What Is the Exhaustion Doctrine ?

"The requirement of exhaustion of administrative remedy is founded on the theory that the administrative tribunal is created by law to adjudicate the issue sought to be presented to the court, and the issue is within its special jurisdiction. If a court allows a suit to go forward prior to a final administrative determination, it will be interfering with the subject matter of another tribunal. (See 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, 234, pp. 264-265.) Consequently, the requirement of exhaustion is a jurisdictional prerequisite, not a matter of judicial discretion. (Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal. App. 3d 105, 111 [122 Cal. Rptr. 282].) "The exhaustion doctrine . . . operates as a defense to litigation commenced by persons who have been aggrieved by action taken in an administrative proceeding which has in fact occurred but who have failed to 'exhaust' the remedy available to them in the course of the proceeding itself. (See Environmental Law Fund, Inc. v. Town of Corte Madera, supra, 49 Cal. App. 3d at p. 112.)" (California Aviation Council v. County of Amador (1988) 200 Cal. App. 3d 337, 340-341 [246 Cal. Rptr. 110] (California Aviation Council), fn. omitted.) Section 14.5 of chapter 1514 of the Statutes of 1984, the measure by which section 21177 was enacted, "states that the 'intent of the Legislature in adding Section 21177 . . . [is] to codify the exhaustion of administrative remedies doctrine.' (Stats. 1984, ch. 1514, 14.5, p. 5345; italics added.) It further provides that 'it is not the intent [of the legislation] to limit or modify any exception to the doctrine of administrative remedies contained in case law.' (Ibid.; italics added.) 'We are thus directed to read [section 21177] with reference to a specific common law rule.' (Cantor v. Anderson (1981) 126 Cal. App. 3d 124, 129 [178 Cal. Rptr. 540]; citations omitted.) That rule has to do with the law of administrative remedies as it preceded the enactment of section 21177." (California Aviation Council, supra, 200 Cal. App. 3d at p. 346 (conc. opn. of Blease, J.).) Notwithstanding the Legislature's expressed intent, section 21177 is not properly speaking an exhaustion of administrative remedies statute. It requires one to raise issues in the hearing required by California Environmental Quality Act (CEQA) before the agency decides whether to approve the negative declaration.