Department of Fish and Game

REGULATORY AGENCY ACTION

transportation of oil and gas, require policies have been ignored in the envi- lating the federal law and the plant's pipeline transportation of oil and gas ronmental review of the project. Peti- coastal permit. The Coastal Commis- unless such a method is determined not tioners claim the writ is necessary to sion's Marine Review Committee previ- to be feasible or that the transportation guarantee appropriate review pursuant to ously concluded that the operation of the would result in greater adverse environ- the California Environmental Quality San Onofre plant kills tons of fish and mental effects, and permit an alternative Act (CEQA), and to ensure enforcement kelp each year. Although the Water mode of transportation under specified of the provisions of the California Resources Control Board has jurisdic- circumstances. This bill is pending in the Coastal Act which protect the functional tion over violations of the federal Act, it Senate inactive file. integrity of existing wetlands. The suit is deferring action until the Coastal SB 909 (Hart). Existing law autho- alleges that the Commission acted Commission acts. (See CRLR Vol. 11, rizes the Commission, on an appeal, to unlawfully and in excess of its authority No. 2 (Spring 1991) p. 154; Vol. 11, No. approve, modify, or deny a proposed since substantial evidence is lacking to 1 (Winter 1991) p. 135; and Vol. 9, No. 4 development. As amended May 1, this support its conclusion that the project, as (Fall 1989) p. 115 for background infor- bill would additionally authorize the approved, is in accord with CEQA. Cit- mation.) Commission to remand the matter to the ing multiple violations of CEQA (Public SCE and the Coastal Commission are local government or port governing Resources Code sections 21000(g), presently negotiating an agreement body which took the action, if there is 21001(d) and (g), 21002, 21002.1, and which would require SCE to spend over new information. This bill passed the 21080.5(d)(2)(i)) and the Coastal Act $30 million in mitigation efforts, includ- Senate on May 9 and is pending in the (including Public Resources Code sec- ing the construction of an artificial reef Assembly Natural Resources Commit- tions 30231, 30240, and 30233), peti- which would serve as a new marine tee. tioners claims that the approved project habitat. At this writing, such an agree- AB 10 (Hauser), which would pro- is not the least environmentally damag- ment still awaits approval by the Com- hibit the Commission from leasing, for ing feasible alternative, and contains mission. Judge Brewster indicated that if oil and gas purposes, all state-owned substantially inadequate mitigation. the agencies do not come to a conclusion tide and submerged lands situated in In addition to the CEQA and Coastal within the next six months, a trial will Mendocino County and Humboldt Act allegations, the petition charges that take place in early 1992 to determine County not within a specified area, some of the commissioners (Commis- whether the Clean Water Act has been passed the Assembly on April 1 and is sioner David Malcolm, among others) violated. pending in the Senate Governmental received secret, unsolicited, ex parte Organization Committee. communications urging approval of the FUTURE MEETINGS: "enhancement AB 72 (Cortese), which, as amended project" while the City's September 10-13 in Marina del Rey. May 20, would enact the California Her- permit application was pending. Peti- October 8-11 in Monterey. itage Lands Bonds Act of 1992, is pend- tioners claim these communications con- November 12-15 in San Diego. ing in the Assembly Committee on veyed purportedly factual information as December 10-13 in Los Angeles. Water, Parks and Wildlife. well as opinions on the merits of the pro- ject and its conformity with the require- LITIGATION: ments of the Coastal Act. The represen- DEPARTMENT OF On May 13, two months after the tations were allegedly made by an agent FISH AND GAME Coastal Commission voted to approve a of a local developer with property over- Director:Pete Bontadelli coastal development permit for the con- looking the Lagoon, and by representa- troversial Batiquitos Lagoon Enhance- tives of public agencies, including real (916) 445-3531 ment Project, the Sierra Club Legal parties in interest Harbor Commission Defense Fund and Buena Vista Audubon and the City of Los Angeles. Because The Department of Fish and Game Society filed a petition for writ of man- these alleged ex parte communications (DFG), created pursuant to Fish and date challenging the action by the Com- came from "interested parties" while the Game Code section 700 et seq., manages mission. Permit applicants and Real Par- Commission was considering the permit California's fish and wildlife resources ties in Interest in the suit, Sierra Club v. application, and were not made a part of (both animal and plant). Created in 1951 California Coastal Commission, No. the record, summarized, nor made avail- as part of the state Resources Agency, 637550 (San Diego County Superior able to the public for scrutiny, the peti- DFG regulates recreational activities Court), are the City of Carlsbad, City of tion alleges a violation of section 13522 such as sport fishing, hunting, guide ser- Los Angeles, Harbor Commission, Port et seq., Title 14 of the CCR, the fair trial vices, and hunting club operations. The of Los Angeles, and the Board of Harbor provisions of Code of Civil Procedure Department also controls commercial Commissioners for the Port of Los section 1094.5(b), and the whole record fishing, fish processing, trapping, min- Angeles. The suit was considered requirement of section 1094.5(c). ing, and gamebird breeding. inevitable after the Commission voted 6- In the lawsuit filed by the San Fran- In addition, DFG serves an informa- 5 to approve an alternative for the plan cisco based-environmental group, Earth tional function. The Department pro- ("Alternative A") which Commission Island Institute Inc., against Southern cures and evaluates biological data to staff and resource agencies found to be California Edison (SCE), alleging viola- monitor the health of wildlife popula- violative of state restoration guidelines. tions of the federal Clean Water Act tions and habitats. The Department uses (See CRLR Vol. 11, No. 2 (Spring 1991) stemming from operations at the San this information to formulate proposed p. 151-53 for detailed background infor- Onofre Nuclear Power Plant, U.S. Dis- legislation as well as the regulations mation on the Commission's decision trict Court Judge Rudi Brewster ruled on which are presented to the Fish and and the proposed "enhancement pro- May 6 that the California Coastal Com- Game Commission. ject.") mission and the San Diego Regional The Fish and Game Commission Acting as private attorneys general, Water Quality Control Board have six (FGC), created in section 20 of Article petitioners Sierra Club and Buena Vista months to determine whether coolant- IV of the California Constitution, is the Audubon allege that important public water discharges from the plant are vio- policymaking board of DFG. The five-

The California Regulatory Law Reporter Vol. 11, No. 3 (Summer 199 REGULATORY AGENCY ACTION

member body promulgates policies and pany"), and a partner in McNeil Enter- statewide. Use of these traps is mandato- regulations consistent with the powers prises, a real estate development compa- ry in the ranges of the endangered San and obligations conferred by state legis- ny located in Sherman Oaks. In addition, Joaquin kit fox and Sierra Nevada red lation in Fish and Game Code section he was with the Los Angeles law firm of fox. DFG released the second draft envi- 101 et seq. These regulations concern Paul, Hastings, Janofsky & Walker from ronmental document for a 45-day com- the taking and possession of birds, mam- 1962-1980, and was a partner from ment period which ended on July 12; mals, amphibians, reptiles, and fish. 1968-1980. FGC was scheduled to hold another pub- Each member is appointed to a six-year Mammal Hunting Regulations lic hearing on the trapping regulations on term. FGC's regulations are codified in Adopted. At its April 5 meeting in Sacra- August 2, and to adopt them on August Division 1, Title 14 of the California mento, FGC heard continued public 20. Code of Regulations (CCR). comment regarding its proposed 1991- Implementation of AB 3158. At its As part of the management of 92 mammal hunting and trapping regula- April 4 meeting, DFG was scheduled to wildlife resources, DFG maintains fish tions. (See CRLR Vol. 11, No. 2 (Spring permanently adopt new section 753.5, hatcheries for recreational fishing, sus- 1991) p. 156 and Vol. 11, No. 1 (Winter Title 14 of the CCR, to implement AB tains game and waterfowl populations, 1991) p. 125 for background informa- 3158 (Costa) (Chapter 1706, Statutes of and protects land and water habitats. tion.) Several hunters from northern Cal- 1990). AB 3158 requires DFG to impose DFG manages 506,062 acres of land, ifornia expressed concern over the num- and collect filing fees to defray the cost 5,000 lakes and reservoirs, 30,000 miles ber of deer tags proposed for the of managing and protecting fish and of streams and rivers, and 1,300 miles of 1991-92 season. The hunters argued that wildlife resources, including the cost of coastline. Over 648 species and sub- the number of tags proposed is excessive consulting with other public agencies, species of birds and mammals and 175 for existing deer herds, which have been reviewing environmental documents species and subspecies of fish, amphib- seriously impacted from years of submitted pursuant to the California ians, and reptiles are under DFG's pro- drought and continued hunting; and con- Environmental Quality Act (CEQA), tection. tended that continued, vigorous hunting recommending mitigation, and other The Department's revenues come would cause permanent damage to Cali- activities protecting those resources. The from several sources, the largest of fornia's deer population. DFG responded Commission adopted section 753.5 on which is the sale of hunting and fishing that its biologists had conducted popula- an emergency basis at its January 1991 licenses and commercial fishing privi- tion surveys of the deer herds in each meeting. (See CRLR Vol. 11, No. 2 lege taxes. Federal taxes on fish and hunting zone, and that the number of (Spring 1991) p. 156 and Vol. 10, No. 4 game equipment, court fines on fish and tags proposed is not excessive for the (Fall 1990) p. 155 for background infor- game law violators, state contributions, current population. mation on AB 3158 and proposed rule and public donations provide the At its April 25 meeting in Sacramen- 753.5.) remaining funds. Some of the state rev- to, the Commission adopted the pro- However, following public comment enues come from the Environmental posed hunting season regulations. High- at the April 4 meeting, the Department Protection Program through the sale of lights of the regulations include the postponed action to permanently adopt personalized automobile license plates. following: rules which defined mountain section 753.5. The most controversial DFG contains an independent lions as big game were deleted, and provisions of the proposed regulation are Wildlife Conservation Board which has those which provided for a sport hunting those which would charge more for a separate funding and authority. Only season for mountain lions were repealed; project for which a Negative Declaration some of its activities relate to the additional deer hunts were created for is required ($1,250) than projects for Department. It is primarily concerned specialized hunters, including archery which an environmental impact report with the creation of recreation areas in and muzzle-loading, and junior hunters; (EIR) is required ($850); and which state order to restore, protect and preserve and the number of bighorn sheep tags that de minimis projects, as determined wildlife. was increased from six to eight and the by lead agencies, are not subject to the hunting season was extended. fee requirement. Many witnesses MAJOR PROJECTS: For the first time in four years, no expressed concern that a "de minimis Governor Appoints New Commis- challenges to DFG's hunt proposals or project" is not adequately defined in the sioner. On May 1, Governor Pete Wilson the environmental documents supporting statute or the regulation; several bills are appointed Frank R. Boren to fill one of them were filed by the June 5 deadline. currently pending in the legislature to the two vacancies on FGC. Mr. Boren Even the archery portion of the black clarify that definition (see infra LEGIS- brings impressive conservation, finan- bear hunt, which was struck down last LATION). cial, and legal credentials to the FGC. year (see CRLR Vol. 10, No. 4 (Fall Notwithstanding these objections, From 1987 until 1990, Mr. Boren served 1990) pp. 156-57 for background infor- DFG adopted proposed section 753.5 at as President of The Nature Conservancy; mation), went unchallenged this year. its May 16 meeting, and forwarded the he also served as The Nature Conservan- FGC submitted its 1991-92 hunting reg- rulemaking file to the Office of Admin- cy's Western Regional Director for a ulations to the Office of Administrative istrative Law (OAL) on May 20. five-month period in 1986, and served Law (OAL) on May 28. Closure of Frenchman Reservoir. In on its Board of Governors from 1974 to The Commission was also scheduled November 1990, FGC adopted an emer- 1983. He is a member of the Board of to adopt its 1991-92 nongame and gency regulation closing Frenchman Trustees of the Digit Fund, and a Con- furbearing mammal trapping regula- Reservoir in Plumas County to all fish- servation Fellow of the World Wildlife tions; however, these were held over so a ing, because it has been illegally stocked Fund. Mr. Boren served as Environmen- second draft environmental document with northern pike, a predatory fish tal Advisor to Wilson from January 1990 could be prepared and made available to which could threaten already-depleted until his appointment to FGC. Mr. Boren the public for an additional comment stocks of native bass, trout, and salmon. is a director and consultant to Sand period. This move came in response to At that time, the Commission also pro- County Ventures, Inc. (described as "a vigorous opposition from trappers posed to close the lake indefinitely, so socially responsible venture capital com- regarding the use of padded-jaw traps DFG could chemically treat the lake to

he California Regulatory Law Reporter Vol. It, No. 3 (Summer 1991) REGULATORY AGENCY ACTION

rid it of northern pike. However, in the production of young bass has its biologists agreed that inconsistent December, Plumas County resident Har- declined over the years in response to weather patterns precluded the hoped-for ry Reeves filed suit and obtained a writ losses in increased water diversions by surge in spawning; thus, any release of of mandate preventing DFG from chem- state and federal water projects, freshwa- water could not be as effective as antici- ically treating the reservoir before ter flows reduced due to water project pated. appropriate environmental impact stud- operations and the recent extended Civil Penalty Regulations Disap- ies were conducted and released for pub- drought, and the cumulative effects those proved. On April 18, OAL rejected lic comment. In settlement of that law- changes have had on the number of FGC's adoption of sections 747 and 748, suit, DFG agreed to prepare a adults and their egg production. Title 14 of the CCR, which would set subsequent environmental impact report Increased losses of one- and two- guidelines for the imposition of civil (EIR) by March 4, with public circula- year-old fish due to illegal fishing may penalties for the unlawful sale or posses- tion until April 4. (See CRLR Vol. 11, also be contributing to the decline in sion of birds, mammals, amphibians, No. 2 (Spring 1991) p. 155-56 and Vol. recruitment of three-year-old striped reptiles, fish, insects, or plants taken in 11, No. I (Winter 1991) p. 126 for back- bass. DFG wardens have noted an violation of applicable statutes and regu- ground information.) upsurge in illegal fishing targeted on lations. (See CRLR Vol. 11, No. 2 At FGC's May 16 meeting, DFG these undersized (less than 18 inches) (Spring 1991) p. 156 for background reported that it had filed its final EIR for striped bass. information.) OAL found that the rule- the chemical eradication of northern DFG says it has recently taken a making record failed to comply with the pike on May 6, but that it must wait for number of steps to save the state's necessity and reference standards of certain environmental and biological striped bass population. It has engaged Government Code section 11349.1, that conditions to take place before applying in a concerted law enforcement effort to DFG inadequately summarized. and rotenone to the lake. In accordance with reduce illegal takes of both undersized responded to all public comments regis- the final EIR, chemical treatment cannot and adult bass. It also convinced the tered during the comment period, and commence until the reservoir water tem- Department of Water Resources (DWR) that the Department failed to comply perature reaches 55 degrees Fahrenheit to finance a huge $3.3 million restocking with the Administrative Procedure Act and the pike have completed spawning. program during May, in which three mil- in other technical respects. DFG plans to Water temperature at Frenchman lion one-year-old stripers were planted correct these deficiencies and resubmit Reservoir was in the 40s at the May in the Delta. DWR operates the huge this rulemaking file. meeting, and the pike were still spawn- State Water Project, which pumps vast Update on Other Regulatory ing. Once the spawning cycle is com- quantities of water out of the south end Changes. Following is a status update on plete and the eggs are hatched, the maxi- of the Delta; the pumps are believed to other regulatory changes proposed mum effectiveness of chemical be one of the major causes of the decline and/or adopted by DFG/FGC in recent treatment can be employed, according to in the production of striped bass. DFG months: DFG. hopes that the yearlings, instead of the -At its April 4 and April 25 meetings, On April 18, OAL approved FGC's usual six-month-old fingerlings, will DFG held a public hearing on its pro- adoption of section 7.50(b)(68.5), which have a better chance of survival in the posed adoption of section 699.5, regard- closes Frenchman Reservoir to fishing hostile Delta environment. The May ing fee increases for streambed alteration permanently (or until the regulation is 1991 restocking was the largest in a agreement processing. Prior to January repealed). series of such efforts which have taken 1, 1991, DFG was authorized to charge a DFG Attempts to Shore Up Declining place annually since 1988. fee to recover one-half of its costs of Striped Bass Population. In early May, Also in mid-May, DFG attempted to investigating and processing streambed DFG estimated that the number of legal- orchestrate a so-called "fish flush" alteration agreements; however, AB sized adult striped bass in California fell experiment-a massive release of water 3158 (Costa) (Chapter 1706, Statutes of to a record low of about 500,000 fish in from Sacramento Valley reservoirs. DFG 1990) amended Fish and Game Code 1990, which represents a decline from proposed to buy 40,000 acre- feet of section 1607 to permit DFG to recover about 800,000-1.2 million fish during water at a cost of $5 million. Under the its total costs, not to exceed $2,400. New the past decade and 1.6-1.9 million fish proposal, the release of the water would section 699.5 would effectively double during the early 1970s. DFG believes be timed carefully with an increase in existing fees. DFG adopted the new sec- the population decline has been caused spawning due to expected warm weath- tion at FGC's May 16 meeting, and sub- primarily by a decline in the number of er; the surge of water was intended to mitted the rulemaking file to OAL on new fish reaching the legal size of 18 keep bass eggs and larvae floating in the June 1. inches, rather than by an increase in the Sacramento River and headed toward the -At its April 4 meeting, FGC autho- mortality of adult fish. DFG also Delta. DFG acknowledged that the pro- rized staff to publish notice of its intent believes that deterioration in habitat posed experiment was a gamble-that it to amend section 27.65, to authorize the quality in the San Francisco Bay/Sacra- might do nothing to help the striped bass filleting of California halibut aboard ves- mento-San Joaquin Delta has been the and that it might actually harm other sels at sea. This move came in response principal cause of the decreased produc- species, including salmon and steelhead to a November 1990 request from the tion of young bass. Adverse effects trout. Sportfishing Association of California, include toxicity from waste discharges Arguing that DFG had not properly which resulted in an FGC order that and deterioration in the bass' food sup- studied the "fish flush" and its potential DFG investigate the relationship ply, partially cause by the accidental effect on other fish in the American, between total length and fillet length. introduction of invertebrates in ship bal- Yuba and Feather rivers, the California Also, the issue of prohibiting the fillet- last water. Sportfishing Protection Alliance sued ing of all other flatfish in conjunction The principal problem, however, has DFG on May 14 to prevent the experi- with authorizing the filleting of Califor- been increased water diversions and ment, and won a temporary restraining nia halibut needed to be considered in decreased amounts of freshwater flow- order the following day. On May 17, order to prevent potential enforcement ing seaward from the Delta. In essence, DFG abandoned the proposal, because problems. (See CRLR Vol. 11, No. 1

The California Regulatory Law Reporter Vol. 11, No. 3 (Summer 19! REGULATORY AGENCY ACTION

(Winter 1991) p. 127 for background The bill would authorize DFG to AB 1 (Allen), as amended May 13, information.) credit wetlands created in a bank site for would codify Proposition 132, the DFG completed its study in March, wetlands lost in a qualifying urban area, Marine Resources Protection Act of and recommended that filleting of Cali- as defined, through actions by a federal 1990, in the Fish and Game Code. That fornia halibut be authorized and that a permittee, and would provide for pay- initiative established the Marine minimum fillet length of 16.75 inches, ments by that federal permittee to the Resources Protection Zone, and com- with the skin on, be established in ocean operator of the created wetlands under a pletely prohibits the use of gill and tram- waters between the U.S.-Mexico border specified procedure. The bill would mel nets in the Zone after January 1, and a line extending due west from Point require an operator of a bank site, if it is 1994. Until then, gill and trammel nets Arena in Mendocino County. The fillet a public entity, to annually pay to the may only be used in the Zone pursuant length of 16.75 inches would allow fish- county in which the property is located to a nontransferable permit issued by ers to obtain legal size fillets from all an amount equal to property taxes and to DFG. The initiative also specifies that, California halibut larger than 25 inches pay specified assessments. This bill was after January 1, 1993, a person who in total length, while helping to assure passed by the Senate on May 30 and is holds a gill net permit may surrender it that whole fish shorter than the legal pending in the Assembly Committee on to DFG and receive compensation based minimum length of 22 inches will not be Water, Parks and Wildlife. on the average ex vessel value of the fish retained and filleted by anglers. In con- AB 1811 (lsenberg), as introduced (other than rockfish) landed by that per- junction with authorizing the filleting of March 8, would require DFG to conduct son within the Zone during 1983-87. California halibut, DFG recommended a survey of state-owned wetlands and (See CRLR Vol. 11, No. 1 (Winter 1991) that the filleting of other species of flat- nonwetlands suitable for restoration p. 126 for background information.) This fish (Pacific and Greenland halibut, which are larger than 100 acres in the bill is pending in the Assembly Commit- tonguefish, turbot, flounder, sole, and Sacramento Valley and the San Joaquin tee on Water, Parks and Wildlife. sand dab) be prohibited off California, to Valley; DFG would be required to sub- AB 1339 (Cannella), as introduced prevent the take and filleting of under- mit a report on the survey to the legisla- March 7, would reenact prior law which sized California and Pacific halibut as permitted the DFG Director to designate "other" ture and the Governor by June 30, 1992. flatfish. This bill is pending in the Assembly not more than two days in each year as FGC scheduled a June 28 public Ways and Means Committee. free sportfishing days during which resi- hearing on the proposed amendments to AB 751 (Hauser) would declare it the dents and nonresidents could, without having a sportfishing license and without section 27.65. policy of the state and DFG to permit the payment of any fee, exercise the LEGISLATION: and promote nonprofit salmon release and return operations operated by privileges of a holder of a sportfishing SB 495 (Johnston). AB 3158 (Costa) license. This urgency bill passed the licensed commercial salmon fishers for (Chapter 1706, Statutes of 1990) permits Assembly on May 2 and is pending on the purpose of enhancing California's DFG to impose and collect a filing fee to the Senate floor. salmon populations and cover its costs of reviewing projects sub- increasing the AB 1361 (Cortese). Fish and Game salmon harvest by commercial ject to CEQA, including projects which and Code section 219 generally provides that recreational fishers. the lead or certified regulatory program The bill would regulations adopted by FGC may super- require DFG to cooperate with fishing agency finds to be de minimis in their sede any section of the Fish and Game effect on the environment. (See supra organizations in the siting and establish- Code. As introduced March 7, this bill MAJOR PROJECTS.) As amended ment of those operations, and to regulate would repeal that provision. This bill is April 22, this bill would exempt a pro- the operations as necessary to ensure the pending on the Assembly floor. ject found by the lead or certified regula- protection of natural spawning stocks of AB 1386 (Cortese). Under existing tory agency to be de minimis in its effect native salmon. This bill is pending on law, it is unlawful for any person to sub- on the environment from payment of the the Assembly floor. stantially divert or obstruct the natural filing fee. This bill passed the Senate on AB 1409 (Lempert), as amended May flow or substantially change the bed, May 16 and is pending in the Assembly 8, would enact the Oil Spill Response, channel, or bank of any river, stream, or Committee on Water, Parks and Prevention, and Administrative Fees lake designated by DFG, or use any Wildlife. Law, prescribing the procedures for col- material from the streambeds, without SB 463 (McCorquodale),as amended lection of fees by the State Board of first notifying DFG of the activity. A May 22, would enact the Sacramento- Equalization to finance the Lempert- violation of this provision is a misde- San Joaquin Valley Wetlands Mitigation Keene-Seastrand Oil Spill Prevention meanor, punishable by (among other Bank Act of 1991, making legislative and Response, which (among other things) a maximum fine of $1,000. It is findings and declarations relating to the things) created the Office of Oil Spill also unlawful to deposit in, permit to significance of wetlands and the impor- Prevention and Response within DFG. pass into, or place where it can pass into tance of encouraging wetlands preserva- (See CRLR Vol. 11, No. I (Winter 1991) the waters of this state any petroleum, tion and augmentation by the private p. 125 and Vol. 10, No. 4 (Fall 1990) p. acid, coal or oil tar, among other speci- sector. It would authorize DFG, until 155 for background information.) This fied substances. A violation of this pro- January 1, 2010, with the approval of bill is pending in the Assembly Ways vision is a misdemeanor, punishable by FGC, to qualify mitigation bank sites, as and Means Committee. (among other things) a maximum fine of defined, in the Sacramento-San Joaquin SB 1013 (Thompson), as amended $2,000. As amended May 13, this bill Valley, to provide incentives and finan- April 25, would prohibit DFG from issu- would make persons who violate these cial assistance to create wetlands in ing or renewing a permit for the opera- provisions subject to a civil penalty of areas where wetlands are filled, or where tion of an alligator farm if the alligators not more than $25,000 for each viola- there are discharges into wetlands under are kept for the use of their meat or tion. This bill is pending in the Assem- specified federal permits. (See CRLR hides. This bill passed the Senate on bly Ways and Means Committee. Vol. 11, No. 1 (Winter 1991) p. 126 for May 23 and is pending in the Assembly AB 1364 (Cortese), as amended April background information on this issue.) Committee on Water, Parks and Wildlife. 23, would prohibit any change in the

'he California Regulatory Law Reporter Vol. 11, No. 3 (Summer 1991) 16 REGULATORY AGENCY ACTION

point of diversion, place of use, or pur- mental documents for projects which bly Committee on Banking, Finance and pose of use to individually or cumula- have a significant impact on trust Bonded Indebtedness. tively cause the flow in any stream, riv- resources of the Department; the bill AB 2172 (Kelley), as amended April er, or watercourse to drop below that would also delete the requirement that a 25, would authorize DFG to enter into flow needed to protect biologically sus- fee be paid for projects for which a nega- agreements with other public agencies tainable populations of fish and wildlife. tive declaration is prepared. This bill is and private interests to prepare and This bill would require all determina- pending in the Assembly Committee on implement a habitat conservation plan in tions of fact and all recommendations Water, Parks and Wildlife. specified counties in southern Califor- made pursuant to its provisions to be AB 203 (Farr),as amended May 7, nia; require DFG to adopt guidelines for made by DFG. The bill, however, would would require the Administrator of the the development and implementation of not apply to any stream, river, or water- Office of Oil Spill Prevention and habitat conservation plans; and require course unless the Director of Water Response within DFG to establish rescue DFG to determine the amount of its rea- Resources determines that the year will and rehabilitation stations by January 1, sonable costs incurred in preparing plan- or may be a dry or critically dry year. 1993, and to consult with the specified ning guidelines and in performing other This bill is pending in the Assembly agencies by January 1, 1992. This urgen- tasks in connection with the habitat con- Ways and Means Committee. cy bill is pending in the Assembly Ways servation plans. This bill is pending on AB 1557 (Wyman), as amended May and Means Committee. the Assembly floor. 8, would require FGC to determine AB 353 (Hauser), as amended April ACR 35 (Wyman), as introduced whether its regulations or regulatory 15, would require FGC to designate March 14, would request DFG to seek actions-particularly those which result additional fish spawning or rearing funding to conduct a study to determine in the listing of a species as endangered waterways that it finds necessary to pro- the status of the Mohave ground squirrel. or threatened under the California tect fishlife. This bill is pending in the This resolution is pending in the Assem- Endangered Species Act (CESA) Assembly Committee on Water, Parks bly Committee on Water, Parks and -would result in a taking of private and Wildlife. Wildlife. property subject to the provisions of the AB 355 (Hauser), as introduced Jan- AB 51 (Felando), as amended March California Constitution or the United uary 29, would authorize DFG to order 4, would require DFG to conduct a study States Constitution governing eminent the party responsible for the deposit of of existing marine resource management domain. (See CRLR Vol. 10, Nos. 2 & 3 any petroleum or petroleum product into activities and impacts, make recommen- (Spring/Summer 1990) p. 1 for extensive the waters of this state to repair and dations on activities to maintain and background information on this issue.) restore all loss or impairment of fishlife, increase the abundance of these This bill is pending in the Assembly shellfish, and their habitat, and require resources, and report the results of the Committee on Water, Parks and DFG to adopt regulations to carry out the study and its recommendations to the Wildlife. Governor bill by June 30, 1992. This bill is pend- and the legislature by January The following is a status update on ing in the Assembly Committee on 1, 1993. This bill is pending in the bills reported in detail in CRLR Vol. 11, Assembly Committee on Water, Water, Parks and Wildlife. Parks No. 2 (Spring 1991) at pages 157-58: and Wildlife. AB 977 SB 403 (L. Greene), as amended (Mountjoy), as amended May AB 72 (Cortese), which, as amended 6, would April 30, would (among other things) permit FGC to authorize sport May 20, would enact the California Her- require DFG to publish a notice in the hunting of mature Nelson bighorn rams itage Lands Bond Act of 1992, is pend- CaliforniaRegulatory Notice Register of without regard to area. This bill would ing in the Assembly Committee on the receipt of a petition, or the com- also increase from one to three the per- Water, Parks and Wildlife. mencement of an evaluation, to add a missible number of license tags to be AB 89 (Felando), as amended April species to or remove a species from the issued each year to take a Nelson 22, would require any person taking sea list of endangered species or the list of bighorn ram and would require DFG, not cucumbers and hagfishes for commercial threatened species pursuant to CESA, less than every other year, to designate a purposes to obtain a permit to do so from and would specify the information nonprofit organization organized pur- DFG. This bill passed the Assembly on required to be in the notice. This bill suant to the laws of this state, or the Cal- May 29 and is pending in the Senate passed the Senate on May 16 and is ifornia chapter of a nonprofit organiza- Committee on Natural Resources and pending in the Assembly Committee on tion organized pursuant to the laws of Wildlife. Water, Parks and Wildlife. another state, as the seller of these tags. AB 145 (Harvey), as amended March SB 796 (Rogers), as introduced This bill is pending in the Assembly 20, would increase from $100 to $250 March 7, would specify that AB 3158 Ways and Means Committee. the minimum fine for an initial violation filing fees (see supra MAJOR PRO- AB 1389 (Cortese), as amended April of willful interference with the participa- JECTS) are to be calculated in an 25, would require FGC to direct DFG to tion of any individual in the lawful activ- amount necessary to defray the cost to annually authorize not more than one ity of shooting, hunting, fishing, falcon- DFG of providing the particular service, antelope tag for the purpose of raising ry, or trapping at the location where that and would also prohibit the inclusion of funds for programs and projects to bene- activity is taking place, and increase the any surcharge or amount intended to fit antelope. That tag could be sold at minimum fine for a subsequent violation permit DFG to establish a reserve. This auction or by other method, and would to $500. This bill passed the Assembly bill was rejected by the Senate Commit- not be subject to the $55 fee limitation. on May 2 and is pending in the Senate tee on Natural Resources and Wildlife This bill is pending on the Assembly Judiciary Committee. on April 30; however, the Committee floor. AB 172 (Felando), as amended April granted the bill reconsideration. AB 1641 (Sher), as amended May 24, 29, would (among other things) require AB 2030 (Allen), as introduced would enact the Fish, Wildlife, and the one-time compensation payable to March 8, would require AB 3158 filing Endangered Species Habitat Conserva- persons surrendering permits to use a gill fees to be proportional to the cost tion and Enhancement Bond Act of or trammel net to DFG pursuant to incurred by DFG in reviewing environ- 1991. This bill is pending in the Assem- Proposition 132 to include the average

The California Regulatory Law Reporter Vol. 11, No. 3 (Summer 19 REGULATORY AGENCY ACTION

annual ex vessel value of the fish (other suit between Bighorn Ventures (a Cali- Each THP must describe the land upon than rockfish) landed by the permittee fornia limited partnership which is which work is proposed, silvicultural within the Marine Resources Protection financed in part by Safeco Insurance, methods to be applied, erosion controls Zone during the years 1983-87, inclu- and which seeks to build hundreds of to be used, and other environmental pro- sive. This bill would also authorize a homes and a golf course next to Bighorn tections required by the Forest Practice one-time compensation for rockfish fish- Institute) and Bighorn Institute (a non- Rules. All THPs must be inspected by a ers based on a specified formula, if the profit organization which conducts a forester on the staff of the Department of courts determine that the Marine research, recovery, and release program Forestry and, where deemed necessary, Resources Protection Zone extends into intended to increase the bighorn sheep by experts from the Department of Fish federal waters (see infra LITIGATION). population in California). After Bighorn and Game, the regional water quality This bill is pending in the Assembly Institute expressed concerns over the control boards, other state agencies, Committee on Water, Parks and proposed residential development and/or local governments as appropriate. Wildlife. (which resulted in Ventures' having to For the purpose of promulgating For- prepare an environmental impact report), est Practice Rules, the state is divided LITIGATION: Bighorn Ventures retaliated by initiating into three geographic districts-south- DFG has recently been sued and a costly and protracted suit based on ern, northern, and coastal. In each of countersued over its interpretation of alleged CEQA violations. (See CRLR these districts, a District Technical Advi- Proposition 132, the Marine Resources Vol. 11, No. 2 (Spring 1991) p. 158 for sory Committee (DTAC) is appointed. Protection Act of 1990 approved by the background information.) The various DTACs consult with the voters at the November 1990 election. In Board in the establishment and revision February, the Committee to Ban Gill FUTURE MEETINGS: of district forest practice rules. Each Nets, Dolphin Connection, Earth Island August 29-30 in Long Beach. DTAC is in turn required to consult with Institute, Assemblymember Doris Allen, October 1-3 in Redding. and evaluate the recommendations of the and Leo Cronin petitioned the Alameda October 31-November I in San Diego. Department of Forestry, federal, state, County Superior Court for a writ of December 5-6 in Sacramento. and local agencies, educational institu- mandate commanding DFG to enforce tions, public interest organizations, and Proposition 132, which bans the use of private individuals. DTAC members are gill and trammel nets, out to 200 miles BOARD OF FORESTRY appointed by the Board and receive no offshore (instead of the three-mile limit Executive Officer: Dean Cromwell compensation for their service. enforced by DFG). This case was dis- (916) 445-2921 missed by stipulation on March 5, after MAJOR PROJECTS: DFG agreed to enforce the initiative out Dwindling Membership Threatens to 200 miles. (See CRLR Vol. 11, No. 2 The Board of Forestry is a nine-mem- Board's Ability to Act. At this writing, (Spring 1991) p. 158 and Vol. 11, No. I ber Board appointed to administer the Governor Wilson has yet to fill any of (Winter 1991) p. 126 for background Z'berg-Nejedly Forest Practice Act the three vacancies on the Board (two information.) (FPA) of 1973 (Public Resources Code public member positions and one forest However, on March 15, DFG was section 4511 et seq.). The Board is estab- products industry member), leaving the sued in Vietnamese Fisherman Associa- lished in Public Resources Code (PRC) Board with only six members. This is tion of America, et al. v. California section 730 et seq.; its regulations are significant because under PRC section Department of Fish and Game, et al., codified in Division 1.5, Title 14 of the 736, five members of the Board consti- No. C910778-DLJ, in the U.S. District California Code of Regulations (CCR). tute a quorum, and five members must Court for the Northern District of Cali- The Board serves to protect California's agree in order to adopt any regulatory fornia. In this case, plaintiffs claim that timber resources and to promote respon- package. DFG's interpretation of Proposition 132 sible timber harvesting. Also, the Board Board Considers Emergency Regula- conflicts with and is preempted by feder- writes forest practice rules and provides tions to Protect the Marbled Murrulet. al law, and that the state is forbidden the Department of Forestry and Fire Pro- Since January 1991, CDF has disap- from enforcing its laws in the area tection (CDF) with policymaking guid- proved at least three THPs which between three and 200 miles offshore. ance. Additionally, the Board oversees involved the habitat of the marbled mur- Following the March 18 issuance of a the administration of California's forest rulet. (See CRLR Vol. 11, No. 2 (Spring temporary restraining order, the court system and wildland fire protection sys- 1991) p. 162 and Vol. 11, No. 1 (Winter issued a preliminary injunction on April tem, sets minimum statewide fire safe 1991) p. 129 for background informa- I prohibiting DFG from enforcing standards, and reviews safety elements tion.) Concern for the murrulet, a seabird Proposition 132 beyond the three-mile of county general plans. The Board's which feeds at the ocean but nests in sea- state waters limit. At this writing, this current members are: side old-growth forests, has been case is on hold while the Pacific Fishery Public: Franklin L. "Woody" Barnes expressed by the state Department of Management Council holds hearings on (Acting Chair), Robert J. Kerstiens, and Fish and Game (DFG) and the U.S. the issue. The Committee to Ban Gill Elizabeth Penaat. Department of the Interior (DOI) since Nets and Assemblymember Allen have Forest Products Industry: Mike A. 1978; both agencies have been peti- intervened in this case in support of Anderson and Joseph Russ, IV. tioned to list the species as threatened DFG. Range Livestock Industry: Jack and, in February 1991, DFG told DOI Shannon. that the murrelet meets the five criteria RECENT MEETINGS: The FPA requires careful planning of set forth for listing a species under the At its April 4 meeting, FGC approved every timber harvesting operation by a federal Endangered Species Act. the renewal of the memorandum of registered professional forester (RPF). At its May 8 meeting, the Board con- understanding (MOU) between DFG Before logging operations begin, each sidered the adoption of emergency regu- and the Bighorn Institute. To date, no logging company must retain an RPF to lations to protect the habitat of the mar- settlement has been reached in the law- prepare a timber harvesting plan (THP). bled murrulet. Section 895.1, Title 14 of

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