Ctr. for Biological Diversity v. Dep't of Fish & Wildlife
| Citation | 234 Cal.App.4th 214,183 Cal.Rptr.3d 736 |
| Decision Date | 10 February 2015 |
| Docket Number | C072486,C072790,C073011 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff and Appellant, v. DEPARTMENT OF FISH AND WILDLIFE, Defendant and Respondent. California Association for Recreational Fishing, Plaintiff and Appellant, v. Department of Fish and Wildlife, Defendant and Respondent. Californians for Alternatives to Toxics et al., Plaintiffs and Appellants, v. Department of Fish and Wildlife, Defendant and Respondent. |
OPINION TEXT STARTS HERE
See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 832 et seq.
APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Affirmed in part and reversed in part. (Super.Ct. Nos. 06CS01451, 34–2010–80000588CUWMGDS, 34–2010–80000566CUWMGDS)
Environmental Law Clinic, Deborah A. Sivas, and Alicia E. Thesing, for Plaintiff and Appellant Center for Biological Diversity.
Alston & Bird, Maureen F. Gorsen, Shiraz D. Tangri, Los Angeles, Rebecca Harrington; Pacific Legal Foundation, M. Reed Hopper, Damien M. Schiff, Sacramento, Joshua P. Thompson, and Jonathan Wood, for Plaintiff and Appellant California Association for Recreational Fishing.
Wild Earth Advocates and Julia A. Olson, for Plaintiffs and Appellants Californians for Alternatives to Toxics et al.
Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Gavin G. McCabe, Randy L. Barrow, Russell B. Hildreth, and Marc N. Melnick, Deputy Attorneys General, for Defendant and Respondent.
Facing for the first time a requirement to review for environmental impacts its statutorily mandated fish hatchery and stocking enterprise that has been in operation for more than 100 years, California's Department of Fish and Wildlife (the Department) chose to use a program environmental impact report (EIR) to analyze the enterprise's impacts on a statewide basis. Instead of addressing impacts on specific locations the Department stocked, the EIR addressed the enterprise's continuing and potential impacts on individual species that could be located at many locations. The EIR formulated, and the Department adopted, protocols and plans for discovering site-specific impacts at each of the nearly 1,000 water bodies the Department stocks and the 24 hatcheries it oversees, and it committed to mitigating the impacts discovered from those reviews. If, through using the protocols, the Department discovered impacts that were not addressed in the EIR, the Department committed to review and mitigate those impacts as required by environmental law. The Department addressed unavoidable impacts in a statement of overriding considerations.
Because the stocking and hatchery enterprise was ongoing and mandated by statute, the EIR considered the existing enterprise exclusive of any proposed mitigation measures as the environmental baseline and as the no project alternative. It did not evaluate an alternative that would cease all stocking and hatchery operations. In addition to the ongoing operations, the EIR evaluated the ongoing enterprise as proposed to be mitigated and a project that further curtailed mountain lake stocking as alternatives.
The EIR also reviewed other Department stocking programs that involve private fish vendors. The EIR proposed, and the Department adopted as mitigation measures, new qualification requirements and monitoring and reporting obligations private vendors would have to satisfy if they wanted to continue to participate in the stocking programs.
In these appeals, we address whether the EIR complies with the California Environmental Quality Act (Pub. Resources, § 21000 et seq. (CEQA)). We also address whether the Department's imposition of these mitigation measures on private fish vendors violated the requirements of the Administrative Procedure Act (Gov.Code, § 11340 et seq. (the APA)).
In case Nos. C072486 and C073011, plaintiffs, Center for Biological Diversity and Californians for Alternatives to Toxics et al., respectively, argue the EIR is flawed because it (1) did not perform site-specific review for each site in the state the Department stocks with fish; (2) deferred forming mitigation measures to the future formulation of protocols and management plans; (3) relied on the current stocking enterprise as the environmental baseline; and (4) did not review a reasonable range of alternatives, including a no project alternative consisting of ceasing all hatchery and stocking operations. We disagree with the plaintiffs. Given the history, nature, and scope of the project under review, the Department did not abuse its discretion in the manner it organized the EIR, analyzed the project, and mitigated its numerous impacts. We affirm the trial court's judgment in these appeals.
In case No. C072790, plaintiff California Association for Recreational Fishing contends the Department violated the APA by imposing the qualification requirements and the monitoring and reporting obligations on private fish vendors without complying with the APA's notice and hearing procedures. We conclude each measure qualified as a regulation under the APA that the Department did not properly adopt as such. We reverse the trial court's judgment in this appeal.
Since the late 1800's, the State of California has constructed and operated fish hatcheries, and it has stocked millions of trout, salmon, and steelhead reared in those hatcheries into water bodies throughout the state. State statute mandates the Department implement and oversee this enterprise. (Fish & G.Code, §§ 1120, 1725 et seq., 13007.)1 The Department stocks millions of pounds of fish each year at close to 1,000 locations.
Currently, the Department operates 14 trout hatcheries and 10 salmon and steelhead hatcheries throughout the state. The trout hatcheries raise fish for stocking in inland waters to provide recreational opportunities for anglers, and to conserve and restore native fish species. The salmon and steelhead hatcheries provide salmon and steelhead to mitigate the loss of wild anadromous fish habitat and upstream spawning areas caused by dam construction, to mitigate fish loss at state-operated pumping facilities in the Sacramento–San Joaquin Delta, and to enhance native anadromous fish populations for recreational and commercial fishing.2
The hatchery and stocking enterprise predates CEQA. After CEQA's enactment in 1970, the Secretary of Natural Resources determined the Department's hatchery and stocking enterprise was categorically exempt from complying with CEQA. (CEQA Guidelines, § 15301, subd. (j).) 3 As a result, the Department did not conduct any type of environmental review for the enterprise.
During the past two decades, concerns arose regarding the hatchery and stocking enterprise's impact on native and wild animals and their habitat. Scientific evidence indicated frogs and other amphibians in high mountain lakes were more vulnerable to predation by stocked nonnative trout, contributing to declining amphibian populations. Scientific evidence also indicated planting hatchery salmonids led to genetic hybridization of wild and hatchery anadromous fish, reducing their genetic diversity and strength, and ultimately their populations.
In 2001, the Department began addressing these concerns. To assess the impact stocking high mountain lakes had on amphibians and other wildlife, the Department began surveying the lakes to determine the presence of several native amphibian and reptile species, fish species, and their habitat, and to assess watershed characteristics (the high mountain lakes project). These mountain lakes and streams were originally without fish, but they were extensively stocked with nonnative trout over the past century, to the extent that most of the lakes now have extant trout populations. The Department ceased stocking most high mountain lakes in the state until the surveys were conducted. As of January 2010, the Department had completed more than 16,000 surveys at approximately 11,000 sites.
The Department has used, and continues to use, the survey data to develop what it calls aquatic biodiversity management plans to govern stocking in mountain waters. Aquatic biodiversity management plans provide for maintaining recreational fisheries while recovering native animals, especially amphibians. They require future mountain lake stocking decisions to be based on the twin objectives of managing the lakes to maintain or restore native biodiversity and habitat quality, and providing for recreational opportunities considering historical and future use patterns. Under the aquatic biodiversity management plans, lakes with existing populations of endangered or threatened amphibian species and other species the Department believes may be vulnerable to harm from stocking, referred to as “decision species,” generally will no longer be stocked with fish. If decision species exist within two kilometers of a lake, the Department will assess fishing use and the feasibility of removing the trout from the lake to determine if the lake could be converted to a fishless condition in order to benefit the decision species. Others lakes will be managed for recreational angling. As of January 2010, there were aquatic biodiversity management plans completed or in draft for 27 watershed areas, or “management units.” 4
To address the impacts hatchery salmon and steelhead have on wild populations of native anadromous fish, the Department began preparing what are called hatchery genetic management plans, creatures of federal regulation under the federal Endangered Species Act. (50 C.F.R. § 223.203(b)(5); 16 U.S.C. § 1531 et seq.) Hatchery genetic management plans require the Department to change the ways in which it collects fish for spawning and releases hatchery fish in order to maintain genetic integrity and reduce interactions between wild and hatchery fish. Hatchery genetic...
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