California Fishery Plan Survives Massive Appeal

SACRAMENTO, Calif. (CN) - Environmentalists mostly failed to challenge California studies for statewide fish hatcheries and stocking operations, an appeals court ruled.

California has been developing plans to continue fish hatchery and stocking operations responsibly, while still providing recreational fishing opportunities, amid evidence of declining native amphibian populations and less genetic diversity in salmonids.

Among other things, the plans require the department to stop stocking lakes where threatened or endangered species live, and to assess lakes located within 2 km of the habitats of such species to determine if stocking operations can continue.

To maintain genetic integrity and limit wild and hatchery fish from interacting, the department is also developing hatchery genetic-management plans.

So far, the National Marine Fisheries Service has not approved any of the draft plans, court records show.

A 2006 lawsuit by the Center for Biological Diversity prompted a Sacramento judge to find that the hatchery and stocking program should not be exempt from review under the California Environmental Quality Act.

In 2008, the court ordered the California Department of Fish and Wildlife to prepare the first environmental impact report (EIR) for the program in its 100-year history, which was completed and certified in January 2010.

Using the program's operations from 2004 to 2008 as its environmental baseline, the EIR found that, among other things, the stocking program harmed frog and native fish populations by forcing them to compete for scarce resources with stocked fish and by introducing pathogens and invasive species into their habitats.

When it certified the EIR, the department chose to continue program operations while adopting the mitigation measures set forth in the aquatic diversity and hatchery genetic-management plans and endangered-species assessment requirements for water bodies proposed for recreational fish stocking.

This prompted separate lawsuits from the Center for Biological Diversity, Californians for Alternatives to Toxics and California Association for Recreational Fishing.

After consolidating their cases in Sacramento, Judge Lloyd Connelly denied the plaintiffs summary judgment. A three-judge panel with the 3rd Court of Appeals affirmed against all but one group on Tuesday.

The California Association for Recreational Fishing persuaded the appellate panel that the department violated the public-notice requirements of the Administrative Procedures Act (APA) when it unilaterally adopted mitigation measures affecting the Fishing in the City program, which stocks lakes in urban areas with fish.

Rejecting the department's exemption claims, the appellate court disagreed that the measures concern the department's internal management.

Indeed one measure affects a public program administered by the department and the thousands of people who participate in that program, while the other imposes new duties on those who supply fish for the program, the court found.

The court rejected the environmentalists' remaining challenges, including a claim that state investigators should have conducted site-specific analyses at each proposed stocking location; should have deferred the creation of mitigation measures in favor of enacting protocols established in the aquatic biodiversity and hatchery genetic management plans; and should have considered the cessation of stocking activities as a plan alternative.

Acting Presiding Judge George Nicholson signed the panel opinion, joined by Judges Elena Duarte and Andrea Lynn Hoch.

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