Tomorrow, I will be in court representing the California Association for Recreational Fishing in their lawsuit against the California Department of Fish & Game. The suit challenges onerous regulations that the Department is imposing on private fish stocking throughout the state. For example, one of the challenged regulations forces those who try to stock fish in private lakes in California to demonstrate that their fish stocking will not have a substantial effect on some 80 different species of California fish. Here’s the twist — many of those species enjoy no protection under either the Federal or California Endangered Species Act. In other words, the regulations will prevent private fish stocking (in private water bodies) throughout California even though no endangered fish are being threatened.
Usually, when a government bureaucracy decides to impose regulations on the public, it must go through the Administrative Procedure Act. That is, the government must notify the regulated public of its proposed regulations, solicit comments, vet the regulations with the Office of Administrative Law, state the legal authority for the proposed regulations, and a whole slew of other requirements before the regulation is effective and carries the force of law.
Here, however, the Department simply bootstrapped a number of regulations to an Environmental Impact Report that they were ordered to undertake. But California law has a name for such bootstrapping — underground regulations — and they are illegal. So I will be in Court tomorrow, arguing that these “mitigation measures” are actually underground regulations, and that the court should strike them down as illegal. PLF will also be arguing that the Department is exceeding its statutory authority by recommending that the Fish and Game Commission adopt regulations that would impose costly, scientifically unjustified testing regulations on the state’s private hatcheries.
Craig Elliott of the California Association for Recreational Fishing, had this to say: “This is an important case because we’re challenging the Department of Fish and Game’s unprecedented power grab. This bureaucracy attempted to bypass an elected legislature to force their will upon hundreds of business owners and fishermen. What we’re confronting is a blatant disregard for the law in an attempt to increase the scope of the DFG’s duties.”
[This post has been updated since it was originally published.]