Opinion
Page __
__ Cal.App.2d __ 281 P.2d 59 STATE LANDS COMMISSION OF THE STATE OF CALIFORNIA and the Executive Officer of the State Lands Commission of the State of California, Petitioners, v. The SUPERIOR COURT of the State of California in and for the COUNTY OF SACRAMENTO, Respondent. Civ. No. 8779. California Court of Appeals, Third District March 21, 1955Rehearing Denied April 13, 1955.
Dismissed Sept. 1, 1955.
[281 P.2d 60] Attorney General by George G. Grover, Deputy Atty. Gen., for petitioner.
Hill, Farrer & Burrill, Los Angeles, Price, Postel & Parma, Santa Barbara, for real party in interest.
PEEK, Justice.
This controversy arises out of the following matters: The petitioner, hereinafter referred to as the Commission, found that certain State-owned tide and submerged lands located near Rincon in Ventura County, were known to, or were being drained of oil and might be, or were being drained of oil by means of wells upon adjacent land. It thereupon invited bids for an oil and gas lease of said lands, and accepted a bid submitted by Richfield Oil Corporation, a corporation, hereinafter referred to as Richfield, which, among other things, stated it proposed to drill from artificial islands erected on said submerged lands. Thereafter one Hugh B. Martin, hereinafter referred to as real party, filed his petition for a writ of mandate in the Sacramento County Superior Court, and said court issued its alternative writ. Shortly thereafter, this proceeding in prohibition was instituted by the Commission. A similar action was instituted by Richfield, and alternative writs of prohibition were thereupon issued by this court.
The contentions of real party raised here are the same as those he raised in the respondent superior court and before the Commission at the meeting at which the Richfield bid was accepted, and are (1) that the words 'filled lands' as used in section 6873(a) of the Public Resources Code, do not authorize drilling for oil from artificial islands as provided in said proposed lease; (2) that said code section [281 P.2d 61] does not authorize said lease for the further reason that the operation under the same would pollute and contaminate the tidal waters, thereby interfering with bathing, fishing and navigation; and, (3) would impair receational and residential use of the beaches.
It is the contention of petitioner in the matter now before this court that the mandamus proceeding in the superior court is wholly without the jurisdiction of that court since it can take no action under the law other than to discharge the alternative writ it previously issued and dismiss the proceeding for the reasons that (1) the so-called 'islands' constitute filled lands within the meaning of the Public Resources Code, and (2) that real party's contentions that such islands will substantially interfere with navigation and fishing, and will result in pollution of the beaches, are prophecies only, and since the lease contains provisions against the occurrence of such nuisances, any attempt to litigate the question of nuisance is premature.
By the provisions of section 6872 of the Public Resources Code, the circumstances which authorize the Commission to lease such lands for drilling are as follows:
'Whenever it appears to the commission that oil or gas deposits are known or believed to be contained in any such lands and may be or are being drained by means of wells upon adjacent lands, the commission shall thereupon be authorized and empowered to lease any such lands * * *.'
Section 6873 provides the form of lease and sets out the conditions which the lease must contain and which govern the manner in which the drilling shall be conducted. Specifically it requires that each well drilled under a lease
'[S]hall be drilled only upon filled lands shall be slant drilled from an upland or littoral drill site to and into the subsurface of the tide or submerged lands covered by the lease, or shall be drilled or slant drilled to and into the subsurface of tide or submerged lands covered by the lease, from a drill site located upon any pier heretofore constructed for drilling purposes and available for such drilling upon any tide or submerged lands described in any valid existing lease heretofore issued * * *. The derricks, machinery, and any and all other surface structures, equipment, and appliances shall be located only upon filled lands or upon the littoral lands or uplands, or upon any pier heretofore constructed and available for such drilling upon any tide or submerged lands described in any valid existing lease * * *.'
Additionally that section expressly declares that, 'Pollution and contamination of the ocean and tidelands and all impairment of and interference with bathing, fishing or navigation * * *' is prohibited as is likewise prohibited any 'impairment of or interference with developed shore line recreational areas or residential areas * * *.'
It is thus apparent from the wording of said statute that the Commission has no general power to permit offshore drilling nor to permit drilling in submerged lands or tidelands merely for the purpose of producing oil. Before it may advertise for a lease, it must find that oil is, or may be, found in the area proposed to be leased; and additionally, it must find that such oil is being, or may be, drained by other wells. However, if it does find such conditions to exist, it still has only limited powers as to the drilling which it may permit to be done under its lease. It can permit slant drilling from littoral lands or uplands. It can permit drilling from a pier already constructed for drilling purposes, but apparently it cannot authorize the construction of a new pier for drilling purposes. It can permit drilling from a site located on 'filled lands'.
Turning to the first contention by real party, that the statute does not authorize a lease whereunder the lessee proposes to drill from an artificial, man-made island, we find that a like contention was advanced in the case of Monterey Oil Co. v. City Court, 120 Cal.App.2d 31, 260 P.2d 846, 850. In that case prohibition was sought to restrain the City of Seal Beach [281 P.2d 62] from prosecuting the oil company for asserted violation of a local ordinance prohibiting the drilling for oil within the city limits. In the course of its opinion the court there said:
'[T]he commission determined herein that the best interests of the state would be served by the drilling of a well or wells from filled lands to be located in the tidelands approximately one and one-half miles, more or less, distant from the shore and at a site to be approved by the War Department. We have no hesitancy in holding that the operations being conducted by the appellant herein [lessee] are upon an 'island' which constitutes filled lands within the purview of the statute.'
Real party claims that the foregoing is dictum. But at least it is 'judicial dictum' as distinguished from obiter since the record of the case shows that the point was presented, argued and expressly passed upon. See People's Lumber Co. v. Gillard, 5 Cal.App. 435, 90 P. 556.
Here it should be noted that the Attorney General, on two occasions, has advised the Commission that artificially constructed islands constitute 'filled lands' within the meaning of section 6873, and the Commission has followed and applied that interpretation. By so acting, it has posed the further rule that administrative interpretation is entitled to great weight and will be upheld unless palpably erroneous. Shealor v. City of Lodi, 23 Cal.2d 647, 145 P.2d 574; People v. Southern Pac. Co., 209 Cal. 578, 290 P. 25.
Furthermore it would appear that under ordinary rules of construction the language of the statute must mean that by specifically limiting drilling to piers already constructed for that purpose, and by placing no restriction upon filled lands, whether filled prior to the adoption of the section or to be thereafter filled, the Legislature has indicated it placed no such limitations upon filled lands as were placed upon pier sites. It also appears that the Legislature, in permitting drilling from 'filled lands', did not require that such lands be only those already existing and hence impliedly permitted filling of lands for drill site purposes.
In answer to the objections of real party based upon the charge of pollution and interference with navigation and fisheries, petitioner argues that these matters are mere prophecies and become material only if and when the islands have been constructed and do, in fact, pollute or impair. In the leading case of Boone v. Kingsbury, 206 Cal. 148, at page 183, 273 P. 797, at page 812, the court said:
'With full knowledge of the subject, the legislature found that there was nothing in the drilling and operation of oil wells conducted in the manner provided by the statute that would substantially impair the paramount public interest in the lands and water remaining, and upon a consideration of the case we find nothing that would justify us in holding that the finding of the Legislature, which is conclusive in such matters (People v. California Fish Co., 166 Cal. 576, 138 P. 79), is not fully supported by the facts. To justify an interference by courts with the right of the Legislature to alienate tide or submerged lands it must appear that such grants do or will impair the power of succeeding Legislatures to regulate, protect, improve, or develop the public rights of navigation and fishing. City of Oakland v. Oakland Water Front Co., 118 Cal. 160, 50 P. 277. It cannot be seen that the legislation in the instant case will embarrass immediate or remote legislation.'
It should be further noted that the act under consideration in the Boone case reserved for the State, as does the Public Resources Code, supervisory control over the operation under the lease there involved, and the court in that case also held:
'The words of the Constitution are to be considered as incorporated in the grant or patent (granting tide lands) the same as if inserted therein. They become a part of it and qualify it, so [281 P.2d 63] that the estate granted is limited to the permitted uses.' Forestier v. Johnson, 164 Cal. 24, 127 P. 156. So, in the instant case, should said permittees offer any substantial interference incompatible with navigation, fishing, or commerce, the state and federal government would have the unquestionable right to abate it.' 206 Cal. at page 184, 273 P. at page 813.
The contention of real party in this regard is noted in the opening brief of Richfield in action number 8780, Richfield Oil Corp. v. Superior Court, Cal.App., 281 P.2d 64, with this pertinent comment: 'The vice of real party's position lies in the fact that, should he obtain the relief which he seeks [in his mandate action], the State's power would be hamstrung even if his prophecies should ultimately turn out to be wrong.' Additionally, under the provisions of Section 403 of Title 33, U.S.C.A., Congress has conferred power upon the U. S. Army Engineers to determine whether or not that which is proposed to be done in navigable waters under the jurisdiction of the United States will or will not obstruct navigation. And here the record shows that the approval or permit of the Army Engineers has been provided for.
For the reasons heretofore set forth, we conclude as did the court in the Monterey Oil Co. case that the artificial islands constructed as proposed by Richfield come within the meaning of 'filled lands' as those words are used in the code sections; and that the Commission has properly exercised its delegated duties to protect and conserve the oil resources of the State. Although the provisions of the statute are couched in permissive terms, yet when the purpose of the legislation is considered it is clear that when the Commission has determined that conditions exist which warrant leasing, it is then charged with the duty to lease in order that loss to the State be avoided.
It is conceded that the proceeding in the respondent court does not come within the purview of section 1094.5 of the Code of Civil Procedure, but, to the contrary, is the traditional mandamus proceeding sought as against an administrative board. Therefore to warrant issuance of its writ by the respondent court, the petitioner in mandate there (the real party here) was under the necessity of showing either that the Commission had erred in law, had clearly abused its discretion or had acted clearly in excess of its jurisdiction. 2 Cal.Jur.2d 359, Sec. 219.
As noted by petitioner here, without any showing of error of law, abuse of discretion or act in excess of jurisdiction on the part of the Commission, the respondent court has, by virtue of the restraint provisions contained in its alternative writ of mandate, tied the hands of the Commission as regards its statutory duty of leasing tide and submerged lands to prevent drainage therefrom. The result then is precisely as if, without cause, the respondent court had enjoined the Commission from carrying out its statutory duty. It is well settled that in such a case prohibition will lie, and that an appeal is not an adequate remedy.
In the case of Reclamation District No. 1500 v. Superior Court, 171 Cal. 672, 154 P. 845, 846, the court had under consideration a statute creating a reclamation district upon which was imposed the 'duty * * * to construct a levee'. An action was instituted to restrain the building of the levee, and the superior court granted a temporary injunction restraining the construction activities of the district. Following a petition to the Supreme Court, a writ of prohibition was issued, and in its opinion that court pointed out that since the statute was constitutional, the performance by the district of its statutory duty could not be enjoined. Specifically, the court held:
'It is true that in the case at bar the petitioner might by appeal review the correctness of any judgment or order enjoining it, but we do not think that such appeal would, under the circumstances here described, be an adequate remedy. Glide v. Superior Court, 147 Cal. 21, 81 P. 225. To say nothing of the burden and expense of a trial of issues which, as we have seen, are not properly triable in the [281 P.2d 64] superior court, it may be observed that the preliminary injunction already issued ties the hands of the petitioner, and that an appeal from such injunction would not affect its operative force pending the appeal. If the petitioner is entitled to proceed with the work of building the levees which the statute commands it to build, an appeal would obviously not give adequate relief.' 171 Cal. at page 683, 154 P. at page 850.
Again in the leading case of Abelleira v. District Court, 17 Cal.2d 280, 109 P.2d 942, 947, 132 A.L.R. 715, the Supreme Court pointed out the distinction between lack of jurisdiction in its most strict or fundamental sense (absence of power to hear or determine the case or an absence of authority over the subject matter or the parties), and the lack of jurisdiction or power to act except in a certain manner or to give certain kinds of relief--the lack of jurisdiction petitioner here asserts with reference to the respondent superior court. In that case the court held that,
'[I]n its ordinary usage the phrase 'lack of jurisdiction' is not limited to these fundamental situations. For the purpose of determining the right to review by certiorari, restraint by prohibition, or dismissal of an action, a much broader meaning is recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural pre-requisites.' See also Rescue Army v. Municipal Court, 28 Cal.2d 460, 171 P.2d 8.
Therefore, said the court
'The writ of prohibition is not refused nor held in abeyance because the lower tribunal may ultimately realize the error of its assumption of jurisdiction; it is granted at the time the act in excess of jurisdiction occurs.' 17 Cal.2d at page 304, 109 P.2d at page 955.
Since in the instant case the Commission has found that existing conditions are such that a lease ought to be given to prevent loss to the State, and since artificial filled land islands constitute filled lands within the meaning of section 6873 of the Public Resources Code, and since the Commission has followed all of the requisite statutory provisions, and in the language of the statute has provided for the very contingencies which real party asserts may come to pass, it necessarily follows that prohibition will lie to prohibit further action in the mandamus proceeding now pending in the respondent court.
By reason of what has heretofore been said, we deem it unnecessary to discuss any of the remaining matters raised by the parties.
The writ will issue.
VAN DYKE, P. J., and SCHOTTKY, J., concur.