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Outfitter Properties, LLC, et al v. Wildlife Conservation Board et al

June 26, 2012

OUTFITTER PROPERTIES, LLC, ET AL., PLAINTIFFS AND APPELLANTS,
v.
WILDLIFE CONSERVATION BOARD ET AL., DEFENDANTS AND RESPONDENTS; DEPARTMENT OF FISH AND GAME, REAL PARTY IN INTEREST AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Sacramento County, Timothy M. Frawley, Judge. (Super. Ct. No. 34200880000037CUWMGDS)

The opinion of the court was delivered by: Mauro , J.

CERTIFIED FOR PUBLICATION

Affirmed.

The Wildlife Conservation Board (Board) paid $9.98 million from the Habitat Conservation Fund to the federal Bureau of Reclamation for the Battle Creek Salmon and Steelhead Restoration Project. Outfitter Properties, LLC and Rocky Springs Ranch, LLC (collectively Outfitter) subsequently filed a petition for writ of mandate seeking to vacate the Board's expenditure decision. The trial court denied the petition.

Outfitter contends on appeal that (1) Fish and Game Code*fn1 section 2791, subdivision (d) (section 2791(d)) limits expenditures from the Habitat Conservation Fund to no more than $6 million over any 24-month period; (2) the Board expenditure violated the $2 million annual limit on allocations to state agencies set forth in section 2791, subdivision (f) (section 2791(f)); (3) the Legislature cannot amend the $6 million and $2 million limits without the approval of four-fifths of the members of both houses of the Legislature; and (4) the trial court erred in considering documents that were not considered by the Board in making its expenditure decision.

We conclude (1) section 2791(d) does not establish a $6 million expenditure limit but instead gives the Board limited discretion to make expenditures; (2) the Board expenditure did not violate the $2 million limit on allocations to state agencies because the expenditure was paid to the federal Bureau of Reclamation; (3) the 2005 Budget Act did not amend section 2791(d) or section 2791(f); and (4) the extra-record evidence was admissible to assist the trial court in deciding Outfitter's challenge to the expenditure.

We will affirm the judgment.

BACKGROUND

California salmon and trout populations have declined in recent decades partly because water projects have blocked anadromous*fn2 fish access to natal streams. Chinook salmon and steelhead trout have been listed as threatened or endangered species.

Battle Creek, a tributary of the Sacramento River located in Tehama and Shasta Counties, is an important habitat for anadromous salmon and trout because of its geology and hydrology. Outfitter owns real property adjoining portions of the south fork of Battle Creek in Tehama County. Pacific Gas and Electric Company (PG&E) owns and operates the Battle Creek Hydroelectric Project, which includes diversion facilities on the north and south forks of Battle Creek.

Recognizing the unique characteristics of Battle Creek and its importance to the restoration of salmon and trout populations in the Sacramento River, the National Marine Fisheries Service, federal Bureau of Reclamation, U.S. Fish and Wildlife Service, California Department of Fish and Game (Fish and Game) and PG&E signed a memorandum of understanding in 1999 (the 1999 MOU) for the Battle Creek Chinook Salmon and Steelhead Restoration Project (the Restoration). The Restoration would modify PG&E's Battle Creek hydroelectric operation by, among other things, installing fish screens and fish ladders, decommissioning certain dams, and installing connections and water conveyance facilities. The proposed changes aimed to improve fish passage on Battle Creek while minimizing the loss of energy production.

The parties to the 1999 MOU anticipated the Restoration would cost about $50.7 million, of which approximately $27.1 million would be provided by a federal grant. The federal Bureau of Reclamation would be the lead agency for construction and would authorize disbursements of federal funds for the Restoration. Fish and Game was not responsible for funding any component of the Restoration.

In 2007, however, Fish and Game applied to the Board for a $9.98 million grant from the Habitat Conservation Fund (Fund) because increased costs necessitated additional funds to complete the Restoration.*fn3 The grant would provide a portion of the necessary funding for a partnership project involving various public agencies and private entities, including the entities that signed the 1999 MOU, for the purpose of restoring salmon and trout habitat along 42 miles of Battle Creek and an additional six miles of tributaries in Tehama and Shasta Counties (the Partnership Project). The Partnership Project evolved from the Restoration described in the 1999 MOU.

On August 23, 2007, the Board approved the requested grant and subsequently paid $9.98 million from the Fund to the federal Bureau of Reclamation for the Partnership Project. The money had been collected under the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002 (Water Code, § 79500 et seq.), also known as Proposition 50.*fn4

Outfitter filed a petition for writ of mandate seeking to vacate the Board's expenditure decision.*fn5 The petition was asserted against the Board, the State of California, and John P. Donnelly, executive director of the Board. Fish and Game was named as a ...


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