Pacific Legal Foundation attorneys represent the California Association for Recreational Fishing in a challenge to a variety of “underground regulations” that the California Department of Fish and Game is imposing on those who seek permits to stock lakes, ponds, and the like with fish. Under California law, one must obtain a permit from the Department in order to place fish into the “waters of the state.” Traditionally, obtaining such permits has been relatively easy: fill out the application, check the appropriate boxes, and pay the fee. But beginning in 2010, the Department changed its permitting program by requiring that permit applicants complete a prohibitively expensive environmental impact analysis to determine the effects of the planned fish stocking on a list of arbitrarily selected “decision species.”
Under this new permitting protocol, if the proposed fish stocking will have a significant adverse effect on one of these decision species, then the permit must be denied. Remarkably, the Department did not follow any of the notice and comment procedures required by the California Administrative Procedure Act before implementing this radical, substantive change to the private fish stocking permitting regime. Thus, in PLF’s lawsuit, we challenge the new permitting protocol on the ground that it is an “underground regulation” and therefore null and void.
Just last Friday, the Department filed its opposition to our motion for judgment. Interestingly, the Department does not deny that it is currently imposing the new permitting protocol. Rather, the Department contends that the protocol is a mere internal agency management practice exempt from the APA. Our reply brief is due next month, and the hearing will be in April.