he eperst re-
quttired y eetieon 6542 e4 the Government
Gode Wihen a report is required by Sec-
tion 65402 of the Government Code, the
environmental impact report may be sub-
mitted as a part of that report."


Once again, the thrust of these proposed
changes is evident: Section 21151 would ex-
pressly cover the type of "project" which
plaintiffs herein wish were covered now.
Environmental impact reports would be
submitted for projects other than the public
works type of projects for which a report
is required under Government Code section
65402. A.B. 889 and A.B. 681 together
constitute additional support for respond-
ents' basic contention: that the present
section 21151 does not apply to private ac-
tivity involving a use permit, such as In-
ternational's proposed development at Mam-
moth Lakes.


To recapitulate, the majority opinion in
my view ignores the plain meaning and
usual import of the particular words of sec-
tion 21151 which are applicable to Mono
County's decision to grant the conditional
use permit to International. The opinion
cites legislative history and analogous feder-
al language which in fact negate rather than
support an expansive interpretation of sec-
tion 21151. The opinion relies on general
declarations of legislative policy at the be-
ginning of the EQA which simply are not
effectuated in section 21151 in the manner
urged. I, as well as the majority, am con-
scious of the profound need to improve and
maintain the quality of California's environ-
ment (see, e. g., People ex rel. Younger v.
County of El Dorado (1971) 5 Cal.3d 480,
485-488, 491-494, 96 Cal.Rptr. 553, 487 P.2d
1193), but settled principles of statutory con-


Cal. 1075


61,. I








502 PACIFIC REPORTER, 2d SERIES


struction cannot be set aside by the judiciary
in order to achieve that high purpose.

I conclude that the action taken by the
Mono County Planning Commission and the
Mono County Board of Supervisors was
in all respects regular and lawful. The per-
tinent ordinance did not require said bodies
to make specific findings of fact in respect
to the issuance of the use permit. (Cf.
Schumm v. Board of Supervisors (1956)


140 Cal.App.2d 874, 878, 880-881, 295 P.2d
934.) The record discloses that the is-
suance of the permit was supported by sub-
stantial evidence and did not constitute an
abuse of discretion.

I would affirm the order.

Rehearing denied.

SULLIVAN, J., dissenting.


1076 Cal.


-~---'




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