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Center For Biological Diversity v. Department of Fish and Wildlife

California Court of Appeal, Third District

February 10, 2015


APPEAL from a judgment of the Superior Court of Sacramento County, Nos. 06CS01451, 34-2010-80000588CUWMGDS, 34-2010-80000566CUWMGDS, Lloyd G. Connelly, Judge.

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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, Rebecca Harrington; Pacific Legal Foundation, M. Reed Hopper, Damien M. Schiff, Joshua P. Thompson, and Jonathan Wood for Plaintiff and Appellant California Association for Recreational Fishing.

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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

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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 cases 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 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,

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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

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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 of 1973. (50 C.F.R. § 223.203(b)(5) (2014); 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 management plans must be approved by the National Marine Fisheries Service (NMFS), and as of January 2010, none prepared for California waters had been approved. In the interim, hatcheries that have draft hatchery genetic management plans are following them, and the Department and the NMFS continue to develop guidance and protocols for hatchery operations.

In 2005, the Legislature created a specific fund in the state treasury to finance the Department’s hatchery and stocking enterprise. (Stats. 2005, ch. 689, § 1 [AB 7], pp. 5439-5441 [enacting Fish & G. Code, § 13007].) The Legislature directed that fund proceeds be used by the Department in part to attain specific hatchery production goals. It initially required the Department to attain a goal of stocking 2.25 pounds of trout for each sport fishing license sold the previous year. (Ibid.) By July 2009, the statute required the Department to attain a goal of stocking 2.75 pounds of trout for each sport fishing license sold. (Stats. 2008, ch. 350, § 1, p. 2735.) In 2007, more than two million fish licenses were sold, translating into a goal of stocking more

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than five million pounds of trout. By comparison, in 2008, the Department actually stocked 4.3 million pounds of trout.

In 2006, plaintiff Center for Biological Diversity (the Center) sued the Department, claiming the hatchery and stocking enterprise did not qualify for a categorical exemption from CEQA, and seeking a writ of mandate compelling the Department to review its hatchery and stocking enterprise in an EIR. That same year, the Department announced it would prepare an “environmental document describing impacts” of its hatchery and stocking enterprise and the protocols it used to determine where fish would be stocked, but it still contended the enterprise was exempt from CEQA.

In 2007, the trial court granted the Center’s petition for writ of mandate. It concluded the hatchery and stocking enterprise was not categorically exempt from CEQA because it likely caused significant environmental impacts. It ordered the Department to comply with CEQA and prepare an EIR on its enterprise. However, the court refused to enjoin the Department from operating the enterprise pending completion of the EIR. The Department did not appeal this judgment.

In 2008, the Department moved to modify the judgment to receive additional time to prepare the EIR. The Department had expanded the EIR’s scope beyond its hatchery and stocking enterprise to include other Department hatchery programs in part supported by federal funds that involved hatchery fish in other locations and from other vendors. That expansion required the EIR to be a combined EIR/environmental impact statement (EIS) under federal environmental law, and the Department did not have sufficient funds at the time to pay the estimated $1.8 million needed to complete the review. (For ease of reference, we will refer to the EIR/EIS as an EIR.)

The trial court granted the Department’s motion and extended the time to complete the EIR. However, it also ordered the Department to suspend stocking nonnative fish in fresh water bodies where surveys showed the presence of sensitive native aquatic or amphibian species, or where such surveys had not been completed.

The Department certified the final EIR in January 2010. It is a significant effort. It includes approximately 650 pages of discussion and an additional 1, 800 pages of appendices, of which more than 1, 250 pages are responses to public comments. The record also includes the reference material the Department relied upon to prepare the EIR, which totals some 43, 700 pages.

The EIR has a broad scope. It is meant to cover the Department’s entire fish hatchery and stocking enterprise statewide. It also analyzes three other

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programs the Department administers: the Fishing in the City program (which provides fishing opportunities in urban areas), the Classroom Aquarium Education Project (which provides school children with opportunities to see fish hatch and grow), and the private stocking permit program (by which the Department authorizes fish stocking by private aquaculture facilities in private and public lakes and ponds).

Of significance here, the Department selected its current hatchery and stocking operations from 2004 through 2008 as an environmental baseline for its analysis in the EIR. Against this baseline, the EIR analyzed the enterprise’s impacts on hydrology, water supply, and water quality; biological resources; recreation and economics; and cultural resources. The EIR identified more than 200 impacts on biological resources, many of which were significant.

The EIR found trout stocking adversely impacted a number of frog species. Stocked fish may directly prey upon some native amphibians and reptiles, and may cause ecological changes that affect the competition for resources between fish and amphibians. To mitigate these impacts to less than significant, the EIR recommended the Department utilize a new protocol to determine whether to stock an inland water body with trout. Under the protocol, referred to as a pre-stocking evaluation protocol (the evaluation protocol), Department biologists would evaluate each stocking location within the range of a decision species in a stepwise fashion to determine whether interactions between stocked trout and decision species may occur, and to evaluate whether stocking may significantly impact the species. If the biologist determines a significant impact is likely, the Department will cease stocking at that location unless and until it develops and implements an aquatic biodiversity management plan for that location. If decision species are not present, stocking may proceed. A positive stocking determination is valid for five years unless new information necessitates a new evaluation protocol be performed.

The EIR also found that stocking hatchery salmon and steelhead in waters with wild salmon and steelhead significantly and, in some cases, unavoidably impacted wild populations of native anadromous fish. Stocked fish may prey on and compete with some wild fish populations. They may also cause adverse effects on the long-term genetic fitness and diversity of some wild populations. To mitigate these impacts to the extent possible, the EIR called for the Department to continue to develop an expanded hatchery genetic management plan process to govern operation of the salmon and steelhead hatcheries in order to mitigate impacts on wild populations of native anadromous fish. The hatchery genetic management plan process would include developing and implementing with the NMFS a comprehensive plan to

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mitigate the impacts and protect decision species, and establishing an independent review panel for the hatcheries.

The EIR also determined stocking for other Department programs could adversely impact decision species. Stocking for the Fishing in the City program could cause some significant impacts. Stocking activities for this program introduce hatchery fish and warm water fish into some water bodies that may contain decision species, resulting in some instances of predation and competition for resources, the introduction of pathogens to native amphibian populations, and the spread of invasive species. To mitigate these impacts, the EIR proposed Department biologists use a protocol analogous to the evaluation protocol, called the private stocking permit evaluation protocol, prior to stocking any water body for the Fishing in the City program. If biologists identify any amphibians susceptible to pathogens in the water, they will not stock at that location. The EIR also proposed requiring private aquaculture facilities who participate in the program to monitor and report for invasive species in their stocks on a quarterly basis.

Approval of private stocking permits could also cause similar impacts to decision species. To mitigate these impacts, the EIR proposed that before the Department approves a private stocking permit, a Department biologist visit the water body proposed to be stocked and perform the private stocking permit evaluation protocol to determine if the body hosts any decision species, and, if it does, whether stocking in that body would significantly impact that species. If it would, the Department would not approve the permit application.

The EIR considered three project alternatives: (1) continue the existing hatchery and stocking enterprise without change, which the EIR treated as the no project alternative required by CEQA; (2) continue to operate the enterprise but in compliance with the mitigation measures proposed by the EIR to minimize the enterprise’s impacts on the environment, including use of evaluation protocols and aquatic biodiversity management plans for trout stocking and hatchery genetic management plans for salmon and steelhead stocking; and (3) permanently operate the enterprise as limited by the trial court during the EIR process, ceasing all stocking in fresh water lakes where decision species exist. The EIR named the second alternative as the preferred alternative.

The EIR did not consider closing the hatcheries or eliminating trout stocking as alternatives. It did not because ceasing operations did not meet what the Department believed was a statutory mandate under Fish and Game Code section 13007 to operate hatcheries to provide fish to meet recreational demand. Ceasing to stock would also place considerable pressure on native

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and wild stocks that already exist, and would eliminate a large portion of recreational fishing in the state.

In certifying the EIR, the Department approved the second alternative as the project it would undertake, and it adopted findings, a statement of overriding considerations, and a mitigation monitoring and reporting plan, as required by CEQA. As part of adopting the mitigation plan, the Department approved using the evaluation protocol and aquatic biodiversity management plans to mitigate impacts on native trout, the expanded hatchery genetic management plan process to mitigate impacts on wild salmon and steelhead, and the proposed protocols and monitoring and reporting requirements to mitigate impacts caused by the Fishing in the City program and the private stocking permit program.

The Center, plaintiffs Californians for Alternatives to Toxics et al. (collectively, the Center), and plaintiff California Association for Recreational Fishing (the Association) each petitioned for a writ of mandate against the Department and its certification of the EIR. The Center alleged the EIR did not comply with CEQA. The Association alleged the Department imposed the mitigation measures on the Fishing in the City Program and the private stocking permit program as underground regulations in violation of the APA.

The trial court denied each of the petitions. The petitioners appealed, and we consolidated the matters for purposes of decision and argument.



Standard of Review

Our standard of review is as follows:

“In reviewing an agency’s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ (Pub. Resources Code, § 21168.5.) Such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ ([Pub. Resources Code, ] § 21168.5; see Western States Petroleum Assn. v. Superior Court [(1995)] 9 Cal.4th [559, ] 568 [38 Cal.Rptr.2d 139, 888 P.2d 1268]; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393 [253 Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights I).)

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“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] We therefore resolve the substantive CEQA issues... by independently determining whether the administrative record demonstrates any legal error by the [Department] and whether it contains substantial evidence to support the [Department’s] factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at pp. 426-427, fns. omitted.)


Cases Nos. C072486 and C073011

The Center contends the Department did not comply with CEQA when it prepared and certified the EIR because it allegedly and improperly:

1. Used a program EIR to approve future site-specific stocking decisions without performing site-specific review;

2. Deferred the formulation of mitigation measures for each future stocking decision to future use of the evaluation protocol, the aquatic biodiversity management plans, and the hatchery genetic management plans;

3. Relied upon the current hatchery and stocking enterprise as the environmental baseline; and

4. Omitted sufficient consideration of a reasonable range of project alternatives, including a no project alternative of no stocking, and a sufficient explanation for possible alternatives it chose not to review.

We address, and reject, each of these contentions.

A. The EIR’s level of analysis

The Center contends the Department improperly used a program EIR as a project or site-specific EIR. It argues the EIR’s level of review is insufficient to approve future stocking decisions because it does not contain site-specific environmental analysis. As a result, no further CEQA process is allegedly ...

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