Bureaucrats illegally drain the life out of private hatcheries and fishing ponds
California Association for Recreational Fishing v. California Department of Fish and Game
Contact: Damien M. Schiff and Joshua P. Thompson
Status: The Superior Court entered an adverse judgment on Oct. 18, 2012. Notice of appeal filed Feb. 4, 2013. Opening brief on appeal filed.
The California Department of Fish and Game is moving forward with significant restrictions on fish stocking companies – including hatcheries and private fishing lakes and ponds – that threaten their ability to stay in business. The regulations are based on the very unscientific premise that stocked fish always and everywhere have negative effects on indigenous species and habitat.
PLF attorneys represent the California Association for Recreational Fishing (CARF) in challenging these regulations. CARF is a public interest organization whose members include private fish hatcheries and fishing lake operators as well as property owners and recreational fishermen and women, as well as small businesses that rely on recreational fishing for their livelihood.
PLF’s lawsuit is based on two main arguments:
- The Department’s enforcement of various private fish stocking permitting protocols and limitations constitute underground regulations in violation of the California Administrative Procedure Act.
- The Department’s regulatory proposal to the California Fish and Game Commission to eliminate exemptions for permitting requirements for private fish stocking, and substantially to increase requirements for new and renewed private fish stocking permits, exceed the Department’s statutory and regulatory authority.
The background facts are as follows:
A few years ago, a coalition of environmental groups successfully sued the Department under the California Environmental Quality Act (CEQA), contending that the Department had violated CEQA because it had never assessed the environmental impacts of the Department’s operation of several fish hatcheries throughout California. Pac. Rivers Council v. Cal. Dep’t of Fish and Game, Sac. Sup. Ct. No. 06CS01451. On remand, the Department produced an environmental impact report (EIR) that went beyond the court’s mandate by analyzing not just the effects of Department-run hatcheries, but also the effects of private fish stocking operations.
The new EIR, issued in early 2010, concluded that, as currently regulated, private fish stocking has a significant impact on the environment. To mitigate that impact, the EIR proposed a number of new limitations and protocols on the existing private fish stocking permitting regime, among them the elimination of the regulatory exception to the permitting requirement for certain fish species, and the requirement that all new permits be subject to the decision protocol set forth in the EIR’s Appendix K. That protocol requires the denial of the permit application if the fish stocking would have significant adverse effects on certain “decision” species, i.e., species that are not necessarily endangered or threatened under federal or state law but that were arbitrarily selected by the Department in drafting the EIR.
The PLF-CARF lawsuit alleges that the Department was without authority to enforce the mitigation measures and protocols recommended by the EIR.