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Coastside Fishing Club v. California Fish and Game Commission

April 15, 2013

COASTSIDE FISHING CLUB, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA FISH AND GAME COMMISSION, DEFENDANT AND RESPONDENT.



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

The opinion of the court was delivered by: O'rourke, J.

CERTIFIED FOR PUBLICATION

Affirmed.

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.[*fn1 ] 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*fn2 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 (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."*fn3

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*fn4 , §§ 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).)*fn5 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)*fn6 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 Commission. (§ 36800.) Section 36800 provides that the Coordinating Committee "shall review proposals for new or amended MMAs to ensure that the minimum required information is included in the proposal, to determine those state agencies that should review the proposal, and to ensure consistency with other such designations in the state. The committee shall also serve to ensure the proper and timely routing of site proposals, review any proposed site-specific regulations for consistency with the state system as a whole, and conduct periodic reviews of the statewide system to evaluate whether it is meeting the mission and statement of objectives." (Ibid.) The Coordinating Committee is also responsible for reclassifying any MMA in existence on January 1, 2002, that has not been reclassified in accordance with the MLPA, with the directive that the reclassification process "shall occur to the extent feasible in conjunction and consistent with the MMA master planning process created pursuant to the [MLPA]." (§ 36750.) The existing MMAs must be reclassified under the classification system described in section 36700, which defines the Improvement Act's six MMA classifications noted above.

The Coordinating Committee and appropriate "managing agencies"*fn7 were directed to cooperate to develop, on or before January 1, 2002, "[d]resignation guidelines based on the classification goals adopted for the state system of MMAs . . . ." (§ 36850.) The designation guidelines "shall be used to provide a general sense of requirements for designating a site in any particular classification, and may include characteristics such as uniqueness of the area or resource, biological productivity, special habitats, cultural or recreational values, and human impacts to the area. These designation guidelines shall be provided on a standard set of instructions for each classification." (Ibid.) The Coordinating Committee was also directed to establish, on or before January 1, 2002, the "standard set of instructions for each classification to guide organizations and individuals in submitting proposals for designating specific sites or networks of sites." (§ 36870.) Section 36900 provides that "[i]ndividuals or organizations may submit a proposal to designate an MMA directly through the [Coordinating Committee] or an appropriate designating entity. Proposals submitted to a designating entity shall be forwarded to the [Coordination Committee] to initiate the review process."

Concurrently with the Improvement Act, the Legislature amended Fish and Game Code sections 1580, and enacted Fish and Game Code sections 1590 and 1591. Fish and Game Code section 1580 had previously authorized the DFG and the Commission to establish terrestrial, fresh water, and marine ecological reserves. The Legislature amended Fish and Game Code section 1580 to exclude marine reserves from the scope of that statute,*fn8 and passed Fish and Game Code section 1590, which authorized the Commission to "designate, delete, or modify state marine recreational management areas established by the commission for hunting purposes, state marine reserves, and state marine conservation areas, as delineated in subdivision (a) of Section 36725 of the [Improvement Act]." (Fish & G. Code, § 1590.)*fn9 Fish and Game Code section 1591 provides that any proposals for MPAs made after January 1, 2002, must follow the guidelines set forth in the Improvement Act, and that pursuant to section 36750 of the Improvement Act, all MPAs in existence on that date and not reclassified in accordance with the MLPA must be reclassified as a state marine reserve, state marine park, or state marine conservation area. (Fish & G. Code, § 1591, subd. (a).)

FACTUAL AND PROCEDURAL BACKGROUND

The NCC regulations at issue in this appeal were the result of a "public-private partnership," the genesis of which is discussed in Coastside, supra, 158 Cal.App.4th 1183. The DFG was unable to meet the statutory time limit for submitting a proposed final master plan to the Commission under the MLPA due to inadequate funding. (Coastside, supra, at pp. 1196-1198.) Recognizing the DFG's long history of having insufficient funding to meet its statutory mandates, the Legislature declared that "[w]hile revenues have been declining, the [DFG's] responsibilities have increased in order to protect public trust resources in the face of increasing population and resource management demands. The [DFG's] revenues have been limited due to a failure to maximize user fees and inadequate non-fee-related funding. The limited department revenues have resulted in the inability of the department to effectively provide all of the programs and activities required under this code and to manage the wildlife resources held in trust by the department for the people of the state." (Fish & G. Code, § 710.5, subd. (a).) Thus, the Legislature declared that "[t]o fulfill its mandates, the [DFG] must secure a significant increase in reliable funding, in addition to user fees." (Fish & G. Code, § 710.5, subd. (c).) Toward that end, the Legislature declared its intent that the DFG "shall cooperate with the Legislature, recreational users, conservation organizations, the commercial fishing industry, and other interested parties to identify and propose new alternative sources of revenue to fund the department's necessary marine conservation, restoration, and resources management, and protection responsibilities." (Fish & G. Code, § 710.7, subd. (c).)

In 2004, after it became clear that the DFG lacked sufficient resources to meet its statutory deadline to prepare the draft master plan, the Resources Agency, the DFG, and Resources Legacy Foundation (RLF), a private nonprofit foundation, entered into a memorandum of understanding (MOU) to facilitate the implementation of the MLPA by pursuing a set of stated objectives referred to as the California Marine Life Protection Act Initiative (Initiative or MLPA Initiative). In a written "Conceptual Overview" of the Initiative that was attached as an exhibit to the MOU, those objectives were identified as submitting the DFG's "Master Plan Framework" to the Commission by May 2005, preparing a comprehensive strategy for long-term funding of planning, management and enforcement of MPAs, designing and submitting the DFG's draft proposal for alternative networks of MPAs in an area along the central coast to the Commission by December 2005, developing recommendations for coordinating the management of marine protected areas with the federal government by November 2006, and securing agreement and commitment among state agencies with marine protected area responsibilities by November 2006 to complete statewide implementation of the Master Plan by 2011. The MOU listed the same objectives.

The conceptual overview of the Initiative stated that the Initiative would require leadership, policy advisors, stakeholder input, general public participation, science, resource management and technical expertise, interagency coordination, public-private partnership, and phased design and implementation. Regarding public-private partnership, the overview stated: "Due to the limited staffing and funding resources of the Resources Agency and [the DFG], this proposal is dependent upon supplementing public funding with private resources to enhance the state's capacity to accomplish the science, analysis, planning, and coordination necessary to achieve the objectives on time. While private funding will support much of the costs of the Initiative, the work will be open and transparent."

The MOU adopted a phased approach to the MLPA master plan, stating that "[b]ased on its prior and ongoing efforts to prepare a draft Master Plan, the [DFG] has determined that it will be most effective to prepare the Master Plan in phases. Specifically, the [DFG] intends as part of the first phase to prepare a Master Plan Framework that will then be used to develop networks of MPAs within individual regions." The MOU stated the Master Plan Framework would "include a timeline to design and implement MPAs in phases by region, beginning with the development of alternative networks of MPAs for one specific region, namely, an area along the central coast, as part of the first phase." The MOU provided that the Secretary for the Resources Agency would appoint seven to ten unpaid advisors to a "California MLPA Blue Ribbon Task Force" to, among other duties, "oversee the preparation of the draft Master Plan Framework and the proposal for alternative networks of MPAs in an area along the central coast for the [DFG] pursuant to the MLPA and this MOU."

The process implemented by the first MOU resulted in the Commission's approval of a set of MPAs for the central coast region in April 2007. The regulations establishing those MPAs became effective in September 2007. The first MOU process also resulted in the Commission's adoption of a "Revised Draft Master ...


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