Filed 4/23/13 (unmodified opn. attached)
                                    CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                           DIVISION SIX


FRIENDS OF OCEANO DUNES, INC.,                           2d Civil No. B248814
                                                      (Super. Ct. No. CV120013)
 Plaintiff and Appellant,                              (San Luis Obispo County)
                                                   MODIFICATION OF OPINION AND
v.                                                    DENIAL OF REHEARING
                                                        No Change in Judgment
SAN LUIS OBISPO COUNTY AIR
POLLUTION CONTROL DISTRICT et
al.,

 Defendants and Respondents.

THE COURT:
        It is ordered that the opinion filed herein on April 6, 2015, be modified as follows:
        1. On page 3 of the first full paragraph delete the words "regulate the operation of"
appearing at the end of the first sentence and insert the words "require a permit for." The
sentence will then read: At issue is whether District is statutorily authorized to require a
permit for the operation of the Oceano Dunes State Vehicular Recreational
Area . . . .
        2. On page 6, line one of the third paragraph, delete the words "precluded from
regulating" and insert therein "not statutorily authorized to impose a permit system." The
sentence will then read: Because air pollution control districts are not statutorily authorized
to impose a permit system on indirect sources . . . .
        3. On page 7, line 4 delete the words "then any local air pollution district" and insert
the words "by a permit system, then any local air pollution control district . . .
The sentence will then read: "If off-road recreational vehicles cause or exacerbate PM10
emissions and District can regulate them by a permit system, then any local air pollution
control district could control any recreational activity . . . .
       The Petition for Rehearing is denied.
       No change in judgment.
       CERTIFIED FOR PUBLICATION




                                                  2
Filed 4/6/15 (unmodified version)
                                    CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                           DIVISION SIX


FRIENDS OF OCEANO DUNES, INC.,                               2d Civil No. B248814
                                                          (Super. Ct. No. CV120013)
 Plaintiff and Appellant,                                  (San Luis Obispo County)

v.

SAN LUIS OBISPO COUNTY AIR
POLLUTION CONTROL DISTRICT et
al.,

 Defendants and Respondents.



                 Consistent with the laudable goal of safeguarding the public health, the trial
court "stretched" to find a dictionary definition of the word "contrivance" to describe a state
park. As Justice Oliver Wendall Holmes said: "A word is not a crystal, transparent and
unchanged; It is the skin of a living thought and may vary greatly in color and content
according to the circumstances and the time in which it is used." (See Almar Limited v
County of Ventura (1997) 56 Cal.App. 4th 105, 106.) This appeal "turns" on the meaning of
the word "contrivance." (Id., at p. 107.) Neither the trial court nor an appellate court is at
liberty to pick a dictionary definition to reach a desired result (See People v. Arno (1979)
90 Cal.App.3d 505, 514, fn.2.) As we shall explain, the time-honored rule of ejusdem
generis requires that in the context of construing Health and Safety Code section 42300
subdivision (a) a state park is not a "contrivance." Thus, the trial court erroneously ruled
that a local air pollution control district has the power to regulate air emissions emanating
from a state park by a permit requirement.
                Friends of Oceano Dunes, Inc., a California non-profit corporation and
voluntary association, appeals the dismissal of its writ of mandate petition (Code Civ. Proc.,
§ 1085) and complaint for declaratory/injunctive relief. Appellant contends that the San
Luis Obispo County Air Pollution Control District (District) exceeded its authority in
adopting rule 1001 of Regulation X, Fugitive Dust Emission Standards Limitation and
Prohibitions (Rule 1001), which requires that the California Department of Parks and
Recreation obtain an air emissions permit to operate the Oceano Dunes States Vehicular
Recreation Area. The trial court found that Health and Safety Code section 42300
subdivision (a) authorized District to impose a permit system to regulate sand and dust
emissions caused by off-road recreational vehicles using the state park.1
                                    Air Pollution Regulation
                Two statutory schemes regulate air quality in California: the Federal Clean Air
Act (42 U.S.C. §§ 7401 et seq.) and the California Clean Air Act (§§ 39000 et seq.). (See
California Bldg. Industry Assn. v. San Joaquin Valley Air Pollution Control Dist. (2009)
178 Cal.App.4th 120, 125.) Under the federal Clean Air Act, the Environmental Protection
Agency (EPA) sets national air quality standards for the maximum allowable concentration
of a given pollutant. (Ibid.) Each state has the primary responsibility for assuring air
quality within its geographic area. (Ibid.)
                Under the California Clean Air Act, the California Air Resources Board
(CARB) is charged with developing a state implementation plan to ensure compliance with
federal air quality standards. (§§ 39602; 41502-41505.) CARB is solely responsible for
vehicular sources of air pollution. (§39002.) Local and regional air pollution control
districts have the primary responsibility of controlling air pollution from all sources other
than vehicular sources. (Ibid.) Section 42300 subdivision (a) provides: "Every district
board may establish by regulation, a permit system that requires . . . that before any person
builds, erects, alters, replaces, operates, or uses any article, machine, equipment, or other




1   Unless otherwise stated, all statutory references are to the Health and Safety Code.


                                                2
contrivance which may cause the issuance of air contaminants, the person obtain a permit to
do so from the air pollution control officer of the district."
              At issue is whether District is statutorily authorized to regulate the operation
of the Oceano Dunes State Vehicular Recreational Area (SVRA), a 3,600 acre recreational
park consisting of natural beach and sand dunes. SVRA, formerly known as the Pismo
Dunes State Vehicular Area, was created in 1974 for dune buggies and off-road recreational
vehicles. (Sierra Club v. Department of Parks & Recreation (2012) 202 Cal.App.4th 735,
739.) Approximately 2,100 acres of the park are closed to motorized recreation and
managed as native habitat. The SVRA hosts 1.6 million visitors a year who camp, walk,
fish, surf, and operate off-road vehicles on the beach and sand dunes. Operation of the
SVRA is important to the state park system, to off-road recreational vehicle communities,
and to the local coastal economy.
                    Rule 1001 - Regulation of Dune Vehicle Activity Areas
              After research groups determined that the SVRA was a contributing factor to
elevated PM10 emissions, District conducted its own study and found that off-road
recreational vehicles de-vegetate and disturb the surface crust of sand dunes. 2 This
disturbance increases the ability of winds to blow sand and dust inland to Nipomo Mesa.
PM10 levels at Nipomo Mesa exceed state health standards approximately 65 days a year,
exposing residents to serious health risks. In response to the air emissions problem, District
adopted Rule 1001 (entitled "Coastal Dunes Dust Control Requirements") which applies to
any operator of a coastal dune vehicle activity area greater than 100 acres in size. Rule 1001
provides: "All facilities subject to this rule shall obtain a Permit to Operate from the Air
Pollution Control District . . . ." (Paragraph C, § 5.)




2 Under the federal Clean Air Act, the EPA has established national ambient air quality
standards and identified criteria pollutants that include course particulate matter (PM 10).
(See California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist.
(2009) 178 Cal.App.4th 1225, 1231-1232.) "Particulate matter (PM) refers to very small
solid or liquid particles that can be suspended in the atmosphere." (Id., at p. 1231.)


                                                3
                                      Trial Court Ruling
              Appellant filed a petition for traditional writ of mandate and complaint for
injunctive/declaratory relief alleging that Rule 1001 exceeds District's statutory authority.
California Department of Parks and Recreation (State Parks) was named as a real party in
interest. Denying the writ petition, the trial court concluded that section 42300 granted
District authority to treat the SVRA as a direct source of air pollution. The trial court found
that "a managed recreational facility is reasonably viewed as 'a contrivance' devised by man
-- i.e., -- not something that occurs naturally, which causes the emissions of airborne
particulate matter (sand and dust) from the dunes."
                                            Standing
              District argues that appellant lacks standing to prosecute the appeal because it
is not prejudicially affected by the judgment. "As a general rule, a party must be
'beneficially interested' to seek a writ of mandate. (Code Civ. Proc., § 1086.)" (Save the
Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165.) The
beneficial interest must be direct and substantial. (Id., at p. 166.) The trial court found that
appellant has a beneficial interest in the operation of the SVRA and standing to bring the
action. We concur. The continued operation of the SVRA directly affects appellant and its
members who have an interest in ensuring that District does not eliminate or restrict off-road
vehicle recreation.
              The "public interest" exception also confers standing where the question is one
of an important public right and the object of the action is to enforce a public duty. (Save
the Plastic Bag Coalition v City of Manhattan Beach, supra, 52 Cal.4th at p. 166 [corporate
plaintiff can have both public interest and beneficial interest standing where the challenged
rule has a severe and immediate effect on member's activities].) The interpretation and
scope of section 42300 is a matter of general public interest that affects a broad swath of
recreational park users and 35 air pollution control districts. (See e.g., Watershed Enforcers
v, Department of Water Resources (2010) 185 Cal.App.4th 969, 978.) Santa Barbara
County Air Pollution Control District, in its amicus brief, concedes that the appeal presents




                                                4
an important issue of statutory interpretation affecting the permit authority of all California
air pollution control districts.
                                       Standard of Review
               District argues that Rule 1001 is a quasi-legislative act entitled to great
deference by the court. (See American Coatings Assn. v. South Coast Air Quality
Management District (2012) 54 Cal.4th 446, 461.) Air pollution control districts have the
authority to "adopt and enforce rules and regulations to achieve state and federal ambient air
quality standards, in all areas affected by emission sources under their jurisdiction. . ." (§
40001, subd. (a).) Here the writ petition focuses on the narrow issue of whether Rule 1001
exceeds District's lawmaking authority. "[W]hen an implementing regulation is challenged
on the ground that it is 'in conflict with the statute' [citation] or does not 'lay within the
lawmaking authority delegated by the Legislature [citation], the issue of statutory
construction is a question of law on which a court exercises independent judgment.
[Citation.] In determining whether an agency has incorrectly interpreted the statute it
purports to implement, a court gives weight to the agency's construction. [Citation.] 'How
much weight . . . is "situational," and greater weight may be appropriate when an agency has
a ' "comparative interpretive advantage over the courts" ' as when " 'the legal text to be
interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact,
policy, and discretion.' " [Citation.]) 'Nevertheless, the proper interpretation of a statute is
ultimately the court's responsibility.' [Citation.]" (Western States Petroleum Assn. v. Board
of Equalization (2013) 57 Cal.4th 401, 415-416.)
                       Direct versus Indirect Sources of PM10 Emissions
               Section 42300, subdivision (a) provides that an air pollution control district
may require "that before any person builds, erects, alters, replaces, operates or uses any
article, machine, equipment, or other contrivance that may cause the issuance of air
contaminants, the person obtain a permit to do so from the air pollution control officer of the
district." "Person" includes any state or local governmental agency. (§ 39047, subd. (b).)
Before Rule 1001 was adopted, no air pollution control district has ever required that a state
park obtain a permit for the use of off-road recreational vehicles. The reason is


                                                 5
straightforward. Air pollution control districts are not statutorily authorized to regulate
motor vehicle emissions (§ 40000) or impose a permit system on indirect sources of air
pollution. (See 76 Ops. Cal. Atty. Gen. 11, 19 (1993).)
              Although the California Clean Air Act does not say what an "indirect source"
is, the federal Clean Air Act defines "indirect source" to mean "a facility, building, structure,
installation, real property, road, or highway which attracts, or may attract, mobile sources of
pollution. Such term includes parking lots, parking garages, and other facilities subject to
any measure for management of parking supply . . . . Direct emissions sources or facilities
at, within, or associated with, any indirect source shall not be deemed indirect sources. . . ."
(42 U.S.C. § 7410(a)(5)(C); see California Building Industry Assn. v. San Joaquin Valley
Air Pollution Control Dist. (2009) 178 Cal.App.4th 120, 126.) 3 An example would be a
sports facility or parking structure that attracts vehicles (i.e., a mobile source activity). (42
U.S.C. § 7410, subd. (a)(5)(C); see South Terminal Corp. v. Environmental Protection
Agency (1st. Cir, 1974) 504 F.2d 646, 668, fn. 24.)
              District's South County Phase 2 Particulate Study, which is the genesis for
Rule 1001, states that SVRA off-road vehicular activities are an indirect source of PM10
emissions: "Offroad vehicle activity on the dunes is known to cause de-vegetation,
destabilization of dune structure and destruction of the natural crust on the dune surface [].
All of these act to increase the ability of winds to entrain sand particles from the dunes and
carry them to the Mesa, which is an indirect emissions impact from the vehicles."
(Emphasis added.)
              Because air pollution control districts are precluded from regulating indirect
sources of PM10 emissions, District asserts on appeal that fugitive dust/sand from the
SVRA is a direct source emission. We reject this contention. The argument would be
plausible if a state park was operating a sand quarry or removing contaminated soil with

3 The California Air Regional Board defines "indirect source" as "any facility, building,
structure or installation, or combination that attracts mobile source activity that results in the
emissions of any pollutant for which there is a state ambient air quality standard."
(California Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist.,
supra, 178 Cal.App.4th at p. 137.)


                                                6
machinery. The Legislature has provided that those activities (a stationary source emitting
air pollutants) are subject to regulatory permits.4 (See e.g., § 42310.5 [asphalt plants];
§§ 42314.1, 42315 [facilities that burn municipal waste, landfill gas, or digester gas].) A
sand dune, however, is an inert mound of sand. If off-road recreational vehicles cause or
exacerbate PM10 emissions and District can regulate them, then any local air pollution
district could control any recreational activity that combines with any natural phenomenon
causing air pollution. This would include boats on a lake, motorcycles in a desert, and
snowmobiles in a forest.
                               Is a State Park a "Contrivance?"
              District argues that it has section 42300 regulatory power over the SVRA
because an "other contrivance" is any man-made improvement that is a direct source of air
emissions. "Contrivance" is commonly defined as a "mechanical device" or "an artificial
arrangement or development." (Webster's Collegiate Dictionary (10th ed. 1999), p. 252; see
Baugh v. Beatty (1949) 91 Cal.App.2d 786, 791 [using Webster's definition of
"contrivance"].) For purposes of statutory interpretation, the doctrine of ejusdem generis
applies. In Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1011-1012,
our California Supreme Court has defined this doctrine as follows: "[W]hen a statute
contains a list or catalogue of items, a court should determine the meaning of each by
reference to the others, giving preference to an interpretation that uniformly treats items
similar in nature and scope. [Citations.] In accordance with this principle of construction, a
court will adopt a restrictive meaning of a listed item if acceptance of a more [expansive]
meaning would make other items in the list unnecessary or redundant, or would otherwise
make the item markedly dissimilar to the other items in the list. [Citations.]" (Ibid.)



4 Section 42310 (which is referenced in section 42300, subdivision (a)) lists activities that
are exempt from air emissions regulatory permits: the operation of vehicles; structures
designed for and used exclusively as a dwelling for not more than four families; incinerators
used in connection with those structures, barbecue equipment not used for commercial
purposes, and repairs or maintenance not involving structural changes to any equipment for
which a permit has been granted.


                                               7
              Here the statutory list is "any article, machine, equipment, or other contrivance
which may cause the issuance of air contaminants." (§ 42300, subd. (a).) Under the rule of
ejusdem generis, the general term ["other contrivance"] is " 'restricted to those things that
are similar to those which are enumerated specifically.' [Citation.]" (Harris v. Capital
Growth Investors XIV (1991) 52 Cal.3d 1142, 1160, fn. 7; see Civ. Code, § 3534
["Particular expressions qualify those which are general."] "Other contrivance" refers to an
article, machine equipment or device that a person builds, erects, alters, replaces, operates,
or uses.
              District argues that the SVRA is a "contrivance" because it has gates, fences,
walking paths, access roads, signage, parking lots, and restrooms. But these improvements
to the dunes are not the cause of the emissions. They do not directly or indirectly cause
emissions and without them, off-road recreational vehicles would still go to the park. We
do not believe that a fence or sign designating the sand dunes as an off-road recreational
area makes the SVRA a "contrivance" or a direct source of air pollution. If the rule was
otherwise, District would have the authority to regulate the operation of any state park
simply because the park has as a fence, gate, sign, or parking lot.
              Pursuant to the ejusdem generis rule, the courts could reasonably construe the
word "contrivance" as e.g., any tool, implement, apparatus, device, appliance or mechanism.
They are "similar in nature and scope" with the words, "article, machine, equipment." The
objective reader should ask whether a state park is "similar in nature and scope" with the
words "article, machine, equipment." We borrow from Justice Holmes. A word, the skin of
a living thought, can be stretched only so far before a new color and content emerges. The
"circumstances" in which the word "contrivance" is used in section 42300 subdivision (a)
compel the conclusion that the Legislature did not contemplate that a "contrivance" would
include a state park.
              If District wants to add a state park to the section 42300 list, the remedy lies
with the Legislature. Rule 1001, as written, attempts to do indirectly what District cannot
do directly. We have no power to rewrite section 42300 or, under the guise of construction,
read into the statute something the Legislature omitted. " ' "Courts must take a statute as


                                               8
they find it, and [even] if its operation results in inequality or hardship in some cases, the
remedy therefore lies with the legislative authority." ' [Citation.]" (Sierra Club. v.
Department of Parks & Recreation, supra, 202 Cal.App.4th at p. 744.) We express no
opinion on whether or how the Legislature should remedy the perceived problem.
              The judgment (order dismissing petition for writ of mandate and complaint for
injunctive/declaratory relief) is reversed. Appellant is awarded costs on appeal.
              CERTIFIED FOR PUBLICATION


                                                          YEGAN, J.
We concur:


              GILBERT, P. J.


              PERREN, J.




                                                9
                                Charles S. Crandall, Judge

                        Superior Court County of San Luis Obispo

                          ______________________________


             Thomas D. Roth for Plaintiff and Appellant.


             Adamski, Moroski, Madden, Raymond A. Biering and Jeffrey A. Minnery for
Defendants and Respondents.


             Michael C. Ghizzoni, County Counsel, and William M. Dillon, Senior Deputy,
for Amicus Curiae Santa Barbara County Air Pollution Control District on behalf of
Defendants and Respondents.


             Babal Nafici for Amicus Curiae Sierra Club on behalf of Defendant and
Respondent San Luis Obispo County Air Pollution Control District.




                                            10
