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Environmental Law and Policy Alerts

San Diego Superior Court Upholds California Fish and Game Commission Regulations Pertaining to Marine Protected Areas, Rejects Arguments of Coastside Fishing Club
October 25, 2011 by Adam D. Link alink@somachlaw.com

On October 17, 2011, in United Anglers of Southern California v. California Fish and Game Commission, Case No. 37-2011-00084611-CU-WM-CTL, the San Diego County Superior Court finalized a tentative ruling upholding regulations that modified certain Marine Protected Areas (“MPAs”) in the north central coast region finding that the California Fish and Game Commission (“Commission”) had the statutory authority to promulgate such regulations and its actions were consistent with all other applicable laws.  Petitioners, citizen action groups, represented recreational and sport fishermen whose interests could be impacted by the adoption and implementation of regulations designating and modifying MPAs.  These regulations (hereafter the “NCC Regulations”) were adopted by the Commission in 2009, and were designed to meet the goals described in the Marine Life Protection Act (“MLPA”) for the north central coast of California.  More specifically, the NCC Regulations describe a preferred alternative approach to designating and redefining a total of 21 MPAs as well as certain Marine Managed Areas (“MMAs”) and special closures for the region.  Petitioners sought to have the Superior Court:  (1) set aside the NCC Regulations on the ground that the Commission lacked the statutory authority to adopt them; (2) declare that the Commission lacked the authority to adopt the NCC Regulations under the California Administrative Procedures Act (“APA”); and (3) declare that the Commission failed to obtain a coastal development permit from the California Coastal Commission prior to adopting the NCC Regulations, thereby invalidating the action.  The Superior Court found that each of these contentions was without merit, and ultimately upheld the Commission’s adoption of the NCC Regulations.  This decision could impact how other petitioners and courts view future challenges to marine life protection regulations to be adopted by the Commission, a process which is currently underway for certain south coast areas. 


The Marine Life Protection Act (Fish & G. Code, § 2850 et seq.) is an effort to reevaluate and redesign California’s existing system of MPAs using a regional approach and programmatic framework.  The NCC Regulations represent the regional implementation of the MLPA through planning processes, of which four coastal regions have been completed thus far.  Other directly related statutory schemes include the Marine Life Management Act of 1998, which created a broad programmatic framework for managing fisheries through a variety of conservation measures (including MPAs) as well as the Marine Managed Areas Improvement Act (“MMAIA”) of 2000, which was intended to standardize the designation of MMAs.  The Commission is a separate entity from the California Department of Fish and Game that is involved in the management of California’s fish and wildlife resources and has the authority to adopt proposed regulations such as the NCC Regulations when such efforts fall within its area of responsibility.  Petitioner Coastside Fishing Club is a group representing recreational fishermen affected by the implementation of the NCC Regulations, while Petitioner United Anglers of Southern California is a non-profit organization representing sport fishermen. 


Commission’s Assertions:  Exhaustion of Administrative Remedies, Estoppel, and Waiver

The Commission made several assertions regarding the validity of Petitioners’ claims, including that Petitioners failed to exhaust their administrative remedies by failing to raise the substance of their challenges during the rulemaking process.  The Superior Court rejected the Commission’s arguments in this regard, however, noting that none of the statutes cited by the Commission as authority to adopt the NCC Regulations provides an administrative remedy, and thus there was no exhaustion required.  The Commission also asserted that Petitioners’ claims were barred by the doctrines of estoppel and waiver, claiming that Petitioners’ advocacy for one of the proposed alternatives presented during the rulemaking process estopped Petitioners from making their present claims.  The rationale behind such an argument is that when Petitioners urged the Commission to exercise its statutory authority to adopt one of the alternative MPA options by advocating and supporting that alternative during the rulemaking process, it could not later claim the Commission had no authority to adopt the regulations in the first place.  The Superior Court rejected these arguments as well, noting that each of the statutory schemes at issue were expressly for the public benefit, and a law established for a public benefit cannot be waived or circumvented by a private act (i.e., active participation in the rulemaking process).  Moreover, the court found that there was no evidence that Petitioner knew or could have known of Respondent’s alleged procedural failures, and thus this did not meet the definition of waiver, which is the intentional relinquishment of a known right after full knowledge of the facts. 

Perhaps most importantly, the Superior Court rejected the Commission’s argument that Petitioners’ support for one of the MPA alternatives during the rulemaking process somehow validated the process and precluded Petitioners from attacking the regulations in court.  Specifically, the court found that participants’ support for an alternative not ultimately adopted is not irreconcilable with a petitioner’s right to enforce the agency’s compliance with mandatory procedural requirements at a later date.  This conclusion and analysis have significance beyond the outcome of this case, as numerous state agencies frequently engage in rulemaking processes that involve alternative proposals and participants from stakeholder groups.  Simply by proposing an alternative avenue of regulation or making constructive suggestions during the rulemaking process does not mean a participant gives up its right to challenge the authority of the agency to engage in the rulemaking or assert other procedural violations at some point in the future.  Such a rule is important to public participation in regulatory processes, as a contrary holding would discourage stakeholders from participating in rulemaking processes for fear of giving up their right to challenge the regulation once it is adopted. 

Petitioners’ Substantive Challenges

Petitioners first contended that the Commission lacked the statutory authority to adopt the NCC Regulations, and thus said regulations were adopted in violation of the APA.  Regulations adopted by state agencies must be adopted consistent with the procedural and substantive requirements of the APA in most circumstances, and one of those requirements is that “no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.”  (Gov. Code, § 11342.2.)  Petitioners in this action contended the NCC Regulations were not consistent with certain statutory provisions of the Fish and Game Code and the Public Resources Code, and thus not within the scope of the authority conferred on the rulemaking agency as required by the APA.  The Superior Court rejected this assertion, noting that Fish and Game Code section 2861, subdivision (c), cited by the Commission as the authority for promulgating the NCC Regulations, states that:


Nothing in this chapter restricts any existing authority of the department or the commission to make changes to improve the management or design of existing MPAs or designate new MPAs prior to the completion of the master plan….  (Emphasis added.) 

The “existing authority” of the Commission includes, according to the Superior Court, Fish and Game Code section 1590, which expressly allows the Commission to “designate, delete, or modify state marine recreational management areas . . . state marine reserves, and state marine conservation areas . . . .”  Thus, the court concluded, under this existing authority the Commission could promulgate the NCC Regulations, and the MLPA did not preclude the designation and modification of MPAs by the Commission.  Citing a previous challenge to certain portions of the MPA process (Coastside Fishing Club. v. Cal. Resources Agency (2008) 158 Cal.App.4th 1183), the court found that relevant case law had already sanctioned a regional and phased approach to MPA planning. 

Petitioners also contended that MPA proposals should have undergone review by the Coordinating Committee, a group whose members are representatives from state agencies, departments, boards, commissions, and conservancies with jurisdiction or management interests over MMAs, that is tasked with reviewing proposals for new or amended MMAs.  (Pub. Resources Code, § 36800.)  However, the Superior Court noted that the Commission’s statutory authority for the promulgation of the NCC Regulations, Fish and Game Code section 1590, is not subject to the Coordinating Committee review process contained in the MMAIA because it exists as a stand-alone statute.  In addition, based on other provisions of the Public Resources Code, the Superior Court agreed with the Commission that the MMAIA does not require review by the Coordinating Committee where the MPA proposals were crafted through a process overseen by a “managing entity” such as the Commission itself.  (See Pub. Resources Code, §§ 36800, 36900.)  Finally, Petitioners argued that the Commission should have obtained a coastal development permit from the California Coastal Commission before proceeding.  However, the Superior Court found that the designation of MPAs falls within an exemption in the Coastal Act for “establishment and control of wildlife and fishery programs” (Pub. Resources Code, § 30411(a)) and also found that the Coastal Commission is statutorily obligated to defer to entities such as the Commission where MPAs are concerned.  Thus, no permit was required by statute. 

Conclusions and Implications 

Although not necessarily precedential, this decision is important in that it upholds the authority of the Commission to establish modified MPAs, a process which can and likely will be replicated in other regions along California’s vast coastline in the years to come.  However, on a broader level, the Superior Court’s discussion of both the exhaustion of remedies doctrine and the doctrine of waiver are important to any individual or entity seeking to challenge a state agency’s adoption of regulations.  First, petitioners should always be sure to actively participate in the rulemaking process and raise any issues that may later result in a legal challenge, as well as undertake any appeals or petitions for review that are required by the relevant statutes, in an effort to exhaust their administrative remedies.  Second, this decision serves as a reminder that stakeholder participation in rulemaking processes, regardless of the agency, board, or commission promulgating the new regulations, does not forfeit a participant’s right to initiate a legal challenge after the agency ultimately adopts the regulation.  Finally, though Petitioners’ claims were unsuccessful in this case, potential challengers to regulations adopted by state agencies should look to the California APA to ensure that the rulemaking entity has followed all necessary procedural and substantive requirements. 

For additional information related to the recent ruling in United Anglers of Southern California v. California Fish and Game Commission, please contact Adam D. Link atalink@somachlaw.com

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. 

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