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Courtesy of PLF:

This morning, the California Court of Appeal issued its long-awaited decision in California Association for Recreational Fishing v. Department of Fish & Wildlife. PLF represented California’s recreational fishing interests in a challenge to regulations adopted by the Department in an Environmental Impact Report it certified in 2010. The issue is that the Department is not permitted to adopt regulations through an Environmental Impact Report. Regulations must be passed pursuant to the California Administrative Procedure Act (APA).

There are many reasons for the APA requirements. For one, the APA gives the regulated public a chance to review and comment on proposed regulations, so that they are not caught completely off-guard by regulations affecting them. Additionally, the APA requires agencies to identify the significant economic impacts that will result from a regulation. It also requires agencies to cite the statutory authority for a proposed regulation. The list goes on. In a nutshell, the APA assures that when an agency adopts a regulation, the interests that will be most affected have an opportunity to shape those regulations.  Here, the Department ignored the APA, adopted regulations without any of the procedural safeguards, and expected the recreational fishing interests to simply abide its commands.

Represented by attorneys from PLF, the California Association for Recreational Fishing took the Department to court.  We argued three regulations were illegal, because they were adopted through an EIR and not pursuant to the APA. Today, the California Court of Appeal agreed. In a published decision, the court held that, “[w]e conclude the three measures are
underground regulations.”

Indeed, the court agreed with all of our arguments.  PLF challenged three regulations — called “mitigation measures” in the EIR — and all three regulations were declared illegal. The first mitigation measure, BIO-226, restricted the sites that could be stocked with fish for the Department’s Fishing in the City Program. The court held that BIO-226 was an underground regulation: “The Department should hear from the general public, as well as the citizens who operate fish stocking businesses and those who participate in the Fishing in the City program who will be affected by BIO-226, before it adopts and implements the measure.”

BIO-229 required that vendors selling selling fish for use in the Fishing in the City Program to continuously monitor their fish for invasive species and issue quarterly reports to the Department.  That too was an underground regulation according to the court: “If the Department wants to adopt such a rule for its Fishing in the City program, it needs to do so by regulation.”

Lastly, BIO-233b effectively prohibited the Department from issuing private fish stocking permits for any lake where the proposed stocking would affect a “decision species.”  The problem was that “decision species” included a litany of species that the enjoy no federal or state protections.  We tried in vain to identify the reason the Department decided to include 50 some species on its list of “decision species.”  Frankly, I don’t think the Department knew why it did it. Nevertheless, BIO-233b required denying a fish stocking permit if one of these species would be affected.  Fortunately, the court also ruled that BIO-233b was an underground regulation: “The Department’s interpretation is not the only interpretation it could apply to the regulation, nor does its interpretation essentially repeat the regulation. The regulation is silent regarding how it should be enforced.”

This was a very important decision for all Californians.  Of course, the recreational fishing industry is very pleased with the outcome. They no longer have to suffer under regulations that were imposed upon them without any input. Any future regulations affecting the Fishing in the City Program or private fish stocking permits will have to go through the APA to carry the force of law. But the decision is also important for ensuring that California agencies must follow the rule of law. This decision ensures that if agencies try to covertly adopt regulations without seeking input from the regulated public and following the requirements of the APA, their actions will be declared illegal.