(Mendocino County Super. Ct. No. SCUKCVPO08-51671) Leonard LaCasse, Judge.
The opinion of the court was delivered by: Pollak, Acting P.J.
CERTIFIED FOR PUBLICATION
Plaintiff Gualala Festivals Committee (the Festivals Committee) appeals from a judgment denying its petition for a writ of mandate seeking to set aside a cease-and-desist order entered by the California Coastal Commission (the Commission). The Commission's order prohibits the Festivals Committee from discharging fireworks over the Gualala River estuary without first obtaining a coastal development permit. The Festivals Committee contends the trial court erred in upholding the Commission's determination that a permit is required because the fireworks display is a development within the meaning of the California Coastal Act of 1976 (Pub. Res. Code,*fn1 § 30000 et seq.) (the Act). Although such a display may not be a "development" in the ordinary sense of the word, the Commission's interpretation conforms both with the expansive statutory definition of the term and the purpose of the statute. Hence we shall affirm the trial court's judgment upholding the Commission's action.
Factual and Procedural History
The Festivals Committee is an association of business and property owners in Gualala that sponsors community events, including Gualala Patriot Days over the Fourth of July weekend. In 2006, the Festivals Committee added a 15-minute fireworks display to the Patriot Days event. The fireworks were launched from private property situated near the Gualala River estuary and Gualala Point Island. Following the 2006 display, the Commission received telephone complaints that the fireworks had disturbed seabirds nesting on Gualala Point Island.
On June 13, 2007, the Commission wrote a letter to the Festivals Committee stating, "It has come to the attention of Coastal Commission staff that the Gualala Festivals Committee... is planning a fireworks display scheduled to take place on July 6, 2007 at 9:15 p.m. We understand that the proposed fireworks would be launched from within, or partially within, the public access easement held by the Redwood Coast Land Conservancy... and would detonate over the Gualala River estuary. [¶] Commission staff believes that (1) launching fireworks from within the public access easement is inconsistent with the terms and conditions of the easement, (2) the proposed fireworks display above the Gualala River estuary is a form of `development' as defined by the Coastal Act section 30106 and requires a coastal development permit, and (3) the proposed fireworks display does not qualify as a temporary event exempt from permit requirements because of its potential for adverse impacts to coastal resources." The Commission elaborated on the environmental concerns posed by the fireworks display. "The site of the proposed fireworks display is located approximately one mile from Gualala Point Island which provides nesting and roosting habitat for a variety of seabirds. We understand that a similar fireworks display conducted in 2006 over the Gualala River estuary without the benefit of a coastal development permit resulted in documented disturbance of seabird roosts and rookeries, including observed nest abandonment by several bird species. The Gualala River estuary also provides harbor seal haul-out sites as well as habitat for other marine mammals. Therefore, because the proposed fireworks display would be located in close proximity to known environmentally sensitive habitat areas... and has potential for significant adverse impacts..., the Executive Director has determined that the proposed temporary event is not excluded from [the coastal development permit] requirements."
In response, the Festivals Committee assured the Commission that the fireworks display would not be launched from the public easement, and public access to the easement would not be blocked during the fireworks display. The Festivals Committee disputed the Commission's claim that its firework display is a "development" within the meaning of the Act and questioned whether there was any evidence of the alleged disturbance of seabird roosts and rookeries. The Commission advised the Festivals Committee that in light of its assurance that the public easement would not be blocked during the display, the Commission would not issue a cease-and-desist order with respect to the 2007 fireworks display. The Commission explained, however, that it considered the fireworks display a development that required a permit and that if the Festivals Committee intended to conduct a similar display the following year a permit application should be filed no later than February 2008. The Commission warned that by not obtaining a permit, the Festivals Committee would be proceeding at its own risk should the fireworks display result in nest abandonment and mortality of seabirds. The Festivals Committee was advised that the federal Bureau of Land Management would be implementing a monitoring protocol to determine whether the 2007 display adversely impacts the nesting seabirds.
On February 12, 2008, the Bureau of Land Management and the federal Fish and Wildlife Service issued a report entitled "Seabird and Marine Mammal Monitoring and Response to a Fireworks Display at Gualala Point Island, Sonoma County, California, May to August 2007." The report documents "a visible response by nesting seabird on Gualala Point Island. Digiscoped and infra-red photography during the 6 July fireworks display showed that Brant's Cormorants quickly changed from resting to erect postures at the first fireworks, followed by birds moving about or departing from the island.... During the study period, 90 Brant's Cormorant nests were documented on Gualala Point Island. Of these, seven nests (35% of nest failures) were abandoned in the two days between 5 and 7 July, and another seven nests were abandoned between 7 and 12 July. Those losses contrast with the abandonment of only six nests (30% of nest failures) for the 30-day period from 5 June to 5 July." The report concludes that the high rate of Brant's Cormorants nest abandonments "likely resulted from fireworks disturbance."
On May 28, 2008, the Commission was notified that the Festivals Committee was planning another fireworks display during the Fourth of July weekend. On April 1, the Commission notified the Festivals Committee of its intent to issue a cease-and-desist order prohibiting it from conducting any unpermitted development within its jurisdiction, including the proposed fireworks display. A hearing on the proposed cease-and-desist order was set before the Commission for June 11, 2008.
On May 29, 2008, the Festivals Committee initiated the present action against the Commission and Peter Douglas, in his capacity as the Executive Director of the Commission, by filing a complaint for declaratory and injunctive relief seeking to prohibit the Commission from issuing the proposed order. At the June 11 hearing, the Commission asserted jurisdiction over the fireworks display and issued a cease-and- desist order prohibiting the Festivals Committee "from undertaking or threatening to undertake development without the necessary coastal development permit, including but not limited to, conducting a fireworks display over the Gualala River estuary." Thereafter, the Festivals Committee filed an amended complaint for declaratory relief and petition for writ of administrative mandate challenging the Commission's jurisdiction over the fireworks display. On May 11, 2009, the trial court denied the Festivals Committee's writ petition and on June 1 entered judgment in favor of the Commission. The court held that the proposed fireworks display is a "development" within the meaning of the Act and that the Commission, therefore, had jurisdiction to require a permit and to issue the cease-and-desist order. The court also found that substantial evidence supports the Commission's findings that (1) the 2007 fireworks display resulted in the closure of a public access trail during the time that it was to remain open; (2) the 2007 fireworks display resulted in placement of debris on the areas of the public easement that remained after the conclusion of the display; and (3) the 2007 fireworks display had adverse impacts on nesting seabirds. The Festivals Committee filed a timely notice of appeal.
Section 30600, subdivision (a) of the Act provides: "Except as provided in subdivision (e), and in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, any person... wishing to perform or undertake any development in the coastal zone,... shall obtain a coastal development permit." (Italics added.) Section 30106 of the Act defines "development" as follows: " `Development' means, on land, in or under water, the placement or erection of any solid material or structure; discharge or disposal of any dredged material or of any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, mining, or extraction of any materials; change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act (commencing with Section 66410 of the Government Code), and any other division of land, including lot splits, except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use; change in the intensity of use of water, or of access thereto; construction, reconstruction, demolition, or alteration of the size of any structure, including any facility of any private, public, or municipal utility; and the removal or harvesting of major vegetation other than for agricultural purposes, kelp harvesting, and timber operations which are in accordance with a timber harvesting plan submitted pursuant to the provisions of the Z'berg-Nejedly Forest Practice Act of 1973 (commencing with Section 4511). [¶] As used in this section, `structure' includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line." The parties agree that the scope of the Commission's jurisdiction turns on the proper interpretation of "development" as defined in the Act.
"When jurisdiction involves the interpretation of a statute, the issue of whether an agency acted in excess of its jurisdiction is a question of law reviewed de novo on appeal. [Citations.] Moreover, courts do not defer to an agency's determination when deciding whether the agency's action lies within the scope of authority delegated to it by the Legislature." (Burke v. California Coastal Com. (2008) 168 Cal.App.4th 1098, 1106.) Nonetheless, although final responsibility for interpreting the statute resides in the courts, the agency's interpretation of its governing statute is entitled to "great weight." (La Fe, Inc. v. County of Los Angeles (1999) 73 Cal.App.4th 231, 240; Coronado Yacht Club v. California Coastal Com. (1993) 13 Cal.App.4th 860, 868.)
"When we interpret the meaning of statutes, our fundamental task is to ascertain the aim and goal of the lawmakers so as to effectuate the purpose of the statute. We begin by examining the statutory language, giving the words their usual and ordinary meaning. If we find no ambiguity, we presume that the lawmakers meant what they said, and the plain meaning of the language governs. [Citation.] If, on the other hand, the statutory language is unclear or ambiguous and permits more than one reasonable interpretation, we may consider various extrinsic aids to help us ascertain the lawmakers' intent, including legislative history, public policy, settled rules of statutory construction, and an examination of the evils to be remedied and the legislative scheme encompassing the statute in question. [Citation.] In such circumstances, we must select the construction that comports most closely with the aim and goal of the Legislature to promote rather than defeat the statute['] s general purpose and avoid an interpretation that would lead to absurd and unintended consequences. [Citation.] ...