Coastside Fishing Club v. Cal. Fish & Game Comm'n

215 Cal.App.4th 397

155 Cal.Rptr.3d 426

COASTSIDE FISHING CLUB, Plaintiff and Appellant,

v.CALIFORNIA FISH AND GAME COMMISSION, Defendant and Respondent.

D061121

Court of Appeal, Fourth District, Division 1, California.

Filed April 15, 2013

Affirmed.

See 9 Witkin, Cal. Procedure (5th ed. 2008) Administrative Proceedings, § 125.

APPEAL from an order of the Superior Court of San Diego County, Ronald S. Prager, Judge. Affirmed. (Super. Ct. No. 37–2011–00084611–CU–WM–CTL)

Allen Matkins Leck Gamble Mallory & Natsis, David Duval Cooke, San Francisco, Marvin Earl Garrett, Los Angeles, Kathryn Diane Horning, San Diego; Law Office of Marc Mager Gorelnik and Marc Mager Gorelnik, for Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney General, Carol A. Squire, Deputy Attorney General, for Respondent.

O'ROURKE, J.

Plaintiff Coastside Fishing Club (Coastside) appeals an order denying its petition for a writ of mandate directing the California Fish and Game Commission (the Commission) to vacate its regulations that create Marine Protected Areas (MPAs) and Marine Managed Areas (MMAs) in state waters of an area of the Pacific Ocean known as the North Central Coast study region. Coastside contends the trial court erred in denying its petition on the ground it failed to exhaust its administrative remedies and in ruling, on the merits, that the Commission acted within its statutory authority in adopting the regulations for the North Central Coast region (NCC regulations). We conclude the court erred in applying the doctrine of exhaustion of administrative remedies, but correctly ruled that the Commission acted within its statutory authority in adopting the NCC regulations. Accordingly, we affirm.

STATUTORY BACKGROUND

Marine Life Protection Act

In 1999 the Legislature enacted the Marine Life Protection Act (MLPA). (Fish & G.Code, § 2850 et seq.) The Legislature declared that “California's marine protected areas (MPAs) were established on a piecemeal basis rather than according to a coherent plan and sound scientific guidelines.[¹ ] Many of these MPAs lack clearly defined purposes, effective management measures and enforcement. As a result, the array of MPAs creates the illusion of protection while falling far short of its potential to protect and conserve living marine life and habitat.” ( Fish & G.Code, § 2851, subd. (a).) Thus, the main objective of the MLPA was to “modify the existing collection of MPAs to ensure that they are designed and managed according to clear, conservation-based goals and guidelines that take full advantage of the multiple benefits that can be derived from the establishment of marine life reserves.” ( Fish & G.Code, § 2851, subd. (h).)

The MLPA requires the Commission to adopt a “Marine Life Protection Program” with specified goals designed to protect marine life (Fish & G.Code, § 2853), and to “adopt a master plan that guides the adoption and implementation of the Marine Life Protection Program ... and decisions regarding the siting of new MPAs and major modifications of existing MPAs.” (Fish & G.Code, § 2855, subd. (a).) The MLPA directs the Department of Fish and Game ² to prepare, or contract for the preparation of, the master plan and to convene “a master plan team to advise and assist in the preparation of the master plan, or hire a contractor with relevant expertise to assist in convening such a team.” ( Fish & G.Code, § 2855, subd. (b)(1).) The master plan team members must “have expertise in marine life protection and ... be knowledgeable about the use of protected areas as a marine ecosystem management tool.” ( Fish & G.Code, § 2855, subd. (b)(2).) The team is to include staff from the DFG, the Department of Parks and Recreation, and the State Water Resources Control Board. ( Fish & G.Code, § 2855, subd. (b)(3)(A).) Five to seven team members must be scientists ( Fish & G.Code, § 2855, subd. (b)(3)(B)), and the DFG is authorized to “engage other experts to contribute to the master plan, including scientists, geographic information system (GIS) experts, and commercial and recreational fishermen, divers, and other individuals knowledgeable about the state's underwater ecosystems, the history of fishing effort or MPA management, or other relevant subjects.” ( Fish & G.Code, § 2855, subd. (b)(5).)

One of the main components of the master plan is “[r]ecommended alternative networks of MPAs, including marine life reserves in each biogeographical region that are capable of achieving the goals [of the MLPA].” (Fish & G.Code, § 2856, subd. (a)(2)(D).) The DFG is required to “convene, in each biogeographical region and to the extent practicable near major working harbors, siting workshops, composed of interested parties, to review the alternatives for MPA networks and to provide advice on a preferred siting alternative.” (Fish & G.Code, § 2857, subd. (a).) Following public review, at least three public meetings, and appropriate modifications to the draft master plan, the DFG was required to submit, on or before April 1, 2005, a proposed final master plan to the Commission. (Fish & G.Code, § 2859, subd. (b).) However, the DFG was unable to meet that statutory time limit. (See Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1196–1197, 71 Cal.Rptr.3d 87 ( Coastside ).) Fish and Game Code section 2861, subdivision (b), provides that nothing in the MLPA “restricts any existing authority of the [DFG] or the [C]ommission to make changes to improve the management or design of existing MPAs or designate new MPAs prior to the completion of the master plan.” ³

Marine Managed Areas Improvement Act

In 2000, one year after it enacted the MLPA, the Legislature passed the Marine Managed Areas Improvement Act (Pub. Resources Code ⁴, §§ 36600–36900) (Improvement Act). An MMA is statutorily defined as “a named, discrete geographic marine or estuarine area along the California coast designated by law or administrative action, and intended to protect, conserve, or otherwise manage a variety of resources and their uses. The resources and uses may include, but are not limited to, living marine resources and their habitats, scenic views, water quality, recreational values, and cultural or geological resources.” (§ 36602, subd. (d).) ⁵ The Legislature noted that the array of state MMAs existing at the time it passed the Improvement Act was the “result of over 50 years of designations through legislative, administrative, and statewide ballot initiative actions, which [had] led to 18 classifications and subclassifications of these areas.” (§ 36601, subd. (a)(4).)

A report prepared by a State Interagency Marine Managed Areas Workgroup indicated that the MMAs had “evolved on a case-by-case basis, without conforming to any plan for establishing MMAs in the most effective way or in a manner which ensures that the most representative or unique areas of the ocean and coastal environment are included.” (§ 36601, subd. (a)(5).) The report also stated that California's MMAs did not comprise an organized system because “the individual sites [were] not designated, classified, or managed in a systematic manner[,]” and many of the MMAs lacked “clearly defined purposes, effective management measures, and enforcement.” (§ 36601, subd. (a)(6).) The Legislature found that this array of MMAs created the illusion of a comprehensive system of management while it actually “[fell] short of its potential to protect, conserve, and manage natural, cultural, and recreational resources along the California coast.” (§ 36601, subd. (a)(7).) Designation of MMAs and subsequent adoption of regulations without adequate consideration given to overall classification objectives had “contributed to fragmented management, poor compliance with regulations, and a lack of effective enforcement.” (§ 36601, subd. (a)(9).)

Thus, the Legislature's express intent was that “[w]ith the single exception of state estuaries, ... the classifications currently available for use in the marine and estuarine environments of the state shall cease to be used and that a new classification system shall be established, with a mission, statement of objectives, clearly defined designation guidelines, specific classification goals, and a more scientifically-based process for designating sites and determining their effectiveness.” (§ 36601, subd. (b).) The Legislature declared that “[t]he mission of the state MMA system is to ensure the long-term ecological viability and biological productivity of marine and estuarine ecosystems and to preserve cultural resources in the coastal sea....” (§ 36620.) The Legislature found and declared a need to redesign California's MMAs to establish and manage a system using science and clear public policy directives to achieve the objectives of conservation, education and research, sustainable use of marine resources, and providing opportunities for public enjoyment of natural and cultural marine and estuarine resources. ( Ibid.) Under the new classification system, there are six MMA classifications: (1) state marine reserves, (2) state marine parks, (3) state marine conservation areas, (4) state marine cultural preservation areas, (5) state marine recreational management areas, and (6) state water quality protection areas. (§§ 36602, subd. (d) & 36700 [defining the six classifications].) State marine reserves, state marine parks, and state marine conservation areas are also statutorily designated as MPAs. (§ 36602, subd. (e).)

The Improvement Act directed the Secretary of the California Resources Agency (Resources Agency) ⁶ to establish a “State Interagency Coordinating Committee” (Coordinating Committee), consisting of representatives from various state agencies with jurisdiction or management interests over MMAs, including the DFG, Department of Parks and Recreation, California Coastal Commission, State Water Resources Control Board, and State Lands...