Angeles v. County of Kern
Filed
2/13/13 City of Los Angeles v. County of
Kern CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CITY OF LOS ANGELES et al.,
Plaintiffs and
Respondents,
v.
COUNTY OF KERN et al.,
Defendants and
Appellants.
F063381
(Super.
Ct. No. VCU242057)
APPEAL from
a judgment of the Superior Court of
County. Lloyd L. Hicks, Judge.
Arnold
& Porter, Jerome B. Falk, Steven L. Mayer, Sara J. Eisenberg; Theresa A.
Goldner, County Counsel, Mark L. Nations, Deputy County Counsel; Hogan Guiney
Dick, Michael M. Hogan; Hogan Law, Michael M. Hogan, for Defendants and
Appellants.
Carmen A.
Trutanich, City Attorney, Valerie Flores, Managing Assistant City Attorney,
Edward M. Jordan, Assistant City Attorney; Beveridge & Diamond, Gary J.
Smith, Zachary M. Norris, James B. Slaughter, for Plaintiffs and Respondents
City of Los Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi,
Inc., and Sierra Transport, Inc.
Lewis
Brisbois Bisgaard & Smith, Daniel V. Hyde and Paul J. Beck for Plaintiff and
Respondent County Sanitation District No. 2 of Los Angeles County.
Woodruff
Spradlin & Smart, Bradley R. Hogin for Plaintiff and Respondent Orange
County Sanitation District.
Law Offices
of Michael J. Lampe, Michael J. Lampe for Plaintiffs and Respondents Shaen
Magan, Honey Bucket Farms, Tule Ranch/Magan Farms, and Western Express, Inc.
Somach
Simmons & Dunn, Robert L. Larson for Plaintiff and Respondent California
Association of Sanitation Agencies.
Freeman
Freeman Smiley, Christopher M. Westhoff; National Association of Clean Water
Agencies, Nathan Gardner-Andrews for National Association of Clean Water
Agencies as Amicus Curiae on behalf of Plaintiffs and Respondents.
Barg Coffin
Lewis & Trap, Marc A. Zeppetello for Water Environment Federation as Amicus
Curiae on behalf of Plaintiffs and Respondents.
-ooOoo-
Measure E
is a Kern County ballot measure that was designed to ban in unincorporated
areas of the county the use of agricultural fertilizer made from recycled
municipal sewage sludge. The application
of this fertilizer, known in the industry as “biosolids,†is a major,
widespread, comprehensively regulated form of recycling upon which many
municipalities’ waste management systems depend. In fact, Kern cities, including Bakersfield,
Taft, Wasco and Delano, continue to apply biosolids to farmland in incorporated
areas, which are unaffected by Measure E.
If
enforced, Measure E would have the effect of preventing plaintiff City of
Los Angeles and others (including Kern County itself) from continuing to apply
biosolids in unincorporated areas as a means of disposing of sewage sludge on
farms they either own or contract with in Kern County. The litigation has been proceeding through
federal and state courts for more than six years. Most recently, the complaint was refiled in
the superior court after a federal district court’s judgment invalidating the
measure was vacated for reasons having nothing to do with the merits. Just as the district court had done earlier,
the superior court issued a preliminary injunction to prevent the measure from
taking effect, and defendant Kern County appeals.
Just like
the district court and the superior court, we conclude that a preliminary
injunction was appropriate. We agree
with both courts that plaintiffs were reasonably likely to succeed on two of
their contentions: (1) that
Measure E is preempted by the California Integrated Waste Management Act
(Pub. Resources Code, § 40000 et seq.) (CIWMA), and (2) that Measure
E conflicted with a state constitutional principle known as the regional
welfare doctrine and therefore exceeded Kern County’s authority.
We are
confident the superior court did not abuse its discretion in granting a
preliminary injunction in this case.
First and foremost, the superior court, in a determination not
challenged by any party in this appeal, concluded there was no evidence at
all of hardship to Kern County if the injunction were granted. The proponents of Measure E insisted
that land application of biosolids is dangerous, but the record in this case so
far does not support their view. At the
same time, there is a substantial likelihood of harm, including irreparable
harm, to plaintiffs if the preliminary injunction is not granted.
A
preliminary injunction should be granted when the moving party shows that it is
likely to succeed on the merits of a cause of action and the balance of
hardships resulting from granting or not granting the injunction tips in the
moving party’s favor. The more likely it
is that the moving party will prevail on the merits, the less strongly the
balance of hardships needs to tip in its favor.
In light of the undisputed lack of a showing of hardship to Kern County,
we conclude plaintiffs’ showing of a likelihood of success on the merits was
more than sufficient.
FACTUAL AND
PROCEDURAL HISTORIES
Local
governments in California and elsewhere are continuously obliged to collect and
treat municipal sewage and to dispose of the byproducts of sewage
treatment. (City of Los Angeles v. County of Kern (C.D.Cal. 2007) 509 F.Supp.2d
865, 871 (Los Angeles v. Kern II).) These byproducts, known as sewage sludge or
biosolids
Los Angeles v. County of Kern (C.D.Cal. 2006) 462 F.Supp.2d 1105, 1109 (
§ 503.9(w)), have often been disposed of by placing them in landfills or
incinerating them. In California,
however, local governments are mandated by the CIWMA to reduce their streams of
solid waste going to landfills and incinerators. (Pub. Resources Code, § 40051.)
their biosolids available for use as an agricultural fertilizer. This use is known as “land application†of
biosolids. (Los Angeles v. Kern I, supra, 462 F.Supp.2d at p. 1109.) As of 2009, 61 percent of biosolids generated
by sewage treatment plants in California were disposed of via land
application.
Land
application of biosolids is subject to federal, state, and local
regulations. In 1993, the United States
Environmental Protection Agency (EPA) issued Part 503 of title 40 of the Code of Federal Regulations
(Part 503), which divides biosolids into a Class A and a Class B
according to the quantity of pathogenic microorganisms remaining after
treatment. (40 C.F.R.
§ 503.32.) Class B biosolids
are treated to eliminate 99 percent of these microorganisms. The federal regulations allow land
application of them with site controls, such as restrictions on human access to
the farm fields and setbacks from property lines.
Class A
biosolids are treated to eliminate virtually all pathenogenic
microorganisms. The federal regulations
allow them to be applied to land with few restrictions and also allow them to
be bagged and sold for home gardening use.
A yet higher-quality grade is Class A Exceptional Quality (EQ)
biosolids. In these, eight trace metals
may be present in concentrations no greater than a specified level. EQ biosolids are not subject to
Part 503’s general requirements and management practices for land
application. (U.S. Environmental
Protection Agency, Environmental Regulations and Technology, Control of
Pathogens and Vector Attraction in Sewage Sludge (July
2003) 5;
C.F.R. § 503.13(b)(3), Table 3.) The State Water Resources Control Board
(SWRCB) has imposed additional regulations in the form of a general order
issued in 2004, Water Quality Order No. 2004-0012-DWQ.
application site to be approved before any biosolids are applied. Before Measure E, Kern County also
regulated land application of biosolids.
These regulations included a prohibition on land application of all
biosolids except Class A EQ biosolids.
For purposes of this appeal, it is undisputed that plaintiffs complied
with all the regulations in place before Measure E.
Government
regulators have generally maintained that land application of biosolids is safe
and have promoted land application as a beneficial use of biosolids, as well as
an effective means of disposing of the byproducts of sewage treatment without
landfilling or incineration. (
F.Supp.2d at p. 871.) In 2002, at
the request of the EPA, the National Research Council (NRC) evaluated the
effectiveness of Part 503 in protecting human health. (Los
Angeles v. Kern II, supra, at p. 872.)
The NRC found “‘no documented scientific evidence that the Part 503 rule
has failed to protect public health.’†(
It called for “‘additional scientific work is needed to reduce
persistent uncertainty’†arising from anecdotal allegations of disease, as well
as to ensure that the regulation’s standards were supported by current data and
methods, that the management practices called for by the regulations were
effective, and that the regulations were being enforced. (Ibid.) Additional research followed but found
nothing to undermine the conclusion that land application of biosolids in
compliance with the Part 503 regulations presents minimal risk to human
health. (Ibid.)
When the
SWRCB issued its regulations, it relied on a statewide program environmental
impact report (EIR) it had commissioned.
(California SWRCB Statewide Program Environmental Impact Report Covering
General Waste Discharge Requirements for Biosolids Land Application.
impacts of land application of biosolids in compliance with the regulations
would be less than significant.
(California SWRCB, General Waste Discharge Requirements of Biosolids
Land Application Draft Statewide Program EIR (Feb. 2004) at p. ES-14 &
table ES-1.
title="">[6]) Kern County, in its pre-Measure E regulations
restricting land application to Class A EQ biosolids, stated that it
“recognize[d] that exceptional quality biosolids … are considered by the
U.S. Environmental Protection Agency to be a product, whether distributed in
bulk form, bags or other containers, that can be applied as freely as any other
fertilizer or soil amendment to any type of land.†The county stated, however, that it would
“evaluate the need for further regulation†in the future.
Apart from
safety, land to which biosolids have been applied may have nuisance
issues. It may emit a foul odor and
attract flies. (Los Angeles v. Kern II, supra, 509 F.Supp.2d at p. 873; U.S.
EPA, Biosolids Generation, Use, and Disposal in The United States (Sept. 1999)
40-41.)
When the
Legislature enacted the CIWMA in 1989, plaintiff City of Los Angeles adopted a
policy of beneficially reusing 100 percent of its biosolids and disposing of
none of them in landfills. In 1994, it
began a program of applying biosolids as fertilizer at Green Acres Farm, a
4,700-acre farm in the unincorporated area of Kern County, 15 miles southwest
of Bakersfield and 120 miles north of Los Angeles. The city purchased the farm in 1999 for
almost $10 million. When Kern County
adopted the regulations restricting land application to Class A EQ
biosolids, Los Angeles spent about $15 million to upgrade its sewage treatment
plants to enable them to process biosolids to the required quality level. Today, about 75 percent of the biosolids
generated by Los Angeles’s sewage treatment plants are applied at Green Acres
Farm.
Plaintiffs
County Sanitation District No. 2 of Los Angeles County and Orange County
Sanitation District began supplying biosolids to farmers for land application
in the unincorporated area of Kern County beginning in 1994 and 1996,
respectively. Plaintiff Responsible
Biosolids Management, Inc., contracts with Los Angeles to manage the
transportation of biosolids to Green Acres Farm and the application of
biosolids there. Plaintiff Sierra
Transport, Inc., contracts with Responsible Biosolids Management, Inc., to
carry biosolids from Los Angeles to Green Acres Farm by truck. Plaintiff R&G Fanucchi, Inc., contracts
with Los Angeles to carry out the farming operations at Green Acres Farm. Plaintiff California Association of
Sanitation Agencies is a nonprofit corporation representing cities and other
public agencies that provide sewer service to over 90 percent of those
Californians who have sewer service. It
maintains a biosolids program designed to promote the recycling of biosolids.
In June
2006, Measure E was placed on the Kern County ballot. Known as the “Keep Kern Clean Ordinance of
2006,†it included the following statement:
“There are numerous serious unresolved issues about the
safety, environmental effect, and propriety of land applying Biosolids or
sewage sludge, even when applied in accordance with federal and state
regulations. Biosolids may contain heavy
metals, pathogenic organisms, chemical pollutants, and synthetic organic
compounds, which may pose a risk to public health and the environment even if
properly handled. Sampling and other
monitoring mechanisms are not feasibly capable of reducing the risks associated
with Biosolids to a level acceptable to the people of Kern County. Land spreading of Biosolids poses a risk to
land, air, and water, and to human and animal health. It may cause loss of confidence in
agricultural products from Kern County.
It causes the loss of productive agricultural lands capacity for human
food production for significant periods of time. It presents a risk of airborne Biosolid
particulate matter in circumstances unique to Kern County. It presents risks of unique odor, insect attraction,
and other nuisances which are unacceptable to the people of Kern County and
cannot be feasibly controlled to a risk level acceptable to the people of Kern
County.
“For each of the foregoing reasons, individually and
collectively, and in order to promote the general health, safety and welfare of
Kern County and its inhabitants, it is the intent of this Chapter that the land
application of Biosolids shall be prohibited in the unincorporated area of Kern
County.â€
The federal
district court described the anti-Los Angeles tone of the yes-on-E
campaign. The court quoted the following
campaign statements: “‘Measure E will
stop L.A. from dumping on Kern’â€; “‘We will proclaim our independence from
polluting Southern California and Los Angeles’â€; “‘A lot of voters are just
kind of tired of being the dumping ground for everyone else in the state.… Enough sludge, enough sexual predators,
enough prisons, enough dairies. When
does the county stand up for itself?’†(
F.Supp.2d at p. 876.) The campaign
web site featured “graphics that state ‘Keep L.A. Sludge out of Kern County’
and depict stacked outhouses, with the top labeled ‘LA COUNTY’ and the bottom
labeled ‘KERN COUNTY.’†(
The web site had a link to an editorial stating:
“‘Until Kern County voters say no to sludge and YES to
Measure E, every man, woman and child who lives here will have to put up
with Southern California dumping its human and industrial waste on us. [¶]
Why? Because Kern County is the
cheapest place for Southern California to dump the chemical and
biological-laced goo that is scraped from the bottom of its sewer plants. [¶]
Measure E on the June ballot will prohibit the land application of
sludge in unincorporated areas of Kern County.
Southern California will have to find a better, safer way to dispose of
its goo, which contains heavy metals, industrial solvents, feces, medical waste
and pharmaceuticals.’†(
F.Supp.2d at p. 877.)
The
district court quoted more campaign material of similar character (
F.Supp.2d at p. 877) and stated that the material was relevant to show the
voters’ intent (id. at p. 885,
fn. 12). Some of these, and other
similar, examples of campaign literature, are quoted in the record in this case
as well. Measure E passed with over
83 percent of the vote. (
Measure E
did not affect the incorporated areas
of the county and could not have done so as those areas are outside the
county’s jurisdiction. Cities in Kern
County apply biosolids to farmland within city boundaries. The district court stated that these cities
include Bakersfield, Taft, Wasco, and Delano.
The district court also stated that 61 percent of Kern County’s voters live
in incorporated areas (Los Angeles v.
Kern II, supra, 509 F.Supp.2d at p. 886), including 44 percent in
Bakersfield alone (id. at
p. 876), and that “[t]his means that over three-fifths of the
decision-makers tolerate local disposition of locally generated biosolids, but
have prevented out-of-county recyclers from engaging in precisely the same
activity by banning the operation of any biosolid recycling facilities in the
unincorporated areas of the County†(id.
at p. 886).
Plaintiffs
filed suit in federal court shortly after Measure E’s passage. Their complaint alleged that Measure E
contravened the negative or dormant implications of the commerce clause of the
federal Constitution, violated the equal protection clause of the federal
Constitution, exceeded the county’s police power by violating the regional
welfare doctrine, and was preempted by the federal Clean Water Act, the CIWMA,
and provisions of the California Water Code.
The complaint prayed for declaratory judgment, an injunction, and
damages.
The
district court granted plaintiffs’ request for a preliminary injunction on
November 20, 2006. (
F.Supp.2d at pp. 1108-1109.) It
found that plaintiffs were likely to succeed on the merits of three
claims: the dormant commerce clause
violation, CIWMA preemption, and exceeding the county’s police power by
violating the regional welfare doctrine.
(Los Angeles v. Kern I, supra, at
pp. 1112, 1115, 1117.) The court
also found that the balance of hardships tipped sharply in plaintiffs’
favor. (Id. at p. 1119.) Los
Angeles would lose some of the value of the $10 million it had spent buying
Green Acres Farm and the $15 million it had spent upgrading its facilities to
comply with Kern County’s earlier regulations.
It also would face increased costs of $4 million annually to operate a
program of applying biosolids to land at another location. County Sanitation District No. 2 of Los
Angeles County and Orange County Sanitation District would need to dispose of
more biosolids in landfills and would incur costs in sending their biosolids to
more distant sites. (
Los Angeles’s contractors and subcontractors—Responsible Biosolids
Management, Inc., Sierra Transport, Inc., and R&G Fanucchi, Inc.—all would
face costs, including risk of total business failure, if Los Angeles were
prevented from continuing its biosolids operation at Green Acres. (Id. at
p. 1120.) The harm to Kern County
from biosolids application, by contrast, was “merely potential, and not yet
supported by substantial evidence.†(
On
August 10, 2007, the district court granted plaintiffs’ motion for summary
adjudication on two causes of action and entered judgment for plaintiffs. (Los
Angeles v. Kern II, supra, 509 F.Supp.2d at pp. 865, 902.) The court ruled that there were no triable
issues of material fact about, and that plaintiffs were entitled to judgment as
a matter of law on, the dormant commerce clause claim and the CIWMA preemption
claim. (Los Angeles v. Kern II, supra, at pp. 878, 881, 888,
898.) The court found it could not grant
summary adjudication on plaintiffs’ police powers/regional welfare claim. It believed the resolution of this claim
depended on remaining factual questions about the suitability of Green Acres
Farm as a site for biosolids application and the reasons for Los Angeles’s
decision to use Green Acres Farms instead of a site closer to the city. (Id.
at pp. 898, 901.) The court entered
judgment for plaintiffs even though it had not granted summary adjudication on
all claims because its rulings on the dormant commerce clause and the CIWMA
preemption rendered the remaining claims moot.
(Los Angeles v. Kern II, supra, at
p. 902.)
Without
reaching the merits of any of plaintiffs’ claims, the Ninth Circuit in 2009
dismissed plaintiffs’ dormant commerce clause claim and vacated the district
court’s judgment. (City of Los Angeles v. County of Kern (9th Cir. 2009) 581 F.3d 841,
849.) The Court of Appeals held that
plaintiffs lacked prudential standing to bring the dormant commerce clause
claim in federal court because, being located in the same state as defendants,
their interest in sending biosolids to Kern County did not fall within the zone
of interests protected by the dormant commerce clause doctrine. (Id.
at pp. 847-848.) The court vacated
the entire judgment of the district court and remanded with instructions to
that court to consider whether it should exercise supplemental jurisdiction
over the CIWMA preemption claim. (
supra, at p. 849.) In an
unpublished order filed November 9, 2010, the district court declined to
exercise supplemental jurisdiction and dismissed the case, leaving plaintiffs
to pursue relief in state court. The
court stated that principles of comity strongly supported dismissal because the
remaining state-law issues raised “sensitive issues about the allocation of
state and local power in California,†which would be better resolved in state
court.
On
January 19, 2011, Kern County sent plaintiffs an enforcement notice
stating that plaintiffs were subject to Measure E and must stop applying
biosolids within six months of the date of the letter. Plaintiffs filed their complaint in superior
court on January 26, 2011.
name="_ftnref9" title="">[9] The complaint alleged CIWMA preemption, the
police power/regional welfare doctrine claim, and the dormant commerce clause
claim. It also alleged two additional
claims based on the California Constitution.
Plaintiffs
moved for a preliminary injunction. In
an order meriting reproduction at length here, the Tulare County Superior Court
found that plaintiffs had shown a likelihood of success on the merits of the
police power/regional welfare claim and the CIWMA preemption claim. It also found that plaintiffs had shown a
balance of hardships tipping sharply in their favor:
“[On the police power/regional welfare doctrine
claim:] Legislation is a valid exercise
of the police power if it is reasonably related to the general welfare, with
the caveat (Associated Home Builders v. Livermore (1976) 18 Cal. 3d
582) that if the enactment has an effect beyond the territory of the enacting
local government, the general welfare to be considered is that of the entire
affected area and not just that of the local jurisdiction.
“The enactors must identify, consider, and weigh any
competing interests affected. The
question for a reviewing court is whether, considering the extraterritorial
effect of the ordinance, it represents a reasonable accommodation of any
competing interests.
“The record is devoid of any consideration of any
competing interests, and of any attempt to accommodate any competing
interests. Since ‘E’ was enacted by
initiative, there is no legislative history to look at. We are left with campaign material, which, as
a generality, seems to be an indication the proponents were seeking to prevent
big LA from taking advantage of little Kern by exporting its foul products to
Kern and dumping them in Kern.
“The competing interests here are Kern’s need to protect
its citizens from the unknown potential harm from biosolids, and their alleged
effect on the reputation of Kern’s agricultural products, versus LA’s need to
dispose of biosolids in an environmentally appropriate and least costly manner.
“There is no law with statewide application which
prohibits the land application of biosolids.
“There are federal and state laws and regulations which
contemplate the propriety of the land application of biosolids, and which
regulate that activity.
“California does not consist of 58 separate fiefdoms, or
of three or four separate regions, all insular from each other. As noted by the Court of Appeal in County
Sanitation [Dist. No. 2] v. County of Kern (2005) 127
Cal. App. 4th 1544, in the context of effects to be considered in an
EIR, localities cannot retreat into isolationism and ignore this fact. We all live here, and what any state actor
does elsewhere may affect us all.
“LA cannot engage in ‘source reduction.’ Its population is increasing. It has to do something with its biosolids,
and whatever it does, and wherever it does it, someone will be affected.
“A reasonable accommodation would seem to be the 1999
ordinance, restricting the land application to ‘A’ grade biosolids.
“‘E’ represents no accommodation. A complete ban precludes an ‘accommodation.’
“The court thus finds that there is a very reasonable
probability that LA will prevail on the theory that ‘E’ is invalid as beyond
the scope of an allowed police power measure.
[¶] … [¶]
“[On the CIWMA preemption claim:] The declared policy of the Act is to promote
source reduction, recycling, and re-use of solids to reduce the amount going
into landfills.
“Kern argues that the Act only ‘promotes’ but does not
require this. However, as stated by the
Court of Appeal in County Sanitation District No. 2, supra, the Act ‘… requires
the use of recycling and source reduction to reduce the amount of solid waste
going into landfills …’ and ‘this legislation caused sewage sludge to be
diverted from disposal in landfills in favor of recycling it—as a fertilizer
applied to agricultural … land.’
“The Act allows local regulation not in conflict with
the policies of the Act, but a complete ban is not a permitted regulation.
“‘E’ takes away as to Kern County a method of disposing
of biosolids that state law specifically requires be promoted by local
governments.
“The court finds that it is reasonably probable that LA
will prevail on the theory that ‘E’ is invalid as contrary to state law. [¶] … [¶]
“[On the balance of hardships:] LA presents declarations from qualified
individuals with first hand knowledge of the sites and, particularly as to [Green
Acres], who have studied the test reports relating to the subject biosolids.
“These experts opine that continued biosolid
applications will not [affect] the groundwater; will not [affect] the water
banks nearby; that metals will not leach down anywhere near the water
level. They opine that the net effect of
the application is a benefit to Kern, in that it improves the soil and allows
marginal land to grow crops.
“LA presents declarations from qualified persons with
respect to the costs incurred to date, and additional significant costs, and
expenses which would be incurred in effectuating alternatives to continued Kern
application, and the adverse environmental effects of some of these.
“Other Plaintiffs present declarations regarding the
[effect] on their business and employees’ jobs were land application to be
stopped by Kern.
“LA also discusses the time which would be required to
set up and start operations with alternatives, specifically [a composting
facility].
“Kern presents a declaration, without reference to the
subject sites and conditions, to the effect that there is some literature in
the United States (without differentiating between ‘A’ and ‘B’ classes)
indicating there could possibly be some as yet unknown risks which biosolids
could pose.
“Kern also now claims there are composting businesses in
Kern with permits sufficient to handle the quantity of biosolids being applied
by LA. However, there is no evidence
these sites would take it all, or of how long a process would be required to do
so (LA says at least 18 months).
“Kern presents declarations from water bank operators,
with no admissible information other than that the banks are in the area of
[Green Acres].
“Kern presents no evidence of any actual harm to the
environment: to the air, water, or soil,
as a result of LA’s continued application of biosolids.
“Kern does present individual complaints of adjacent
(for the most part) employees to the effect that the two farms smell bad, and
that there are many flies in their area adjacent to the farms.
“Per other declarations, there are also dairies in the
area. Dairies are famous for the
pervasive odor of urine and manure, and for flies. The same goes, to a lesser extent, for cattle
ranches and horse ranches.
“The declarants are careful to say the smell is
‘different’ from dairy smell (but do not compare on an offensiveness scale).
“It cannot be ascertained from the declarations the
extent to which the flies result from the application of biosolids, or from
other uses, nor the extent to which there may also be smell from dairies, the
cattle ranch, and the horse operation.
“There is some degree of smell inherent in agricultural
operations. Dairies smell; feedlots
smell. Dairies are frequently scraped,
and the untreated manure applied to other ag land as fertilizer, causing that
land to smell.
“Dairy pond water is also frequently used for
irrigation, also causing smell from the watered land.
“There are fly and odor control requirements in LA’s
Water Quality Permit, with only one fly violation noted years ago.
“The [L]egislature has long recognized that a problem,
consisting mainly of many nuisance suits, was being caused by residential
encroachment into ag areas, particularly dairies (e.g. Chino).
“This resulted in the [L]egislature enacting, in 1981,
the ‘right to farm’ law (Civil Code section 3481.5), under which any farm
(or processing plant, CC section 3482.6) legally in operation for three
years could not be declared a nuisance due to a change in the area.
“These complaints represent something those of us who
live in agricultural areas know we simply have to put up with as part of our
local ag based economy.
“The declarants here report an annoyance to their
olfactory sensibilities (with apologies to Justice Richli for stealing [her]
phrase) in the nature of a private nuisance.
This does not represent a health and safety issue.
“LA seeks to preserve the long time status quo. The private nuisance aspects are limited to a
few individuals working immediately adjacent to the property. Kern presents no evidence whatsoever of any
health and safety or environmental actual harm.
“LA presents evidence of substantial monetary harm and
the inability to quickly adapt to alternatives.
Individual Plaintiffs present evidence of irreparable harm consisting of
job losses.
“There is no public policy reason to deny the
injunction, and a good public policy reason to grant it.
“The court finds that there is no evidence at all that
Kern will suffer any harm or injury by the grant of the injunction, and that
there is a substantial likelihood of significant, and some irreparable, harm to
Plaintiffs if the injunction is denied.â€
DISCUSSION
The
granting of a preliminary injunction is governed by Code of Civil Procedure
section 526. The trial court must
consider two interrelated factors:
(a) the likelihood that the plaintiff will succeed on the merits at
trial, and (b) a comparison of the harm the plaintiff will suffer without
the injunction with the harm the defendant will suffer with it. (King
v. Meese (1987) 43 Cal.3d 1217, 1226.)
The more likely it is that the plaintiff will prevail on the merits, the
less severe must be the harm it will suffer if the injunction does not
issue. (Id. at p. 1227.)
We review
the trial court’s decision for an abuse of discretion. (King
v. Meese, supra, 43 Cal.3d at p. 1226.) Where, as here, the superior court has
granted the injunction, the restrained defendant can prevail on appeal by
showing that the court abused its discretion as to only one of the two factors. (Smith
v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749 (
Kern County is therefore correct in its assertion that we must reverse
if the trial court abused its discretion in concluding that plaintiffs are
likely to succeed on at least one cause of action, even if plaintiffs have
proved that the balance of hardships tips in their favor. At the same time, the degree of likelihood of success on the merits that plaintiffs had
to show is affected by Kern County’s undisputed total failure to show any
hardship to it from the granting of the injunction.
Under the
abuse of discretion standard, to the extent that the challenged ruling was
based on factual findings, we affirm if the ruling is supported by substantial
evidence. To the extent that the ruling
was based on pure conclusions of law, we review it independently. (Smith,
supra, 182 Cal.App.4th at p. 739.)
I. The limitations period
under 28 United States Code section 1367(d)
Kern County
first argues that plaintiffs cannot succeed on the merits because their
complaint was untimely filed in the superior court. Plaintiffs maintain that it was filed
timely. The dispute arises from the
parties’ competing interpretations of subsection (d) of 28 United States
Code section 1367, a federal statute that governs the limitations period
for refiling a dependent claim in state court after it has been dismissed by a
federal court. In our view, plaintiffs’
interpretation is correct.
28 United
States Code section 1367(a) provides that federal district courts have
supplemental jurisdiction over claims that are part of the same case or
controversy as claims over which those courts have original jurisdiction. Section 1367(c) provides that the
district courts may decline this supplemental jurisdiction under certain
circumstances. Section 1367(d)
provides for an extended statute of limitations for the refiling in state court
of claims as to which supplemental jurisdiction has been declined. It states that “[t]he period of limitations
for any claim asserted under subsection (a) … shall be tolled while
the claim is pending and for a period of 30 days after it is dismissed unless
State law provides for a longer tolling period.â€
Plaintiffs
argue for the natural interpretation of this language: The statute of limitations stops running
while the claim is pending in federal court and for 30 days after it is
dismissed; then the statute of limitations begins to run again from the point
where it left off. So, for instance,
suppose a state law claim has a statute of limitations of one year, and the
plaintiff files it in federal court six months after it accrues. Later, the federal court decides not to
exercise supplemental jurisdiction over the claim and dismisses it. At that point, the
again and the plaintiff has the remaining six months plus the 30 days added by
28 United States Code section 1367(d) to refile in state court. Under this interpretation, the statute of
limitations stopped running in this case when plaintiffs filed their complaint
in federal court shortly after Measure E’s passage in 2006 and did not
begin to run again until 30 days after the district court dismissed the case on
November 9, 2010, so that plenty of time remained when plaintiffs filed
the complaint in superior court in January 2011.
Plaintiffs
rely on the Third District Court of Appeal’s opinion in Bonifield v. County of Nevada (2001) 94 Cal.App.4th 298, 303-304
and on a federal district court opinion, In
re Vertrue Marketing & Sales Practices Litigation (N.D. Ohio 2010) 712
F.Supp.2d 703, 724. Those cases state
that the running of the limitations period is suspended during the pendency of the claim in federal court and for
30 days after its dismissal; plaintiffs consequently refer to their
interpretation of 28 United States Code section 1367(d) as the suspension
approach. Bonifield holds: “To toll
the statute of limitations period means to suspend the period, such that the
days remaining begin to be counted after the tolling ceases.†(Bonifield,
supra, at p. 303.) In
consequence, after dismissal, a plaintiff has that number of days plus 30 days
to refile in state court. (
reaching the same conclusion. (
777 N.W.2d 755, 761-762; Turner v. Kight
(Md. 2008) 957 A.2d 984, 992.)
Kern
County’s interpretation of 28 United States Code section 1367(d) is that
the limitations period is not suspended while the claim is pending in federal
court, and instead continues to run during that time; but if it would otherwise
expire during that time or during the 30 days after dismissal, then it is
extended until the 30th day after dismissal.
Kern County relies on the Second District Court of Appeal’s opinion in
402 (Kolani), on two out-of-state
cases (Berke v. Buckley Broadcasting
Corp. (N.J.Super.A.D. 2003) 821 A.2d 118; Huang v. Ziko (N.C.Ct.App. 1999) 511 S.E.2d 305), and on an
unpublished case from the Supreme Court of the Commonwealth of the Northern
Mariana Islands (Juan v. Government of
Commonwealth of Northern Mariana Islands (N.M.I.) 2001 WL 34883536), all
interpreting 28 United States Code section 1367(d) in this way. Kern County refers to these courts’
interpretation as the extension approach.
Kern County
also cites Chardon v. Fumero Soto
(1983) 462 U.S. 650, in which the Supreme Court discussed different kinds of
“tolling effect†a law that tolls a limitations period can have. A tolling effect is “the method of
calculating the amount of time available to file suit after tolling has
ended. The statute of limitations might
merely be suspended; if so, the plaintiff must file within the amount of time
left in the limitations period. If the
limitations period is renewed, then the plaintiff has the benefit of a new
period as long as the original. It is
also possible to establish a fixed period such as six months or one year during
which the plaintiff may file suit, without regard to the length of the original
limitations period or the amount of time left when tolling began.†(Id.
at p. 652, fn. 1.)
Kern
contends that the suspension approach and the extension approach are equally
plausible readings of the words of the statute, and that we must break the tie
in favor of the extension approach because of policy considerations identified
by the Kolani court. In that court’s view, the suspension approach
is “unreasonable†since it is “not needed to avoid forfeitures, because 30 days
is ample time for a diligent plaintiff to refile his claims and keep them
alive.†(Kolani, supra, 64 Cal.App.4th at p. 409.) The suspension approach also would do
“significant harm to the statute of limitations policy,†which the court
described as ensuring prompt filing of claims.
(Ibid.)
The two
approaches are not equally plausible readings of the statutory language,
however. Kern is correct that there is
authority for the view that “toll†does not always equal “suspend,†but that is
what it most plausibly means in the context at issue here. The alternative argued for by Kern—that
“toll†means “extendâ€â€”simply does not fit into the sentence Congress
drafted. What happens if we substitute
the words “suspend†and “extend†for “toll†in that sentence? “The period of limitations for any
claim … shall be suspended while
the claim is pending and for a period of 30 days after it is dismissed†makes
sense and straightforwardly expresses the meaning for which plaintiffs
contend. “The period of limitations for
any claim … shall be extended
while the claim is pending and for a period of 30 days after it is dismissed,â€
by contrast, is obscure and would be an obtuse way of expressing the meaning
for which Kern contends. The fact that
other meanings of “toll†have been identified in case law therefore sheds no
light on what “toll†means here. If Congress had intended the rule Kern
supports, it could have written that the “period of limitations for any claim
that would otherwise expire while it is pending or during a period of 30 days
after it is dismissed shall be extended by 30 days from the time of dismissal,â€
or something similar. It did not.
Further, it
is far from clear that policy reasons favor Kern’s interpretation. In essence, Kern says it is better policy not
to exclude the time when the case was pending in federal court from the
calculation of the limitations period because that way claims must be refiled
sooner after dismissal. That policy is
better for defendants, of course—just as the plaintiffs’ approach is better
policy for plaintiffs. We, however, are
neutral as between pro-defense and pro-plaintiff policy considerations. The law does encourage prompt filing of claims,
but it balances that concern with a concern for ensuring that meritorious claims
can have their day in court. There is no
rule that, where one interpretation of a statute results in a longer
limitations period and another results in a shorter, a court should always
choose the shorter. There being no
policy factor favoring either side here, the linguistic considerations
discussed above carry the day.
For these
reasons, we reject Kern County’s argument that plaintiffs’ complaint was not
timely filed in the superior court.
II. Preemption by the CIWMA
When it
enacted the CIWMA in 1989, the Legislature set out to reduce the quantity of
solid waste being sent to landfills and incinerators statewide. Section 41780 required every city and
county to use source reduction, recycling, and composting to divert 25 percent
of its solid waste from landfills and incinerators by January 1, 1995, and
50 percent by January 1, 2000. The
key provision of the CIWMA for purposes of this case, section 40051,
provides:
“In
implementing this division, the board and local agencies shall do both of the
following:
“(a) Promote the following waste management
practices in order of priority:
“(1) Source reduction.
“(2) Recycling and composing.
“(3) Environmentally safe transformation and
environmentally safe land disposal, at the discretion of the city or county.
“(b) Maximize the use of all feasible source
reduction, recycling, and composting options in order to reduce the amount of
solid waste that must be disposed of by transformation and land disposal. For wastes that cannot feasibly be reduced at
their source, recycled, or composted, the local agency may use environmentally
safe transformation or environmentally safe land disposal, or both of those
practices.â€
title="">[11]
Section 40052
reinforces the mandates of section 40051.
It explains that the overarching purposes of the CIWMA include
maximizing recycling:
“The
purpose of this division is to reduce, recycle, and reuse solid waste generated
in the state to the maximum extent feasible in an efficient and cost-effective
manner to conserve water, energy and other natural resources, to protect the
environment, to improve regulation of existing solid waste landfills, to ensure
that new solid waste landfills are environmentally sound, to improve permitting
procedures for solid waste management facilities, and to specify the
responsibilities of local governments to develop and implement integrated waste
management programs.â€
Finally, in
section 40053, the Legislature made it clear that, although local
government was still authorized to make its own regulations on land use and
solid waste management facilities, these regulations would be valid only if
reasonable and consistent with the CIWMA and its policies:
“This
division, or any rules or regulations adopted pursuant thereto, is not a
limitation on the power of a city, county, or district to impose and enforce
reasonable land use conditions or restrictions on solid waste management
facilities in order to prevent or mitigate potential nuisances, if the
conditions or restrictions do not conflict with or impose lesser requirements
than the policies, standards, and requirements of this division and all
regulations adopted pursuant to this division.â€
Under state
law preemption principles, a county is authorized to make ordinances only if
they are “not in conflict with general laws.â€
(Cal. Const., art. XI, § 7.)
“If otherwise valid local legislation conflicts with state law, it is
preempted by such law and is void.†(
High School Dist. (1985) 39 Cal.3d 878, 885.) A conflict exists if an ordinance
“‘“contradictsâ€â€™â€ general law (Morehart
v. County of Santa Barbara (1994) 7 Cal.4th 725, 747), and an ordinance is
“‘contradictory’ to general law when it is inimical thereto†(
(1993) 4 Cal.4th 893, 898).
We agree
with plaintiffs that they are likely to prevail on their claim that the CIWMA
preempts Measure E.
Section 40051 requires local agencies like Kern County and the City
of Los Angeles to “[p]romote†and “[m]aximize†recycling. An ordinance of one local government that
prohibits, within its jurisdiction, the employment by another local government
of a major, widely accepted, comprehensively regulated form of recycling is not
consistent with this mandate.
In
Angeles (2002) 27 Cal.4th 853, the California Supreme Court discussed (but
had no occasion to adopt) a federal case containing an analysis that is helpful
here. Blue Circle Cement, Inc. v. Board of County Com’rs (10th Cir. 1994)
27 F.3d 1499, 1506-1507, considered a local ordinance that purported to grant
local authorities discretion to ban industrial waste disposal and treatment
facilities within a county, even though the federal Resource Conservation and
Recovery Act (42 U.S.C. § 6901 et seq.) had as one of its main purposes
the enlistment of state and local governments in a cooperative effort to
facilitate the recovery of materials and energy from solid waste. The Court of Appeals held that the federal
statute did not permit a total ban on industrial waste facilities because the
use of these to recover resources was an activity encouraged by that
statute. Our Supreme Court stated that
the case stood for “the proposition that when a statute or statutory scheme
seeks to promote a certain activity and, at the same time, permits more
stringent local regulation of that activity, local regulation cannot be used to
completely ban the activity or otherwise frustrate the statute’s purpose.†(Great
Western Shows, supra, at p. 868.)
Under this
analysis, which we consider appropriate here, Measure E is likely to be
held invalid because land application of biosolids, which undisputedly allows
solid waste to be disposed of through recycling instead of in landfills or
incinerators, is an activity the CIWMA seeks to promote and Measure E
purports totally to ban. Some local
regulation of biosolids may be compatible with the CIWMA. For instance, in County Sanitation Dist. No. 2 v. County of Kern, supra, 127
Cal.App.4th at pages 1557-1558, we upheld over several challenges not
involving the CIWMA the Kern County regulation that preceded Measure E and
that restricted land application to class A EQ biosolids. That regulation might be acceptable under the
CIWMA as well. A total ban, however, is inimical
to the CIWMA.
Kern
County’s several counterarguments are unpersuasive. It first contends that plaintiffs cannot bear
the heavy burden of demonstrating preemption because solid waste was “a
traditional subject of local control†before the passage of the CIWMA and
because, under the CIWMA, a large role remains for local government, which is
charged with formulating and implementing waste management plans. Kern County accuses the trial court of
ignoring these propositions, but we perceive no deficiency in its order in this
regard. The fact that solid waste management was a subject of local control
before the CIWMA, and the fact that local government is still involved in solid
waste management under the CIWMA, cannot save Measure E from preemption if
Measure E conflicts with
the CIWMA.
Kern County
next contends that the potential preemptive scope of section 40051 is
strictly limited by its opening phrase, “In implementing this
division .…†It asserts that this
phrase means local governments are required to promote and maximize recycling
and other waste-stream-reduction methods only when setting up and carrying out
their own waste management reduction plans as required by the CIWMA. They are under no obligation to do so when
regulating waste generated outside their jurisdictions. It maintains that when its voters adopted
Measure E, they were not implementing the CIWMA, so the requirements of
section 40051 are irrelevant.
This cannot
be correct, at least under the circumstances of this case. Land application of biosolids is a widely
used, widely accepted, comprehensively regulated method by which municipalities
fulfill their obligation to reduce the flow of waste to landfills. Kern County jurisdictions use it just as
others do. One jurisdiction’s action to
ban it, and to interfere with other jurisdictions’ efforts to comply with their
CIWMA obligations, is not consistent with a statutory scheme that presumes all
jurisdictions will have access to crucial waste-stream-reduction methods. If we held that Kern County is empowered to
ban land application of biosolids, we would necessarily be implying that all
counties and cities are empowered to do the same. As the superior court observed, Los Angeles
has to do something with its biosolids.
The same goes for every city and county in the state. Kern County asks us to adopt a position that
would authorize all local governments to say “not here.†That principle would not be consistent with a
statute that requires all local governments to adhere to waste management plans
in which recycling is maximized. The
CIWMA announces statewide goals and means to achieve them. Kern County claims an entitlement to ban
those means and thwart the achievement of those goals for others so long as it
is complying with its own obligation to reduce the flow of waste it collects
itself. This claim will likely be
rejected in a trial on the merits.
Section 40052
supports our conclusion. It states as
maximizing of recycling and the specification of local governments’
responsibilities in managing their own jurisdictions’ waste. This further undermines Kern County’s notion
that the mandates of section 40051 relate only to local governments’ plans
to manage their own jurisdictions’ waste.
Kern County
next offers an argument based on section 41851. That section provides that “[n]othing in this
chapter shall infringe on the existing authority of counties and cities to
control land use or make land use decisions, and nothing in this chapter
provides or transfers new authority over that land use to the board.†Kern County says this provision means the
CIWMA does not preempt Measure E.
Since sections 40051 and 40052 are not in the same chapter as
section 41851, however, it is difficult to see how the disclaimer about
what that chapter does not do could negate the preemptive effect of
sections 40051 and 40052.
In an
attempt to meet this problem, Kern County says that the chapter containing
section 41851 delineates procedures for the creation and approval of local
governments’ waste management programs, that the approval is given by the board
(i.e., now, the Department of Resources Recycling and Recovery), and that
therefore the board’s approval authority cannot infringe on the existing authority
of counties to make land use decisions.
In our view, all this is irrelevant to the preemption question. The statute clearly states a purpose of
requiring all jurisdictions to maximize recycling and other methods of
waste-stream reduction, and Kern’s position would allow all jurisdictions to
undermine that purpose by banning methods of waste-stream reduction. Whether the Department of Resources Recycling
and Recovery could theoretically order a city or county not to ban a major
waste-stream-reduction method is not a question we need to answer as it would
have no bearing on this case.
Kern County
next cites section 18735.3(b) of title 14 of the California Code of
Regulations, a provision promulgated pursuant to the CIWMA. That regulation requires each city and county
to “consider changing zoning and building code practices to encourage recycling
of solid wastes, such as, rezoning to allow siting of a drop-off recycling
center in residential neighborhoods or revising building codes to require adequate
space be allotted in new construction for interim storage of source-separated
materials.†Kern County says this
implies that local governments can change their ordinances to encourage
recycling if they want to do so, but they are never required to change them for
that purpose; consequently, the superior court was wrong to find that
Measure E is likely to be held invalid.
The
regulation does not support Kern County’s conclusion. The regulators’ decision to require cities
and counties to consider whether any of their ordinances should be changed to
encourage recycling is entirely consistent with the court’s decision that one
ordinance illegally blocks recycling. To
tell governments they may encourage recycling voluntarily by changing their
ordinances does not imply that they may ban major forms of recycling if they
wish.
Kern County
next contends that plaintiffs’ biosolids application activities do not count as
recycling for purposes of the CIWMA.
This is so, Kern County maintains, because section 41781.1 allows
governments to receive credit toward their solid-waste-diversion goals based on
land application of biosolids only if the Department of Resources Recycling and
Recovery makes findings after a hearing that the biosolids will not pose a threat
to public health or the environment. The
purpose of this requirement is to ensure that “each sludge diversion, for which
diversion credit is sought, meets all applicable requirements of state and
federal law, and thereby provides for maximum protection of the public health
and safety and the environment.â€
(§ 41781.1, subd. (b).)
Plaintiffs do not claim there were any administrative hearings or
findings regarding their biosolids. They
state, instead, that they never sought diversion credit for their biosolids
activities (at least as to plaintiff City of Los Angeles) because they began
recycling the waste before the CIWMA took effect, so that activity was included
in the baseline from which additional reductions were required to be made.
Kern
County’s view misses the point. The goal
of the CIWMA is to reduce the stream of waste going to landfills and
incinerators, regardless of what counts for diversion credit. Measure E thwarts an important category
of recycling that reduces the waste stream going to landfills. The illegality of this does not depend on
whether plaintiffs are receiving diversion credit for any particular
biosolids. To put the point another way: If we adopted Kern County’s position, then
all cities and counties would be free to ban land application of biosolids at
all locations, including those for which a hearing had been held and approval
given; and this would not be consistent with the statute’s goal of maximizing
waste-stream reduction. In fact, the
presence in the CIWMA of procedures for approving the use of land application
of biosolids as a way of reaching diversion goals supports the contention that the CIWMA preempts
Measure E. These procedures
presuppose that land application of biosolids will not be banned but will be an
available method of reducing cities’ and counties’ waste streams when (as is
undisputedly the case here) the biosolids satisfy state and federal regulatory
standards. By banning land application,
even when it does meet those standards, Measure E directly conflicts with section 41781.1.
The fact
that plaintiffs’ biosolids are not being counted toward their diversion goals
fails to support Kern County’s position in another way as well. If plaintiffs become unable to apply their
biosolids in Kern County, they presumably will be required to find other
locations in which to apply them or to reduce other portions of their waste
stream. They cannot adhere to their
diversion targets if waste that was recycled when their baseline was determined
is no longer recycled. Measure E
therefore would directly undermine plaintiff agencies’ ability to comply with
the CIWMA even though their land application of biosolids is not being counted
as diversion.
Finally,
Kern County claims Measure E is saved from preemption by section 40059,
subdivision (a), which provides:
“(a) Notwithstanding any other provision of
law, each county, city, district, or other local governmental agency may
determine all of the following:
“(1) Aspects of solid waste handling which are
of local concern, including, but not limited to, frequency of collection, means
of collection and transportation, level of services, charges and fees, and
nature, location, and extent of providing solid waste handling services.
“(2) Whether the services are to be provided by
means of nonexclusive franchise, contract, license, permit, or otherwise,
either with or without competitive bidding, or if, in the opinion of its
governing body, the public health, safety, and well-being so require, by
partially exclusive or wholly exclusive franchise, contract, license, permit,
or otherwise, either with or without competitive bidding. The authority to provide solid waste handling
services may be granted under terms and conditions prescribed by the governing
body of the local governmental agency by resolution or ordinance.â€
Kern County
asserts that, because solid waste includes biosolids, “handling†includes
“processing†(§ 40195), “processing†includes “recycling†(§ 40172),
and land application is a form of recycling, it has authority to “determineâ€
the “nature, location, and extent†(§ 40059, subd. (a)) of land
application of biosolids. This includes
Measure E’s determination that, within Kern County’s jurisdiction, the location
will be nowhere and the extent will be none.
Further, even without applying some of these definitions, land
application of biosolids is among the “[a]spects of solid waste handling which
are of local concern†(§ 40059, subd. (a)(1)). Plaintiffs counter with the argument that
section 40059, subdivision (a), is designed to preserve local control
over trash hauling and garbage collection, and has nothing to do with
authorizing local governments to ban recycling methods. They cite a number of cases dealing with
section 40059 in the context of trash hauling and garbage collection.
It is
unnecessary for us to hold that the application of section 40059 is
limited to local regulation of trash hauling and garbage collection. Even accepting for the sake of argument Kern
County’s view that section 40059 has a more general scope, we do not
consider it likely that the Legislature intended the words of that statute to
authorize local bans on major, widespread, comprehensively regulated methods of
recycling. In light of the description
we have given of the overarching goals of the CIWMA, it is highly unl
| Description | Measure E is a Kern County ballot measure that was designed to ban in unincorporated areas of the county the use of agricultural fertilizer made from recycled municipal sewage sludge. The application of this fertilizer, known in the industry as “biosolids,†is a major, widespread, comprehensively regulated form of recycling upon which many municipalities’ waste management systems depend. In fact, Kern cities, including Bakersfield, Taft, Wasco and Delano, continue to apply biosolids to farmland in incorporated areas, which are unaffected by Measure E. If enforced, Measure E would have the effect of preventing plaintiff City of Los Angeles and others (including Kern County itself) from continuing to apply biosolids in unincorporated areas as a means of disposing of sewage sludge on farms they either own or contract with in Kern County. The litigation has been proceeding through federal and state courts for more than six years. Most recently, the complaint was refiled in the superior court after a federal district court’s judgment invalidating the measure was vacated for reasons having nothing to do with the merits. Just as the district court had done earlier, the superior court issued a preliminary injunction to prevent the measure from taking effect, and defendant Kern County appeals. |
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