April 4, 2013

PLF appeals decision upholding Department of Fish and Game’s illegal fish stocking regulations

By Jonathan Wood Attorney

Today, PLF filed an appeal on behalf of the California Association for Recreational Fishing, challenging regulations imposed illegally by the California Department of Fish and Wildlife.  These regulations threaten the ability of private hatcheries and private fishing lakes and ponds to remain in business.  They also deprive the people of the state, particularly urban children, of opportunities to fish.

As we’ve blogged before, the case arises out of an environmental impact report (EIR) that the Department prepared to determine the environmental effects of stocking fish in the state’s own hatcheries.  Yet the Report also radically changed the permitting process for private fish stocking.  Under California law, one must obtain a permit from the Department in order to stock fish, and the Department must grant the permit unless regulations adopted by the California Aquaculture Commission would prohibit the stocking.  In the EIR, the Department changed this regime by prohibiting all stocking which would have an adverse effect on “decision species.”  More than half of these so-called “decision species” are not listed under any statute or regulation, but were included by agency whim.  The EIR also requires private hatcheries to engage in continuous and expensive monitoring for invasive species, the results of which must be reported to the Department for use in its investigations and permitting decisions.

Under the California Administrative Procedure Act, agencies must follow notice and comment procedures before adopting regulations.  These procedures not only protect the people that will be subject to the regulation, but benefit everyone by ensuring that agencies only adopt regulations once the consequences have been brought to light.  Any regulation that is adopted without following these procedures is an “underground regulation” and void.

Here, the Department of Fish and Game failed to follow the notice and comment procedures when it adopted the fish stocking regulations in the EIR.  The court below excused its failure, finding that, because it was acting pursuant to “long-standing objectives of public policy,” the Department didn’t have to comply with the notice and comment procedures.  In our opening brief, we explain why these underground regulations cannot be excused for any reason, and certainly not for a reason as amorphous as “long-standing objectives of public policy.”  The Legislature, in enacting the Administrative Procedure Act, decided that the notice and comment procedures do not conflict with public policy.  The courts should not ignore this judgment.

If the Department had complied with the notice and comment procedures, it might have learned about the impacts that these new regulations would have on the private fishing industry.  According to CARF Board Member Craig Elliott, “The Court’s decision, if upheld on Appeal, will have a devastating economic impact on recreational fishing, aquaculture, jobs and tourism. [The] decision sends a message to Californians that unelected bureaucrats, and not the State Legislature, can develop regulations with no public oversight.  That’s not going to sit well with a public that seems to be losing its freedoms and liberties on a daily basis.  There are times in life when you must fight, and this is one of those times; fishing is as American as apple pie.”

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