People ex rel. San Francisco Bay Conservation & Development Commission v. Gianulias

White Slough, a tributary of the Napa River, was originally a tidal waterway connected to San Francisco Bay (Bay). In the late part of the last century, lands once within White Slough—including most of the lands at issue in this action—were reclaimed with the construction of a series of dikes and were no longer subject to the Bay’s tidal action. A narrow strip of White Slough, which now meanders through part of the area, remained open and affected by tides. In 1965, when the Legislature created BCDC in the McAteer-Petris Act (see § 66650) and in 1970 when the Legislature extended its jurisdiction to include the Napa River (see § 66610, subd. (e) [added Stats. 1970, ch. 1279, § 1, p. 2313]), the lands at issue—except for the narrow strip of White Slough—did not fall within BCDC jurisdiction.

Between 1976 and 1978, natural conditions caused levee failures along the Napa River. As a result, much of the subject lands became inundated and were subject to tidal action once again—a situation that continues to exist today. The dikes have not been repaired and most of the subject lands have been subject to tidal action since 1978.

In July 1980, respondent San Francisco Bay Conservation and Development Commission (BCDC) learned that appellant George Gianulias and his company, appellant Revolting Development, Inc., were filling the subject lands near White Slough, in Vallejo, Solano County. The property is alleged to be within BCDC jurisdiction and no one had acquired the necessary permit for this activity. BCDC’s acting director issued a cease and desist order in August 1980, commanding Gianulias to stop filling and grading activities near the shoreline at the site. On November 4, 1980, Gianulias agreed to be bound by the order.

On November 13, 18, and 20, 1980, BCDC staff members observed violations of the cease and desist order. When one staff member attempted to

In August 1981, appellants City of Vallejo and the Vallejo Sanitation and Flood Control District moved to intervene in the action. Before the levee failures in 1976-1978, the District had constructed a major interceptor sewer under a portion of the now-flooded property. The District has a statutory duty to maintain this sewer. The City is interested in the outcome of this action because, if BCDC must approve any development on this site, the City’s own development plans may be disrupted. The motion was granted and a complaint in intervention was filed in September 1981. The venue of the action was then transferred from Solano to Napa County. All four appellants argued at trial that the subject lands were not within BCDC jurisdiction.

Armed with declarations from its staff members of Gianulias’s continuous violations of the preliminary injunction, BCDC filed an order to show cause for contempt in March 1982. At the contempt hearing, BCDC presented evidence of numerous violations of the injunction over a two-and-a-half-year-period—both filling and grading of fill within 100 feet of the shoreline. Gianulias denied that he, or anyone at his direction, had placed any fill or graded within 100 feet of the shoreline.^[2]

The trial court found that the subject lands were within BCDC jurisdiction. Gianulias was cited for contempt and ordered to pay a $500 fine for it; he was also ordered to pay $ 12,000 in civil penalties pursuant to the original complaint. Gianulias, Revolting Development, the City, and the District filed timely notices of appeal from the judgment.

The appellants’ main contention is that the subject property is not within BCDC jurisdiction, The trial court found that the site was within BCDC jurisdiction as it was “subject to tidal action” within the meaning of

Nevertheless, the appellants argue that because the subject lands were not subject to tidal action in 1965 when the Legislature established BCDC, it has no jurisdiction over the subject lands. In essence, they would freeze the jurisdictional boundaries of BCDC to coincide with the contours of the San Francisco Bay in 1965.

This is not a realistic interpretation. The Bay is an interconnected, unitary water system. Under the appellants’ construction of BCDC jurisdiction, integral parts of the Bay, indistinguishable from other parts, would fall outside BCDC jurisdiction, to the detriment of the entire bay region. (See § 66600.) The appellants’ interpretation of BCDC jurisdiction could lead to piecemeal filling of the Bay and its attendant threat to the entire Bay region —problems that BCDC was established to prevent. (See §§ 66600, 66601.) To adopt the appellants’ argument would be to ignore the dynamics of a naturally changing water system.^[3]

III. Legislative Intent

The appellants also contend that the Legislature did not intend to include within BCDC jurisdiction lands that have been by time and cir

When the Legislature defined BCDC jurisdiction in section 66610 as encompassing lands “subject to tidal action,” it did not define the exact meaning of this language. (Blumenfeld v. San Francisco Bay Conservation etc. Com., supra, 43 Cal.App.3d at p. 55.) We construe the section to effectuate the purposes of the McAteer-Petris Act (Act). (Id., at p. 56.) The Act provides that piecemeal filling of the Bay may have serious effects (§ 66601) and that changes affecting one part of the Bay may also affect all other parts (§ 66600). These specific policies, combined with the overall object of the Act—to regulate conservation and development of the bay as a natural resource—support a broad interpretation of the jurisdictional language “subject to tidal action.” (Id., at pp. 56-58.)

The appellants also contend that BCDC has illegally extended its jurisdiction by administrative regulation.^[4] Again, the trial court’s findings contradict the appellants’ contentions. The trial court stated that BCDC jurisdiction “is described solely in § 66610.” Finding regulation section 10132— defining the term “subject to tidal action”—to be consistent with section 66610, it gave great weight to the regulation. The regulation was deemed an interpretation of the jurisdictional statute, not an extension of jurisdiction.

Regulation section 10132 interprets “subject to tidal action” in a manner consistent with section 66610. (Blumenfeld v. San Francisco Bay Conserva