Stocking CA Lakes With Nonnative Fish Upheld

SAN FRANCISCO (CN) - The government can continue stocking California lakes with nonnative fish, a federal judge ruled, tossing a lawsuit from environmentalists.

Wilderness Watch and Felice Pace, a fisherman from Del Norte county, had sued the California Department of Fish and Game and two of its representatives last year, claiming that they were polluting lakes by illegally jettisoning fish from airplanes and by packstock, or "oxygenated plastic bags," without permits.

The Clean Water Act defines pollutants as any chemical or biological materials that compromise the integrity of a body of water. It is illegal to put pollutants into a body of water for any reason without a permit from the National Pollutant Discharge Elimination System.

Wilderness Watch and Pace said nonnative fish qualify as pollutants because they change the lakes' chemical and physical structures. In addition to altering nutrient cycles and food webs, they said newly added fish could spread disease and increase competition with native fish for food sources.

In a motion to dismiss, the defendants argued that its stocking practices are lawful under the Clean Water Act because fish do not quality as biological materials.

U.S. District Judge William Orrick agreed Monday and dismissed the suit with prejudice for failure to state a claim.

The six-page ruling cites the 2002 decision from the 9th Circuit in Association to Protect Hammersley v. Taylor Resources.

That case involve claims that byproducts released from mussels introduced in the Puget Sound were biological material pollutants under the Clean Water Act, but the court instead concluded that mussels, their feces and other byproducts did not qualify.

The only materials classifiable as biological materials under the act are "waste product[s] of a transforming human process" or "the waste product of a human or industrial process," that ruling stated.

"Applying the Hammersley definition here, the department's introduction of live fish for stocking lakes cannot be considered the waste product of a transforming human or industrial process," Orrick wrote. "In other words, the fish entering the lake are not the by-product of a human activity, like running a hydro-electric facility, spreading liquid manure on a field, or taking fish from a water body, processing the fish and returning the heads, fins and internal residuals back to that body of water. Instead, introduction of the live fish is the purpose and goal of the department's stocking program."

Orrick was not swayed by the alterations the fish could cause to lake composition or their nonnative status. Though invasive species can qualify as biological materials, the fish in this case were not discharged into the water as waste products of a human or industrial process and so are not biological materials under Hammersley, the judge concluded.

In his original complaint, Pace also argued that the water in which the fish were packed could also introduce nonnative species of aquatic plants and invertebrates into lakes being stocked.

Orrick agreed with the department, however, that the allegation was not actionable, and since Pace did not address this issue at oral argument.

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