Exhaustion of Administrative Remedies Doctrine California
"Ordinarily we use the word remedy as meaning a device to redress a wrong. It is decidedly inappropriate to speak of remedying a wrong which has not occurred and may not occur.
Prior to the adoption of a negative declaration under the scheme here in issue there is no wrong to be remediated. Hence, the mere public opportunity to participate in an administrative proceeding prior to the adoption of a negative declaration is not a remedy.
The exhaustion of administrative remedies doctrine has never applied where there is no available administrative remedy. (See e.g. Ramos v. County of Madera (1971) 4 Cal. 3d 685, 690-691 [94 Cal. Rptr. 421, 484 P.2d 93]; Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal. App. 3d 938, 945 [237 Cal. Rptr. 191]; 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, 238.)
". . . Once a wrongful administrative action has been taken the focus of the affected members of the public is sharpened. If some reasonable administrative remedy, such as the right to appeal the action of a planning commission, were afforded to challenge such improper action the doctrine of administrative remedies would bar suit by litigants who failed to employ it. (See generally, Friends of Mammoth v. Bd. of Supervisors (1972) 8 Cal. 3d 247, 267 [104 Cal. Rptr. 761, 502 P.2d 1049].)
The right of a person to appear in administrative proceedings leading to the adoption of a negative declaration under California Environmental Quality Act is not properly speaking an administrative remedy which must be exhausted." (California Aviation Council, supra, 200 Cal. App. 3d at pp. 348-349 (conc. opn. of Blease, J.).)
Rather, the right to appear in a hearing leading to the adoption of a negative declaration is more appropriately viewed as an obligation required to be fulfilled in order to obtain standing.
"The plaintiff must plead and prove facts showing standing, i.e., that he is a person entitled to judicial relief. (See 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, 856.)
This requirement is sometimes confused with the entirely separate issue of exhaustion of administrative remedies. (See Kane v. Redevelopment Agency (1986) 179 Cal. App. 3d 899 [224 Cal. Rptr. 922].)
A person lacking standing may not bring an action notwithstanding that an available administrative remedy was otherwise pursued." (California Aviation Council, supra, 200 Cal. App. 3d at p. 349 (conc. opn. of Blease, J.).)
Indeed, when the Legislature both enacted and amended section 21177 in 1984 and 1993, respectively, it did so with the intent of limiting the standing of persons who could sue under California Environmental Quality Act (CEQA), as well as codifying without change the judicially created exhaustion doctrine.
Thus, the report by the Senate Committee on Governmental Organization stated the then proposed section 21177 "stipulates that no person shall have standing to bring an action under CEQA to attack, review or set aside a finding of a public agency unless that person presents the alleged grounds for noncompliance orally or in writing during the public review process." (Sen. Com. on Governmental Organization, Staff Analysis of Assem. Bill No. 2538 (1983-1984 Reg. Sess.) as amended June 20, 1984, p. 2, italics added.)
Similarly, in 1993 when the Legislature clarified the public review process in which a litigant must first participate, it did so "to limit standing to challenge CEQA requirements to those who have objected to the project during the public comment period or prior to the close of the public hearing." (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 919 (1993-1994 Reg. Sess.) Aug. 9, 1993, p. 1, italics added.)