CA’s Striped Bass Records Are Privileged, Judge Says

(CN) - A federal judge in Sacramento ruled that California fish and game officials need only hand over two of the 39 documents requested by groups that say the state's sport-fishing regulations allow non-native striped bass to kill native Chinook salmon, Central Valley steelhead and Delta smelt.

The Coalition for a Sustainable Delta and others argued that the California Department of Fish and Game's enforcement of striped bass regulations in the Sacramento-San Joaquin Delta violated the Endangered Species Act.

But sports fishers and environmentalists clash over whether striped bass eat enough of these species to be considered a threat.

The plaintiffs asked the department to produce 39 documents related to striped bass regulations, including its stance on Assembly Bill 1253, a proposal to lift protections on striped bass.

The bill, proposed by Assemblywoman Jean Fuller of Bakersville, was approved only after it had been gutted. Rather than removing protections, the new version mandates further study of any fish species that might prey on smelt or salmon.

Attorneys for the state department reviewed more than 4,200 pages of agency emails, including deleted emails that had to be retrieved. They determined that 150 pages - or 89 emails - were shielded by the deliberative process privilege, which protects certain pre-decisional, internal agency documents.

The plaintiffs claimed the department was simply "trying to hide key evidence and admissions based on the deliberative process privilege." Such evidence included an email from the department's striped bass expert, complaining that the state's striper policy is "harmful ... primarily because significant uncertainty remains about the effect of striped bass predation on native fishes," according to the plaintiffs.

Environmentalists held this up as evidence that striped bass predation harms native fish.

U.S. District Judge Oliver W. Wanger said the defendant properly invoked the privilege on all but two documents.

Protected emails included conversations about a proposed "slot limit," which would limit fishers to striped bass of a certain size range, and emails discussing the department position on Assembly Bill 1253, according to Judge Wanger.

Wanger denied protection for two documents involving a proposal to list the Delta smelt as endangered under the California Endangered Species Act.

But for the most part, he found the plaintiffs' arguments "meritless."

"Although the communications do touch upon the issue of striped bass predation upon native species, the withheld documents are primarily concerned with various ways to word policy recommendations so as to accurately reflect the state of the science," Wanger wrote. "The communications do not reveal bad faith or any effort to withhold information from the public. Rather, they reveal a concern over giving policy advice that does not overstate the science."

Disclosing the material would hinder "frank and independent" internal discussions, he added, "without enhancing the record in any meaningful way."

Wanger also denied the plaintiffs' bid for legal fees and expenses.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit