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Butte Equipment Rentals, Inc v. California Air Resources Board et al

March 23, 2011

BUTTE EQUIPMENT RENTALS, INC., PLAINTIFF AND APPELLANT,
v.
CALIFORNIA AIR RESOURCES BOARD ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. Nos. PC20030168 & PC20010457)

The opinion of the court was delivered by: Blease , Acting P. J.

Butte Equipment Rentals v. Cal. Air Resources Bd.

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is a case that purports to raise issues whether the plaintiff suffered an unconstitutional regulatory taking of its property pursuant to Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [57 L.Ed.2d 631, 648] and its progeny. It does not.

Plaintiff Butte Equipment Rentals, Inc. (Butte Equipment), the owner of the Bear Creek Quarry in El Dorado County, appeals from a summary judgment granted the defendant California Air Resources Board (ARB) in consolidated actions challenging whether the ARB's regulation of the quarrying and sale of rock containing asbestos constitutes a regulatory taking of Butte Equipment's property interest in the rock.

The case concerns two regulations enacted by the ARB, the purpose of which is to prevent the release of asbestos fibers into the air. The regulations were adopted pursuant to the Tanner Act, which provides for the identification and regulation of toxic air contaminants by airborne toxic control measures. (Health & Saf. Code, §§ 39650-39669.) The first regulation prohibits the sale of rock containing 0.25 percent (the minimum detectable level) or more asbestos for use for surfacing applications, such as unpaved roads, over which pedestrians or vehicles traverse causing the emission of dust containing asbestos fibers into the air. (Cal. Code Regs., tit. 17, § 93106.)*fn1 The second regulation requires the suppression of dust from the quarrying of the rock. (Id., tit. 17, § 93105.)

In an earlier opinion we upheld section 93106 against the claim that it violated its authorizing legislation, the Tanner Act. (Coalition for Reasonable Regulation of Naturally Occurring Substances v. California Air Resources Board (2004) 122 Cal.App.4th 1249 (Coalition).) We also upheld the ARB's finding that "there is no threshold level of exposure of asbestos below which no significant adverse health effects are anticipated and this means there is no safe level of exposure of human beings to airborne asbestos fibers. (Regs., § 93000.)" (Id. at p. 1260.)

The plaintiff argued below that it suffered a complete taking of its right to sell rock for surfacing applications, notwithstanding it was permitted to sell rock for other, unregulated uses, and that, at some undisclosed time in the future, it will suffer a complete taking of its right to mine, in the form of a shutdown order for failure to comply with the dust control regulation.

The trial court granted the ARB's motion for summary judgment on two grounds. First, the regulations are a valid exercise of the police power and their effect on plaintiff's property does not constitute a taking. Second, Butte Equipment failed to support its opposition to the ARB's Statement of Undisputed Facts with evidence, justifying the exercise of the court's discretion to grant the motion. (§ 437c, subd. (b)(3).)

On appeal Butte Equipment does not address either ground of decision, which we shall affirm.

The Coalition opinion cut the ground from under Butte Equipment's claim that section 93106 violated the Tanner Act. Abandoning that argument on appeal it collaterally attacks both regulations on the ground they lack a scientific basis showing that asbestos fibers are toxic to human beings. It relies on documents from the Federal Register that were not tendered in the administrative hearing preceding adoption of the regulations and are not properly before us. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19.)

That left Butte Equipment with the claim that the dust control regulation worked a taking of its property because it was impossible to comply with it and profitably mine the rock. However, Butte Equipment has a dust control plan approved by the agency that enforces the regulation and has been operating the mine, thereby forfeiting the claim. Its allied claim that the approved plan did not comply with section 93105, thereby subjecting it to a future enforcement action shutting down the mine, is wholly speculative. In the four years from May 24, 2004, when the approval was granted, to the decision of the trial court, June 27, 2008, no such action occurred.

Sensing the terminal weakness of its substantive arguments, Butte Equipment focused its opening brief on procedural claims, that the trial court violated the summary judgment statute by permitting the ARB to file a second summary judgment motion after loss of the first (§ 437c, subd. (f)(2)), by permitting the ARB to file an untimely addendum to its papers in support of its summary judgment (§ 437c, subd. (a)), and by failing to specify the evidence supporting the order granting the motion (§ 437c, subd. (g)). The arguments border on the frivolous.

First, Butte Equipment stipulated to a second summary judgment motion in exchange for amending its complaints to substitute the correct plaintiff,*fn2 thereby waiving the claim. Second, the impact of the addendum on the grant of summary judgment was de minimus. As here, a motion for summary judgment may be granted the moving party on the basis of the papers it has timely submitted if they show that the party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) The papers timely submitted, including the ARB's Statement of Undisputed Facts and supporting evidence, to which Butte Equipment did not respond, show that the ARB was entitled to a summary judgment as a matter of law. Third, although section 437c, subdivision (g) requires the specification of evidence supporting the granting of a summary judgment, the failure in this case is not a ground for overturning the judgment.

We shall affirm the judgment.

FACTS AND PROCEDURE

Butte Equipment is a corporation owned by Boyd Sears. It mines and sells rock from the Bear Creek Quarry in El Dorado County. The quarry is located in an ultramafic rock zone containing serpentine rock which contains asbestos and therefore is subject to the asbestos regulations issued by the ARB.

This case began as an administrative challenge to the dust control regulation, section 93105. When that failed, on April 1, 2003, Boyd Sears, as the alleged owner of the Bear Creek Quarry, filed a petition for administrative mandate (Code Civ. Proc., § 1085) seeking to rescind section 93105 on the grounds the ARB had insufficient scientific evidence to adopt the regulation and failed to follow the procedures of the Tanner Act. It relied on documents excerpted from the Federal Register that were alluded to but were not tendered as evidence in the administrative proceeding and are not properly before us. (See Hensler v. City of Glendale, supra, 8 Cal.4th at p. 19.) They were tendered as part of the record before the superior court.

The petition for extraordinary relief was accompanied by a complaint for declaratory and injunctive relief. The claim for writ relief was denied on August 5, 2004, and a statement of decision was filed on November 24, 2004. The court found that "section 93105 . . . is supported by substantial evidence, and was reasonably necessary to implement the purposes of the statute. Having so found, there is no basis for invalidating the regulation."

A second petition was filed by Boyd Sears challenging the adoption of section 93106 by the ARB. The record does not contain a copy of the initial pleading but does contain a copy of the second amended petition for writ of mandate. The record also contains Butte Equipment's motion, filed June 3, 2005, to consolidate the two actions. The motion was not opposed by the ARB and it was granted on July 21, 2005.

The ARB filed a first motion for summary judgment in the consolidated actions, together with a Statement of Undisputed Facts, on January 27, 2006. Boyd Sears, then listed as plaintiff, responded with a separate Statement in Opposition to defendant's motion for summary judgment. It consists mainly of legal argument contained in a deposition filed by Boyd Sears. The motion for summary judgment was denied on March 28, 2007, for failure of the ARB to support its claims with facts. The court said: "It is apparent that the regulations have had some economic impact amounting to less than a total taking under Lucas [v. South Carolina Coastal Council (1992) 505 U.S. 1003 [120 L.Ed.2d 798].]. There is no evidence from which the Court can apply the fact-driven analysis of Penn Central [Transp. Co. v. New York City, supra, 438 U.S. 104 [57 L.Ed.2d 631]] and make any determination of the economic impact of the regulations on [Butte Equipment's] property. Because defendants have the burden of ...


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