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MLPA Litigation

LAW OFFICES
ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
DAVID D. COOKE (BAR NO. 94939)
KATHRYN D. HORNING (BAR NO. 185610)
Three Embarcadero Center, 12th Floor
San Francisco, CA 94111-4074
Phone: (415) 837-1515
Fax: (415) 837-1516
E-Mail: dcooke(at)allenmatkins.com
khorning(at)allenmatkins.com

MARVIN E. GARRETT (BARNO. 46735)
515 South Figueroa Street, Ninth -Floor
Los Angeles, California 90071-3309
Phone: (213) 622-5555
Fax: (213) 620-8816
E-Mail: mgarrett(at)allenmatkins.com
Attorneys for Petitioners and Plaintiffs
United Anglers of Southern California, Coastside
Fishing Club, and Robert C. Fletcher

Superior Court of the State of California

FOR THE COUNTY OF SAN DIEGO
CENTRAL DIVISION

15 UNITED ANGLERS OF SOUTHERN
CALIFORNIA;
COASTSIDE FISHING CLUB; AND
ROBERT C. FLETCHER,

Petitioners and Plaintiffs,

vs.

CALIFORNIA FISH AND GAME COMMISSION,

Respondent and Defendant.

Case No. 37-2011-00084611-CU-WM-CTL

PETITION FOR WRIT OF MANDATE
AND COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF FOR:

1. VIOLATION OF THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT

2. ADOPTION OF REGULATIONS
WITHOUT STATUTORY AUTHORITY

3. VIOLATION OF THE CALIFORNIA
COASTAL ACT

via Fax

 

Petitioners and Plaintiffs United Anglers of Southern California ("UASC") and Coastside Fishing Club ("CFC"), and Robert C. Fletcher (sometimes referred to collectively herein as "Petitioners") respectfully petition this Court for a writ of mandate pursuant to Code of Civil Procedure §§ 1085 and 1086, and seek declaratory and injunctive relief pursuant to Gov. Code § 11350, Public Resources Code § 30803, and Civil Procedure Code § 1060, and allege, as follows:

Summary Statement of Action

1. This Petition and Complaint asks the Court to enforce the fundamental principle that a state agency's power to promulgate enforceable regulations is limited by the scope of the authority conferred upon it by the Legislature. The rules that are the subject of thls action are regulations adopted in 2009 and 2010 by the California Fish and Game Commission ("Respondent") that designate dozens of "Marine Protected Areas, If or "MPAs," in the Pacific-Ocean within two regions along the California coast. One of the regions includes San Diego County - the so-called "South Coast Study Region" ("SCSR"), which extends from the border with Mexico north to Point Conception near Santa Barbara. The other is the liN orth Central Coast Study Region" ("NCCSR"), which extends from Pigeon Point near Santa Cruz north to Point Arena in Mendocino County. The Petitioners and Plaintiffs who challenge the validity of these rules are two prominent organizations devoted to the advancement of marine recreational angling in California, and an individual who is active in the Southern California recreational angling community. Petitioners and Plaintiffs ask the Court to declare these rules to be invalid and to order Respondent to set them aside.

2. The invalid rules designating MPAs in the SCSR and the NCCSR are the product of a process set in motion with the Legislature's enactment in 1999 of the Marine Life Protection Act ("MLPA"), a state law having the overall goal of enhancing protection of marine resources in California through the adoption of MPAs to be located and designed through a statewide "master plan" process. To accomplish this goal, the Legislature spelled out detailed objectives and assigned specific roles and functions in the development of the master plan to the California Department of Fish and Game ("Department"), and to others, including a "Master Plan Team" created by the MLPA. The role of Respondent, which has certain statutory rulemaking authority with respect to wildlife and-fisheries, is to review and adopt a Marine Life Protection Program and a final Master Plan that implements it, and to adopt enforceable regulations implementing the Program and the final Master Plan.

3. Due to shortfalls in the funding necessary to carry out this ambitious project, however, the draft Master Plan could not be prepared within the time mandated by the MLPA (as amended, by 2005). To bridge this gap, the California Resources Agency, now known as the California Natural Resources Agency ("CNRA"), and the Department entered into a so-called "public-private partnership" with a private foundation, in 2004, setting up a privately-fmanced "MLPA Initiative" to implement the MLPA. The agreements between the CNRA, the Department and· the private funding foundation were designated as "memorandums of understanding" ("MOUs"). The MOUs set forth a process for MLPA implementation, including the preparation of the Master Plan, the development of alternative "networks" of MPAs, and the selection of a "preferred siting alternative" to be recommended to Respondent. The funding agreements include terms calling for the creation of a new entity, the so-called "Marine Life Protection Act Initiative Blue Ribbon Task Force" ("Task Force"), and they describe the functions and duties of the Task Force, the CNRA, the Department, and the Master Plan Team created by the MLPA (which the parties to the agreements "re-established" as the "Science Advisory Team).

4. As structured, the work of the MLPA Initiative was phased, starting with commitments limited to the preparation of (and funding for) a "Master Plan Framework" and development of MPAs for the "Central Coast Study Region," an area along the coast between Santa Barbara and Pigeon Point. The initial agreement was then revised to cover the NCCSR, and was revised again to cover the SCSR and two other "study regions," consisting of the North Coast (from Point Arena to the Oregon border) and San Francisco Bay. When MPAs have been selected for all five Study Regions - an event currently projected to occur in or about 2012 - the final Master Plan can be prepared and presented to Respondent for consideration and approval.

5. The MLPA itself was not amended to accomodate the requirements of the MOUs, to recognize the Task Force or codify the roles assigned to it in the MOUs, or to authorize Respondent to adopt regulations before it adopts a final Master Plan. Nevertheless, Respondent has now adopted three sets of regulations establishing MPAs in the Central Coast Study Region, the NCCSR, and, most recently, in the SCSR. The regulations pertaining to the SCSR and NCCSR are the subject of this action. In its list of statutory authorities for adopting these regulations, Respondent did not cite its core rule- making authority in the MLPA - the authority to adopt regulations after approval of a final Master Plan - presumably because of its awareness that it could not do so in the absence of a final Master Plan. The statutory authorities upon which Respondent relies in its rulemaking materials do not confer upon it the authority to adopt these regulations, either because they do authorize the adoption of the regulations as drafted, or the prerequisites the statutory authorities impose for adopting regulations have not occurred. Regulations that are adopted without statutory authority are void. For this reason, and others, Respondent's SCSR and NCCSR MPA Regulations must be set aside.

6. Although Respondent did not rely on its core rulemaking authority in the MLPA as authority for adopting the SCSR and NCCSR MPA Regulations, the process that has led to the preparation of these regulations has been characterized publicly, by Respondent and others, as the MLPA process. In fact, however, the process that led up to the adoption of these regulations has been conducted in a manner that is significantly different from the process mandated by the Legislature in the :MLPA. The differences are largely attributable to the requirements of the MOUs through which the private funding for this process was procured. The Task Force has taken on and performed critical functions statutorily assigned to the Department, which has not performed them. The statutory role of the Master Plan Team has been curtailed. The Task Force itself has repeatedly violated the requirements of the MOU that its scheduled meetings be open to the public, thereby violating important elements ofth-e MLPA that require public transparency. Thus, although the MLPA is held out publicly as the basis for the development of these regulations if not as the legal basis for adopting them - the MLPA does not and could not serve as statutory authority for these regulations.

7. The SCSR MPA Regulations suffer from the additional defect that they were adopted on the basis of a fundamentally flawed environmental review process, in violation of the California Environmental Quality Act ("CEQA"). In connection with the adoption of the SCSR MPA Regulations in December 2010, the Department prepared, and the Respondent certified, a final environmental impact report ("FEIR") which concludes that the "Project" - the SCSR MPA Regulations - will not have a significant adverse environmental impact. The FEIR is fundamentally flawed in that it fails to identify and/or adequately discuss numerous potential environmental impacts, it fails to defme a correct "baseline" condition, it fails to inCiude a proper "cumulative impacts" analysis, it fails-to conduct a proper assessment of alternative projects, and, in many instances where it does address potential environmental impacts, its analysis is wholly illogical and/or unsupported by substantial evidence, an in violation of CEQA.

8. For these reasons and on the grounds detailed in this Petition and Complaint, Respondent's certification of the FEIR and its decision to carry out the Project, and the SCSR and NCCSR MPA Regulations, must be set aside.

The Parties

9. Petitioner and plaintiff UASC is a California non-profit mutual benefit corporation dedicated to the enhancement of fishery resources in California through management, conservation and education, in order to maximize angling opportunities and pass the sport of fishing on to future generations. UASC has been a leader and supporter of a variety of marine habitat conservation programs, including the Ocean Resources Enhancement Program - White Sea Bass Restoration Program, youth fishing programs, the Rigs to Reefs program, and artificial reef procurements and mitigation efforts. The principal place of business of VASe is located in Signal Hill, California. VASC has approximately 1,850 members, most of whom are residents of Southern California the area comprising the South Coast Study Region of the MLPA Initiative, and many of whom are residents of San Diego County. VASC and its members have a beneficial interest in, and will be directly affected by, actions of Respondent that are the subject of this petition and complaint.

10. Petitioner and plaintiff CFC is a non-profit mutual benefit corporation, organized and existing under California law. CFC has over 10,000 members who are California anglers with particular interests in the regulation of California's marine resources, in the areas that comprise the Central Coast and North Central Coast Study Regions of the MLPA Initiative. CFC and its members have a beneficial interest in, and have been and will continue to be directly affected by regulations of Respondent that pertain to, among other areas, the North Central.Coast Study Region.

11. Petitioner and plaintiff Robert C. Fletcher ("Fletcher") is an individual resident in San Diego County, an avid recreational fisherman, and an activist in marine fishery and habitat issues in Southern California and elsewhere. Mr. Fletcher served as the Chief Deputy Director of the Department from 1987-1989. Mr. Fletcher has a beneficial interest in, and will be directly affected by, actions of Respondent that are the subject of this petition and complaint.

12. Respondent Fish and Game Commission is a California state agency and commission authorized by Article IV, Section 20 of the California Constitution. It is composed of five members who are appointed by the Governor and confrrmed by the California Senate. Respondent has regulatory powers over hunting and fishing in California. Respondent adopted the regulations, and approved the Project and certified the FEIR, that are the subjects of this petition and complaint.

13. This action involves the enforcement of important rights affecting the public interest. Accordingly, should Petitioners prevail in this action, they will confer a significant benefit on the citizens of the State of California. Petitioners are therefore entitled to an ·award of reasonable attorneys' fees pursuant to California Code of Civil Procedure § 1021.5.

Jurisdiction and Venue

14. This Court has jurisdiction over this Petition and Complaint pursuant to Code of Civil Procedure §§ 1060 and 1085, Public Resources Code §§ 21168.5 and 30803, and Government Code § 11350.

15. Prior to Respondent's approval of regulations for the South Coast Study Region and its certification of the FEIR for the South Coast Marine Protected Areas Project ("Project"), Petitioners VASC and CFC appeared in writing and/or in person and objected to the Project, thereby exhausting all administrative remedies provided by Respondent. Petitioners VASC and CFC, and other agencies, interested groups and individuals made oral and written comments on the Draft EIR, and raised each of the legal deficiencies and factual issues asserted in this Petition: Additionally, Petitioners VASC and CFC presents each of the grounds (apart from grounds based on CEQA) for invalidity of some or all of Respondents' SCSR MPA Regulations, to Respondents in writing and/or orally prior to Respondent's approval of the SCSR MPA Regulations.

16. Petitioners timely filed this action, insofar as it challenges Respondent's action to approve the Project and certify the SCSR EIR, within 30 days of Respondent's filing of a "Notice of Determination (Decision)" with the Secretary for Natural Resources. Petitioners also commence this action within 30 days of the filing by the Department of a Notice of Determination with respect to Respondent's approval of the Project and certification of the SCSR EIR with the Governor's Office of Planning and Research. Petitioners are informed and believe, and thereupon allege, that the Notice of Determination was filed with the Governor's Office of Planning and Research on or about January 10, 2011.

17. Venue is proper in this Court because the SCSR and the Project are located -in part-in this County, the Attorney General maintains an office in this County, some parts of the causes of action alleged herein arose in this County, and the effects of some of the actions by Respondent that are challenged in this Petition and Complaint are felt in this County.

The Facts

A. The MLPA

18. The California Legislature adopted the MLPA in 1999 (Stats. 1999, Chapter 1015, Section 1, codified as Chapter 10.5, Sections 2850 et seq., of the California Fish & Game Code) in order to improve the design and management of the existing system of marine protected areas (IMPAs") in California's ocean and estuarine waters. An MPA is an area "primarily intended to protect or conserve marine life and habitat," and is "a named, discrete geographic marine or estuarine area seaward of the mean high tide line or the mouth of a coastal river ... [which] includes marine life reserves or other areas that allow for specified commercial and recreational activities, including fishing for certain species but not others, fishing with certain practices but not others, and kelp harvesting, providing that these activities are consistent with the objectives of the area and the goals and guidelines of the [MLPA]." Fish & Game Code § 2852(c). The MLPA declares that "California's marine protected areas (MPAs) were established on a piecemeal basis rather than according to a coherent plan and sound scientific guidelines. Many of these MPAs lack clearly defined purposes, effective management measures and enforcement. As a result, the array of MPAs creates the illusion of protection while falling far short of the potential to protect and conserve living marine life and habitat." Fish & Game Code §2851(a).

19. In order to accomplish the Legislature's objectives in the MLPA, the MLPA mandates that Respondent adopt a "Marine Life Protection Program" that has the following goals: to protect the natural diversity and abundance of marine life, and the structure, function and integrity of marine ecosystems, to help sustain, conserve and protect marine life populations, including those of economic value, and rebuild those that are depleted, to improve recreational, educational and study opportunities provided by-marine ecosystems that are subject to minimal human disturbance, and to manage these uses in a manner consistent with protecting biodiversity, to protect marine natural heritage, including protection of representative and unique marine life habitats in California water fer their intrinsic value, to ensure that California's MPAs have clearly defined objectives, effective management measures, and adequate enforcement, and are based on sound scientific guidelines; and to ensure that the state's MPAs are designed and managed, to the extent possible, as a network. Fish & Game Code § 2853(b).

20. To accomplish these goals, the MLPA requires the preparation and adoption of a "master plan" (hereinafter, "Master Plan") that guides the adoption and implementation of the Marine Life Protection Program. The MLPA provides that Department shall prepare, or by contract cause to be prepared, a master plan, and that Department shall convene a "master plan team" (hereinafter, "Master Plan Team") to advise and assist in the preparation of the Master Plan, or hire' a contractor with relevant expertise to assist in convening such a team. The MLPA contains specific requirements with respect to the membership of the Master Plan Team. The MLPA further provides that "the [d]epartment and team [Master Plan Team], in carrying out this chapter, shall take into account relevant information from local communities, and shall solicit comments and advice for the master plan from interested parties on issues including, but not necessarily limited to, ... [p ]ractical information on the marine environment and the relevant history of fishing and other resources use, areas where fishing is currently prohibited, and water pollution in the state's coastal waters," "socioeconomic and environmental impacts of various alternatives," "design of monitoring and evaluation activities," and "methods to encourage public participation in the stewardship of the state's MPAs." Fish & Game Code § 2855(a), (b), (c). The MLPA specifies that "[t]he [d]epartment and team [Master Plan Team shall use the best readily available scientific information in preparing the master plan ... and shall organize the location specific contents, where feasible, by biogeographical region." Fish & Game Code § 2856(a)(l). The MLPA mandates that the Master Plan include, among other components, ""recommended alternative networks of MPAs, including marine life reserves in each biogeographical region," and "[r ]ecommendations for a preferred siting alternative for a network of MPAs that is consistent with the goals in Section 2853 and the guidelines in subdivision (c) of Section 2857." Fish & Game Code § 2856(a), (2). The MLPA mandates that "the [d]epartment and team [Master Plan Team] shall develop a preferred siting alternative that incorporates information and views provided by people who live in the area and other interested parties, including economic information, to the extent possible while maintaining consistency with the goals of Section 2853 and guidelines in subdivision ( c) of this section." Fish & Game Code § 2857(a).

21. As amended, the MLPA required the Department to submit a draft of the Master Plan-to Respondent on or before January 1,2005, to conduct at least three public meetings on the draft Master Plan, and to submit a proposed final Master Plan to Respondent by April 1, 2005. Respondent was then required, after holding at least two public hearings, to adopt a final Master Plan and a Marine Life Protection Program with regulations based on the plan, by December 1,2005, and to implement the program to the extent funds are available. Fish & Game Code § 2859(a), (b), (c).

22. In addition to conferring on Respondent the authority to adopt regulations pursuant to Section 2859, the MLPA provides that Respondent "may regulate commercial and recreational fishing and any other taking of marine species in MPAs," Fish & Game Code § 2860(a), and that Respondent "shall, annually until the master plan is adopted and thereafter at least every three years, receive, consider, and promptly act upon petitions from any interested party, to add, delete, or modify MPAs, favoring those petitions that are compatible with the goals and guidelines of this chapter." Fish & Game Code § 2861(a). The MLPA further provides: "Nothing in this chapter restricts any existing authority of the Department or the commission [Respondent] to make changes to improve the management or design of existing MPAs or designate new MPAs prior to the completion of the master plan." Fish & Game Code § 2861(c).

B. The MMAIA

23. In 2000, the year following adoption of the MLPA, the Legislature adopted the Marine Managed Areas Improvement Act ("MMAIA"), Stats.2000, chapter 385 (A.B. 2800). The MMAIA is statutorily coordinated with the MLPA, but is codified in the Public Resources Code, Sections 36600 et seq. A "marine managed area (MMA) "is a named, discrete geographic marine or estuarine area along the California coast designated by law or administrative action, and intended to protect, conserve, or otherwise manage a variety of resources and their uses." The MMAIA reduces the classifications of~lAs to six. Three are MPAs, defined in a manner "consistent with the Marine Life Protection Act": "state marine reserves," "state marine parks," and "state marine conservation areas " MPAs ... are a subset of marine managed areas (MMAs)." The other three classifications of MMAs (state marine cultural preservation areas, state marine recreational management areas, and state water quality protection areas), are not MPAs. Pub. Res. Code § 36602( d), (e). The specific elements of each classification are specified in Section 36700, and the limitations on "take" or other activities within each classification of MMA are specified in Section 36710. The MMAIA specifies that three agencies may designate, delete or modify various classifications of MMAs: Respondent, the State Parks and Recreation Commission, and the State Water Resources Control Board. Pub. Res. Code § 36725. Respondent, in particular, is authorized to designate, delete, or modify state marine reserves and state marine conservation areas, both of which are forms of MPAs, as well as state marine recreational management areas established for hunting purposes. Id., § 36725(a). The MMAIA also provides: "Pursuant to this section, and consistent with Section 2860 of the Fish and Game Code, the Fish and Game Commission may regulate commercial and recreational fishing and any other taking of marine species in MMAs." Id, § 36725( e).

24. Petitioners are infonned and believe, and thereon allege, that the MMAIA was enacted in order to resolve the problems of disorganization that plagued the array of California MMAs. As explained in a Department of Finance Enrolled Bill Report (Aug. 7, 2000), A.B. 2800, most of which is codified in the Public Resources Code, was drafted in response to the findings of the State Interagency Marine Managed Areas Workgroup, which had been convened by the Secretary of the Res0urces Agency [now known as the California Natural Resources Agency, or "CNRA"] to "develop a plan to better defme and evaluate MMA classifications. This bill is the result of that effort." In its Final Report (Jan. 15,2000), the State Interagency Marine Managed Areas Workgroup found that California's MMAs had been designated in a piecemeal fashion over the course of fifty years, resulting in a disorganized array of MMAs and fragmented management, uncoordinated among various agencies. It further found that this lack of coordination in _ the designation and management of MMAs had led to confusion among agency personnel and the public, poor compliance with regulations, and a lack of effective enforcement. During the drafting of the bill, the Assembly Committee on Water, Parks, and Wildlife observed that there was "no coordination mechanism identified in law for requiring or even encouraging managing agencies to work together during the designation process or later when management responsibilities [were] assumed." The sponsor of the bill stated that U[t]he only effective way to establish a comprehensive system of MMAs [was] to legislatively repeal use of the existing 18 classifications for the designation of any new State MMAs and create a new classification system with a clearly identified mission and goals, a consistent designation process, and a coordinating mechanism for state agencies with jurisdiction or management responsibilities for marine managed areas." Id. at p. 2 (emphasis added). According to an Assembly Committee on Water, Parks, and Wildlife Background Information Request, the MMAIA was to "establish in statute the scientific and policy committees necessary to ensure that [MMA] designations [would be] managed (for the first time) as a statewide system."

25. Petitioners are informed and believe, and thereon allege that the Legislature chose the "State Interagency Coordinating Committee" ("SICC") as the essential coordinating mechanism necessary for state agencies to maintain a consistent MMA designation process. The MMAIA requires the Secretary of the CNRA to establish and chair the SICC, whose members are representatives from state agencies, departments, boards, commissions, and conservancies with-jurisdiction or management interests over marine managed areas, including, but not limited to, the Department, the Department of Parks and Recreation, the California Coastal Commission, the State Water Resources Control Board, and the State Lands Commission, plus other agency members that may be designated by the Secretary of the CNRA. Pursuant to the MMAIA, the SICC "shall review proposals for new or amended MMAs to ensure that the minimum required information is included in the proposal, and to ensure consistency with other such designations in the state." The SICC "shall also serve to ensure the proper and timely routing of site proposals, review any proposed site-specific regulations for consistency -with the state system as a whole, and conduct periodic reviews of the statewide system to evaluate whether it is meeting the mission and statement of objectives." Pub. Res. Code § 36800. Further, the MMAIA charges the SICC to play a role, with the appropriate managing agencies, in developing designation guidelines based on classification goals for the state system of MMAs, Pub. Res. Code § 36850, and to "establish a standard set of instructions for each classification to guide organizations and individuals in submitting proposals for designating specific sites." Pub. Res. Code § 36870. Proposals submitted to an MMA designating entity (Respondent, the Parks and Recreation Commission, or the State Water Resources Control Board), are to be forwarded to the SICC to initiate the review process. The SICC and the "scientific review panel" established by the MMAIA are required to consider and promptly act upon proposals for MMA designation proposals on an annual basis until the adoption of the final Master Plan pursuant to the MLPA. Pub. Res. Code § 36900. The SICC is required to review proposals for designations of MMAs to ensure that the minimum required information is included in the proposal, to determine those state agencies that should review the proposal, and to ensure consistency with other designations of that type in the state. Pub. Res. Code § 36900(a). Thereafter, the proposal would be forwarded to a scientific review panel, which was to be created by the Secretary of the CNRA "with statewide representation and direction from the SICC." To the extent practicable, the scientific review panel was to be comprised of the same personnel.as the Master Plan Team under the MLPA. After review by the scientific review panel, the SICC is required to forward proposals for MMA designation, and any recommendations, to the appropriate designating agency for the public review process." Pub. Res. Code § 36900(b).

C. The "MLPA Initiative" and the First MOU

26. In 2004, after it became clear that the Department's limited resources rendered it unable to prepare a draft master plan within the time periods specified by the Legislature in the MLPA, the CNRA, the Department and a private foundation called the "Resources Legacy Fund Foundation" ("RLFF") created the "California Marine Life Protection Action Initiative" ("MLPA Initiative "). The Initiative was designed in part to obtain private funds to supplement insufficient public funds provided for MLPA implementation through a "public-private partnership." To this end, CNRA and Department entered into a contract, known as the "Memorandum of Understanding among The California Resources Agency, The California Department of Fish and Game, and the Resources Legacy Fund Foundation for The California Marine Life Protection Act Initiative" ("First MOU"). The First MOU was signed on August 27,2004. The First MOU recites that the Department determined to prepare the draft Master Plan in phases, starting with a "Master Plan Framework" that will then be used to develop networks of MPAs within individual regions. Pursuant to the First MOU, the Department obtained the assistance of the CNRA and the RLFF in preparing the "Master Plan Framework" and in developing alternative networks of MPAs in an area along the central coast of California from Pigeon Point to Point Conception (the "Central Coast Study Region, II or "CCSR"). The RLFF's main role was to procure and provide fmancing for these efforts.

27. The First MOU provided that the CNRA Secretary shall appoint unpaid "advisors" to a "California MLPA Blue Ribbon Task Force" ("Task Force") the function of which was, among other things, to oversee the preparation of the draft Master Plan Framework and a proposal for alternative networks of MPAs in the CCSR. The members of the Task Force were to be appointed by the Secretary of the CNRA. The MLPA itself makes no mention of a Blue Ribbon Task Force, by that name or any other. The First MOU provided that the Task Force would be assisted by a staff retained and paid by the RLFF. These privately paid staff members, together with Department personnel, were to form a "Steering Committee" responsible for coordinating the work of the MLPA Initiative.

28. The First MOU also provided that the Director of the Department was to expand the Master Plan Team and "re-establish" it as the "Master Plan Science Advisory Team" ("Science Team"). Under the First MOU, the function of the "Science Team" was to "advise and assist the Task Force and its staff in the preparation of the Master Plan Framework and proposed alternative networks of MPAs in an area along the central coast, pursuant to [Fish & Game Code] Section 2855(b), by providing scientific and technical support. "

29. The First MOU provided that "[t]he Department will receive from the Task Force the draft Master Plan Framework and proposal for alternative networks of MPAs in an area along the central coast. Consistent with the MLPA, the Department will independently review and make any amendments or modifications to the draft documents that it determines appropriate. After review and revision of the draft documents, the Department will submit to the Commission for its review and consideration the revised drafts as the Department's draft Master Plan Framework and proposal for alternative networks of MPAs in an area along the central coast." The First MOU also required the Director of the Department to appoint members to the "Science Team" and to "charge the Science Team with fulfilling certain of the obligations of the Master Plan Team under the MLPA by advising and assisting the Task Force and its staff in the preparation of the draft Master Plan Framework and the proposed alternative networks of MPAs in an area along the central coast." The RLFF promised to pay the reasonable expenses of the Task Force and "Science Team" and to fund the salaries of both the Task Force staff and (up to a limit of $750,000) certain Department staff involved in the work to be performed under the First MOU.

30. The-First MOU provided that "the Parties agree and intend that the process used to achieve the objectives of this MOU will be transparent to the pUblic. As used herein, 'transparent' means that (i) the Task Force will convene in publicly-noticed llild open meetings whenever a majority of the members is scheduled to be present (ii) the Science Team will convene in publicly-noticed and open meetings whenever a majority of the members is scheduled to be present, (iii) the Task Force and Science Team will provide regular opportunities for stakeholder and public input, and final work products developed pursuant to this MOU by the Task Force and the Science Team, and the Funding Description provided by the Foundation, will be made available to the public." Citing this provision, the Court of Appeal observed, in Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1210 n. 14 ("Coastside Opinion") that "[t]he transparency required by the MLPA is also required by the MOU with respect to the work of the Task Force and the science team it creates."

31. The commitments of the parties to the First MOU were to expire on December 31,2006. In the First MOU, none of the parties committed itself to any tasks beyond the scope of the First MOU.

32. On April 13, 2007, following the performance of activities described in the First MOU, Respondent adopted regulations establishing MPAs in the Central Coast Study Region ("CCSR").

D. The Coastside Opinion

33. On January 14,2008, the First District Court of Appeal published its Coastside Opinion, resoMng a legal challenge by Petitioner and Plaintiff Coastside to the implementation of the MLPA Initiative through the First MOU. In the Coastside Opinion, the Court of Appeal, construing the MLPA, held that the First MOU constituted a contract by which DFG could, as authorized in the MLPA, "by contract cause" the draft Master Plan to be prepared. The Coastside Opinion also provided that the funds paid by the RLFF pursuant to the First MOU were not a "gift" to the state that had to be approved by the Director of Finance. The Coastside Opinion also held t.1],at the MLPA, implemented in accordance with the terms of the First MOU, did not violate the doctrine, embodied in Article III, Section 3 of the California Constitution, limiting the extent to which the legislature may delegate its legislative power to the executive branch of government. In so concluding, the Court stated in the Coasts ide Opinion that by specifying, in Fish & Game Code § 2853(b) and (c), the six goals of the Marine Life Protection Program and the five elements that the program must contain, "the Legislature has elaborately cabined the substance and scope of the master plan." Id. at 1209. The Court cited the specificity of the components of the Master Plan mandated by h1.e Legislature in the MLPA (specifically Fish & Game Code § 2856(a)(2)(A)-(K)), id. at 1209-10, the "transparency" requirements of the MLPA that are also required by the First MOU, id., at 1210 and n.4, the specific qualifications of the members of the Master Plan Team, id. at 1210-11, and the Legislature's specification of the types of persons and entities with whom the DFG must confer in preparing the Master Plan, including Section 2855(c), which mandates that n[t]he department and team, in carrying out this chapter, shall take into account relevant information from local communities, and shall solicit comments and advice for the master plan from interested parties" on a nonexclusive list of specified issues. Id. at 1211. The Court concluded that "[j]udicially enforceable standards identify the substantive issues required to be addressed in the master plan, ensure that those who prepare the draft master plan are scientifically qualified to do so, specify the transparent manner in which the plan is prepared, the person and interest groups that must be invited to participate in the planning process, the experts who must be consulted, and the objectivity and quality of the scientific infonnation relied upon. these many specifications significantly limit the discretionary authority of DFG and those with whom it contracts for assistance (including financial assistance) to produce a draft master plan that departs from the goals of the MLPA." Id.

E. The Draft Master Plan and Charters

34. In or about February 2008, after publication of the Coasts ide Opinion, Respondent issued a "California Marine Life Protection Act Revised Draft Master Plan For -Marine Protected Areas, January 2008" ("Draft Master Plan"). The Draft Master Plan describes a process for designing alternative MPA network proposals and considerations for design of MPAs, and addresses issues relating to management, -enforcement, monitoring and "adaptive management" of MPAs, and funding. The Draft Master Plan describes five "study-regions" in California: the Central Coast (Pigeon Point to Point Conception), the North Central Coast (Alder Creek near Point Arena to Pigeon Point), the South Coast (Point Conception to the California/Mexico border), the North Coast (the California/Oregon border to Alder Creek near Point Arena), and San Francisco Bay.

35. The Draft Master Plan describes the role of the Department as follows: "The Department serves as the lead agency for the design and implementation of the MLPA master plan and statewide network of MPAs. The Department continues its traditional support of the CRA and the commission. The director of the Department selects the members of the science team in consultation with the Resources Agency secretary, the Commission president and the task force chair. Through the initiative's steering committee, the Department assists with the development of the draft master plan framework and proposals for MPAs. The Department also provides biological, enforcement and other relevant information, participates in meetings as appropriate, reviews working documents, and acts as lead agency under the CEQA, among other activities."

36. The Draft Master Plan describes the role of the Task Force as follows: "The task force oversees regional projects to develop alternative MPA proposals to present to the Commission, prepares information and recommendations for coordinating management of MPAs with federal agencies, and provides direction for expenditure of initiative funds. The task force also works to resolve policy disputes and ·provide direction in the face of uncertainty, while meeting-the objectives of the MLPA."

37. The Draft Master Plan describes the role of the Science Team as follows: "The science team provides the scientific knowledge and judgment necessary to assist the Department with meeting the objectives of the initiative, providing input to the task force, and completing the master plan for MPAs. Principally, the science team is charged with reviewing and commenting on scientific papers relevant to the implementation of the MLPA, reviewing alternative MPA proposals, reviewing draft master plan documents, addressing scientific issues presented by those documents, and addressing scientific questions raised by the task force or stakeholders. A SAT sub-team of the science team serves each study region by working directly with the stakeholders and Department to help develop scientifically sound alternatives."

38. The Charter for the MLPA 2007-2008 Master Plan Science Advisory Team further describes the function of the "Science Team," which includes the MLPA Master Plan Team, stating, in part: "In the course of assisting the Department, members [of the Science Team] shall refrain from making policy juo.gments; rather, where available science presents options or uncertainty, the SAT shall frame and refer those policy questions to the Department or, if appropriate, the BRTF." The Operating Principles for MLPA Master Plan Science Advisory Team, adopted June 26,2007, provide: "The role of the SAT is to provide impartial assessments without subjective value judgments or opinions. It is not the role of the SAT to advocate on issues of value, i.e., what the people of California want or should want. Consistent with this, the SAT will not develop its own MPA proposals, but will support the MLPA process by providing scientific information and playing a role in reviewing and evaluating the scientific efficacy of proposed MPA designs. SAT members will also playa key role in helping the stakeholders and decision-makers in their understanding of the ecological aspects of the region."

F. The Second MOU and NCCSRMPA Regulations

39. In December 2006, representatives of the CNRA, the Department and the RLFF executed a second agreement, called the "Memorandum of Dnderstanding Among The California Resources Agency, the California Department ofFish and Game and The Resources Legacy Fund Foundation for The California Marine Life Protection Act Initiative Second Phase" ("Second MOU"). The Second MOU was not the subject of or considered in the Coastside Opinion. The Second MOU revised the role of the Task Force and purported to revise the role of the Department in the MLPA Initiative process:

  1. (a) The Second MOU required the Secretary of the CNRA to appoint members of the Task Force "to guide the development of alternative MPA proposals and to recommend a preferred alternative to the Fish & Game Commission for the second phase of the MLPA process." The Second MOU provided explicitly (where the First MOU did not) that the Task Force's authority and duties included: "guide the development of-alternative MPA proposals, modify proposals presented to the Task Force by the Regional Stakeholders Group as the Task Force deems appropriate and craft alternative MPA proposals for presentation to the Fish and Game Commission" and to "recommend to the Fish and Game Commission a range of alternative proposals and a preferred MPA alternative proposal for the next phase of the MLPA Initiative process." Development of a recommendation by the Task Force to Respondent of a preferred MPA alternative is explicitly an objective of the Second MOU.
  2. (b) The Second MOU also provided (where the First MOU did not) that "the Department will participate fully in the deliberations of the Blue Ribbon Task Force, Science Advisory Team and Regional Stakeholders Group to afford those bodies access to the Department's expertise and perspective in the development of alternative MPA proposals."
  3. (c) The Second MOU did not provide, as the First MOU had provided, that Department will independently review and make any amendments or modifications to the draft MPA proposals that it detennines appropriate, or that after review and revision of the draft documents, Department will submit to Respondent for its review and consideration -the revised drafts as the Department's proposal for alternative networks of MPAs. The Second MOU did provide that "[t]he Department will provide to the Task Force, Science Advisory Team and Regjonal Stakeholders Group specific infonnation on the Department's analysis and concern regarding alternative MPA proposals during the second phase of the MLPA process," and that n[t]he Department, in the exercise of its statutory jurisdiction, and in addition to participation in the development of alternative MPA proposals, may provide infonnation, analysis and comments as appropriate to the Fish and Game Commission on the alternative MPA proposals and on the recommendation for a preferred MPA alternative proposal made to the Commission by the Blue Ribbon Task Force for the second phase of the MLPA process. The purpose of such infonrration, analysis and comments is to provide advice to the Commission on feasibility of aspects of the MPA proposals and on the prospects of the MPA proposals to achieve the goals of the MLPA."

40. The RLFF agreed in the Second MOU to pay for certain expenses of the MLPA second phase, subject to fulfillment by the CNRA and the Department of their commitments in the Second MOU. The transparency requirements of the First MOU were retained in the Second MOU. The tenn of the Second MOU extended from January 1, 2007 through December 31,2008.

41. Pursuant to the Second MOU, a set of alternative MPAs for the North Central Coast Study Region ("NCCSR"), extending from Pigeon Point to Alder Creek near Point Arena, was developed. On or about April 22-23, 2008, the Task Force adopted an "integrated preferred alternative," or "IPA," containing MPAs from several alternative networks of MPAs in the NCCSR. On or about June 11, 2008, the Task Force recommended adoption of its NCCSR IPA to Respondent. On or about August 5, 2009, Respondent adopted regulations implementing the NCCSR IPA, largely as recommended by the Task Force, establishing 21 MPAs in the North Central Coast region. The ,regulatIons, as adopted, amended Section 632 of Title 14 of the California Code of Regulations. Such regulations (hereinafter, the "NCCSR MPA Regulations") went into effect on or about May 1, 2010.

42. In the Initial Statement of Reasons ("ISOR") prepared for the draft NCCSR MPA Regulations, Respondent stated, in a discussion pertaining to "Implementation of the Marine Life Protection Act in the north central coast region": "Regarding Department contribution to the planning process, rather than developing its own preferred alternative or recommend any particular alternative as a whole, the Department provided input to the NCCRSG and BRTF throughout proposal development." Respondent further stated that "the [Task Force] created an Integrated Preferred Alternative proposal (IPA) by selecting, and in some cases slightly modifying, MPAs from each of the three NCCRSG proposals .. .. The [Task Force] recommended that the Commission select the IPA as the regulatory preferred alternative for the north central coast."

G. The Extended MOU and the SCSR MPA Regulations

43. In or about July 2008, representatives of the CNRA, the Department and the RLFF executed a third agreement, called the Amendment and Extension of Memorandum of Understanding Among The California Resources Agency, the California Department of Fish and Game and The Resources Legacy Fund Foundation for The California Marine Life Protection Act Initiative Second Phase" ("Extended MOU"), providing for the extension of the Second MOU to cover the development of alternative networks of MPAs in the South Coast Study Region ("SCSR"), the North Coast Study Region ("NCSR"), and the San Francisco Bay Study Region ("SFBSR"). The RLFF agreed in the Extended MOU to pay for certain expenses of implementation of the MLPA Initiative in'later phases, including development of MPAs in the South Coast, North Coast, and San Francisco Bay Study Regions, subject to certain conditions including but not limited to fulfillment by the CNRA and the Department of their commitments in the Extended MOU. Other terms of the Second MOU, including the transparency requirements of the Second MOU, were retained without modification in the Extended MOU. The Extended MOU provides that it was effective upon signing and that it remains in effect through December 31, 2011.

44. Pursuant to the Extended MOP, a set of alternative MPAs for the SCSR was developed. On or about November 10, 2009, the TaskForce adopted an "integrated pr:eferred alternative" ("SCSR IPA"), containing MPAs from several alternative networks of MPAs in the SCSR. On or about December 9, 2009, the Task Force recommended to Respondent the adoption of the SCSR IPA. On September 7, 2010, Respondent published for public review and comment draft regulations based on the SCSR IPA, with certain sub- options, relating to certain proposed MPAs within the SCSR, for selection by Respondent, together with an Initial Statement of Reasons for Regulatory Action. At its October 20, 2010 meeting, Respondent directed Department to add certain regulatory options for newly-identified issues. On or about November 22, 2010, Respondent published for public review and comment a set of revised proposed regulations for MPAs for the SCSR, containing a discussion of options, with recommendations, pertaining to such newly- identified issues. During a public meeting conducted on December 15, 2010, Respondent resolved nineteen open issues regarding the features of the proposed SCSR MPA Regulations, selecting certain options presented to it in the September 7, 2010 and November 22, 2010 set of draft regulations, and adopted regulations implementing the SCSR IPA as recommended by the Task Force subject to those selected changes. Such regulations, as adopted and when effective, will amend Section 632 of Title 14 of the California Code of Regulations. Respondent has announced that these regulations (hereinafter, the "SCSR MPA Regulations") will become effective and enforceable in mid- 2011.

45. In the ISOR for the draft SCSR MPA Regulations. Respondent stated: "The Department [of Fish & Game] contributed to the planning process by providing input to the SCRSG and BRTF throughout proposal development in the form of feasibility and design guidelines, and formal evaluations of MPA proposals based on those guidelines. The Department did not develop its own preferred alternative or recommend any particular alternative as a whole." Respondent further stated that "The MLPA Master Plan Science' Advisory Team (SAT) for the South Coast Study Region was appointed by the Department Director to provide scientific advice and guidelines to the BRTF and SCRSG for development of MPA proposals based on the best readily available science and the draft master plan. The SAT provided scientific evaluation of MPA proposals relative to the science guidelines and goals of the MLPA." The Respondent further stated that "the [Task Force] created the [SCSR] IPA," that the Task Force "voted to recommend that the Commission select the IPA as the regulatory preferred alternative for the south coast region," and that "the Commission received:the [Task Force] recommendations at a joint meeting on December 9, 2009 .... "

H. Task Force Violations of Public Meeting Requirements

46. The transparency requirements of the Second MOU and the Extended MOU have not been met during the development of the IPAs for the NCCSR and the SCSR. During the processes leading up to its consideration of alternative networks of MPAs for the SCSR, the Task Force conducted numerous scheduled meetings. Some of the meetings were open to the public in accordance with the "transparency" provisions of the Extended MOU, but some were not. Petitioners are informed and believe, and thereon allege, that the Task Force conducted scheduled meetings, some with advance agendas, that were not open to the public, and at whichmembers of the TaskForce and MLPA Initiative staff discussed matters relating to the development of MPAs in the NCCSR or the SCSR, on at least the following dates: April 7,2007, April 14-16, 2007, April 16, 2007, November 3, 2008, December 10. 2008, February 25, 2009, June 3 or 4, 2009, October 20, 2009, October 21, 2009, and October 22, 2009.

I. The Future Final Master Plan

47. Respondent has not adopted a final Master Plan for Marine Protected Areas. To date, Respondent has selected MPA networks and adopted MPA regulations for the Central Coast, the North Central Coast, and the South Coast study regions. Petitioners are informed and believe, and thereon allege, that Respondent will not consider adoption of a final Master Plan for Marine Protected Areas under the MLPA until MPA networks are selected for all five "study regions" under the MLPA Initiative. Petitioners are further infonned and believe, and thereon allege, that work on selection of MPAs for the North Coast Study Region is underway and is expected by Respondent to be completed in 2011, and that work on selection of MPAs for the San Francisco Bay Study Region is expected by Respondent to be completed in 2012.

First Cause of Action
(Writ of Mandate-
Invalidity of SCSR MPA Regulations)
(By Petitioners UASC and Fletcher)

48. Petitioners UASC and Fletcher incorporate, as if fully set forth herein, the allegations of paragraphs 1 through 47, inclusive.

49. Pursuant to the California Administrative Procedures Act ("APA"),Cal. Gov. Code §§ 11340 et seq., a state agency must, ill notice of proposed adoption, amendment or repeal of a regulation, identify the authority under which the regulation is proposed and a reference to the particular code sections or other provisions of law that are being implemented, interpreted, or made specific. Cal. Gov. Code § 11346.5(a)(2).

50. As authority for adopting the SCSR MPA Regulations, Respondent relied upon the following statutes: Section 200,202,203.1, 205(c), 219,220, 1590, 1591,2860, 2861 and 6750 of the Fish and Game Code, and Sections 36725(a) and 36725(e) of the Public Resources Code.

51. Sections 200 - 220 of the Fish & Game Code are within Division 1, Chapter 2, Article 1 of that Code. Respondent's authority to regulate under this article is limited to "the taking or possession of birds, mammals, fish, amphibia, and reptiles .... " Fish & Game Code § 200. Many of SCSR MPA Regulations prohibit or regulate the taking of all "living marine resources." Not all living marine resources are birds, mammals, fish, amphibia or reptiles. To the extent that SCSR MPA Regulations purport to regulate living marine resources that are not birds, mammals, fish, amphibia or reptiles, such Regulations do not fall within Respondent's regulatory authority under Sections 200 220 of the Fish & Game Code. Additionally, Section 200 of that Code provides: "[n]o power is delegated to the commission by this article to regulate the taking, possessing, processing, or use of fish, amphibian, kelp, or other aquatic plants for commercial purposes." Many of the SCSR MPA Regulations apply to commercial activities. To the extent that the SCSR MPA Regulations apply to commercial activities, such Regulations do not fall within Respondent's regulatory authority under Sections 200 - 220 of the Fish & Game Code.

52. Section 6750 of the Fish & Game Code authorizes Respondent to "regulate the taking, collecting, harvesting, gathering, or possession of kelp for purposes other than profit." Many of the SCSR MPA Regulations regulate activities other than the noncommercial use of kelp. To the extent that such Regulations regulate activities other than the noncommercial use of kelp, such Regulations do not fall within Respondent's regulatory authority under Section 6750 of the Fish & Game Code.

53. Sections 2860 of the Fish & Game Code-is within the MLPA. Pursuant to Section 2860(a) of the Fish & Game Code, Respondent "may regulate commercial and recreational fishing and any other taking of marine species in MPAs." Section 2860( a) does not provide Respondent with statutory authority to designate, modify or delete MPAs. The regulations adopted by Respondent for the SCSR MPAs include the designation, modification and/or deletion ofMPAs.

54. Sections 2861 of the Fish & Game Code is within the MLPA. Pursuant to Section 2861(a) of the Fish & Game Code, Respondent "shall, annually until the master plan is adopted and thereafter at least every three years, receive, consider, and promptly act upon petitions from any interested party, to add, delete, or modify MPAs, favoring those petitions that are compatible with the goals and guidelines of this chapter." Fish & Game Code § 2861(a). Petitioners UASC and Fletcher are informed and believe, and thereupon allege, that Respondent has received no petitions to add, delete or modify the MPAs that are added; modified or deleted by Respondent's adoption of the SCSR MPA Regulations.

55. Section 2861(c) of the Fish & Game Code provides: "Nothing in this chapter restricts any existing authority of the Department or the commission [Respondent] to make changes to improve the management or design of existing MPAs or designate new MPAs prior to the completion of the master plan." This section does not confer upon Respondent authority to designate, modify or delete MPAs.

56. No other subsection of Sections 2860 or 2861 of the Fish & Game Code provides Respondent with statutory authority to designate, modify or delete MPAs.

57. Section 1590 of the Fish & Game Code is part of the bill (A.B. 2800) that, upon enactment, became the MMAIA. Section 1590 of the Fish & Game Code provides, in part, that U[t]he corinnission [Respondent] may designate, delete, or modify state marine recreational management areas established by the commission for hunting purposes, state - marine reserves, and state marine conservation areas, as delineated in subdivision (a) of Section 36725 of the Public Resources Code." Section 36725(a) of the Public Resources Code is within the MMAIA. Section 1590 does not authorize Respondent to designate, delete or modify state marine reserves or state-marine conservation areas, both of which are MPAs, except in compliance with the MMAIA.

58. Section 1591(a) of the Fish & Game Code, also part of A.B. 2800, provides, in part: H[t]he Marine Managed Areas Improvement Act ... establishes a uniform classification system for state marine managed areas and is incorporated herein by reference. Any proposal for marine protected areas made after January 1, 2002, shall follow the guidelines set forth in that act." Section 1591(a) does not authorize Respondent to act on proposals for MPAs made after January 1,2002, except in compliance with the MMAIA. All of the proposals for MPAs that were adopted in the SCSR MPA Regulations were made after January 1,2002.

59. Section 1591(b) of the Fish & Game Code, also part of A.B. 2800, provides: "State marine recreational management areas established by the corninission [Respondent] for hunting purposes, state marine reserves, and state marine conservation areas shall be designated, deleted, or modified by the commission pursuant to that act. The restrictions and allowable uses applicable to those areas are as set forth in that act." "That act," as used in this provision, is the MMAIA. Section 1591(b) does not authorize Respondent to designate, delete or modify state marine reserves or state marine conservation areas, both of which are MPAs, except in compliance with the MMAIA.

60. Section 36725(a) of the Public Resources Code is within the MMAIA. The integrated preferred alternative that formed the basis for Respondents' SCSR MPA Regulations included new or modified MPAs, and each of the new or modified MPAs > within the respective study regions constituted MMAs. The MMAIA required the SICC to take certain actions with respect to MMAs, including without limitation to review proposals for new or modified MMAs and to review any proposed site-specific regulations for consistency with the state system as a whole, prior to designation of MMAs by Respondent, pursuant to Section 36725(a) of the Public Resources Code, or by the State Parks and Recreation Commission pursuant to Section 36725(b), or by the State Water
14- Resources Control Board pursuant to Section 36725(d). Petitioners UASC and Fletcher are informed and believe, and thereon allege, that the SICC did not perform any of the functions that the MMAIA required it to perform with respect to the MMAs that are included in the SCSR MPA Regulations.

61. Section 36725(e) of the Public Resources Code, also within the MMAIA, >authorizes Respondent to regulate certain activities within MMAs, but does not authorize the designation, modification or deletion of MMAs. 62. Section 2859 of the Fish & Game Code, which is within the l\.tlLPA, authorizes Respondent to adopt regulations implementing the Marine Life Protection Program concurrently with or following adoption of a final Master Plan. Respondent and other state agencies have chosen to proceed with the development of, and Respondent has chosen to purport to adopt, enforceable regulations for MPAs within geographical "study regions" of coastal California before adoption of the final Master Plan. Respondent has not adopted a final Master Plan.

63. Although Respondent did not identify Section 2859 of the Fish & Game Code as rulemaking authority for the SCSR MPA Regulations in its public notices pursuant to Gov. Code § 11346.5(a)(2), Respondent, in its ISOR relating to the SCSR MPA Regulations and other documents, and representatives of other state agencies, in numerous public documents and pronouncements relating to the "MLPA Initiative," have made repeated representations or suggestions to the public that the SCSR MPA Regulations are the product of the MLPA process. Such representations and suggestions do not constitute satisfactory notice under the APA of reliance on Section 2859 as statutory authority for adopting the SCSR MPA Regulations, even if such reliance was intended by Respondent. Accordingly, Respondent may not rely upon Section 2859 as statutory authority for adopting the SCSR MPA Regulations. Because no other .provision of the MLPA provides statutQry authority for the SCSR MPA Regulations either, the MLPA does not provide statutory authority for the SCSR MPA Regulations.

64. Even if Respondents' and others' public pronouncements linking the SCSR MPA Regulations to the t&P A process constituted adequate notice and invocation of the rulemaking authority granted to Respondent by Section 2859 of the Fish & Game Code, which is denied, such reliance is not warranted. Respondent has failed to proceed as required by law in order to adopt MPA regulations pursuant to Section 2859, in at least the following respects:

  1. (a) Adoption of a final Master Plan is a prerequisite to adoption of regulations under Section 2859. Respondent has not adopted a final Master Plan.
  2. (b) The Master Plan Team has not performed, and pursuant to the Extended MOU was not allowed to perform, several of the obligations the MLPA mandates that it perform in the preparation of the Master Plan, of which the SCSR MPA Regulations ate to become or have become a part. These obligations not performed by the Master Plan Team include requirements that the Master Plan Team, together with Department, "shall take into account relevant information from local communities, and shall solicit comments and advice for the master plan from interested parties on issues including, but not necessarily limited to, ... [p ]raCtical information on the marine environment and the relevant history of fishing and other resources use, areas where fishing is currently-prohibited, and water pollution in the state's coastal waters," "socioeconomic and environmental impacts of various alternatives," "design of monitoring and evaluation activities," and "methods to encourage public participation in the stewardship ofthe-state's MPAS." Such obligations also include a requirement that the Master Plan Team, together with Department, "shall develop a preferred siting alternative that incorporates information and views provided by people who live in the area and other interested parties, including economic information, to the extent possible while maintaining consistency with the goals of Section 2853 and guidelLrles in subdivision (c) of this section." The task of developing the preferred siting alternative within the SCSR was instead performed by the Task Force, an entity not created or recognized in the MLPA.
  3. (c) The-Department has not performed, and pursuant to the Extended MOU was not allowed to perform, several of the obligations the MLPA mandates that it perform, including without limitation the development of alternative networks of MPAs and, together with the Master Plan Team, the recommendation to Respondent, of preferred siting alternatives. Instead, those functions have been performed by the Task Force, an entity that does not exist in the MLPA and that was created by the "MLPA Initiative" and its successive MOUs. For the SCSR, the Task Force, not the Department, defined and selected the "integrated preferred alternatives" that became the "preferred siting alternatives II recommended to Respondent.
  4. (d) The Task Force has failed to conduct itself in accordance with the transparency provisions of the Extended MOU. Compliance with these provisions is essential to meeting the transparency requirements of the MLPA. The Task Force's violations of the requirement of the Extended MOU that it will convene in publicly-noticed and open meetings whenever a majority of the members is scheduled to be present undermines the impartiality and integrity of the regional MPA development process, the draft master plan, and results in a violation of the transparency required by the MLPA.

65. Regulations adopted by a state agency in excess of its statutory authority, or without compliance with all substantive and procedural prerequisites to adoption of such regulations, are void and invalid. By adopting its regulations designating, modifying or deleting MPAs in the SCSR on December 15, 2010, Respondent acted without statutory authority or in excess of its statutory authority, and without compliance with all prerequisites to adoption of such regulations.

66. The Department has made public statements that enforceable restrictions based on the SCSR MPA Regulations will become effective in mid 2011. These regulations will adversely and illegally affect the use and enjoyment, by Petitioners VASC, its members, Fletcher, .and other members of the public, of the marine resources within the SCSR.

67. Petitioners VASC and Fletcher have no plain, speedy, and adequate remedy at law. Wherefore, Petitioners VASC and Fletcher pray for relief as set forth below.

Second Cause of Action
(Declaratory and Injunctive Relief)
(By Plaintiffs UASC and Fletcher)

68. Petitioner and plaintiffs VASC and Fletcher incorporate, as if fully set forth herein, the allegations of paragraphs 1 through 67, inclusive.

69. Gov. Code § 11342.2 provides: "Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute." The SCSR MPA Regulations adopted by Respondent on December 15, 2010 fail to meet this standard for validity or effectiveness.

70. Gov. Code § 11350(a) provides, in part: "Any interested person may obtain a judicial declaration as to the validity of any regulation or order or repeal by bringing an action for declaratory relief in the superior court pursuant to the Code of Civil Procedure."

71. An actual controversy, within the meaning of Civil Procedure § 1060, has arisen and now exists between Petitioners and Respondent, in that Petitioners contend, and are informed and believe that Respondent denies, that Respondent lacked statutory authority to adopt the SCSR MPA Regulations and that said Regulations are therefore invalid. Petitioners request a declaration of determination that the SCSR MPA Regulations adopted by Respondent on December 15, 2010 are void and invalid.

72. The conduct of Respondent, unless and until enjoined and restrained by order of this Court, will cause great and irreparable injury in that the rights ofUASC and its members and of Fletcher, and other members of the public, lawfully to use and enjoy ocean resources within the SCSR without the impediment or restraint of improperly promulgated regulations, will continue to be impaired.

73. Petitioners UASC and Fletcher have no adequate remedy at law. Wherefore, Petitioners and plaintiffs UASC and Fletcher pray for relief as set forth below.

Third Cause of Action
(Writ of Mandate-Invalidity
of NCCSR MPA Regulations)
(By Petitioner CFC)

74. Petitioner CFC incorporates, as iffuUy set forth herein, the allegations of paragraphs 1 through 47, inclusive.

75. Pursuant to the California Administrative Procedures Act ("APA"), a state agency must, in its notice of proposed adoption, amendment or repeal ofa regulation, identify the authority under which the regulation is proposed and a reference to the particular code sections or other provisions of law that are being implemented, interpreted, or made specific. Cal. Gov. Code § 11346.5(a)(2).

76. As authority for adopting the NCCSR MPA Regulations, Respondent relied upon the following statutes: Section 200,202,203.1, 205(c), 219, 220, 1590, 1591,2860, 2861 and 6750 of the Fish and Game Code, and Sections 36725(a) and 36725(e) of the Public Resources Code.

77. Sections 200 - 220 of the Fish & Game Code are within Division 1, Chapter 2, Article 1 of that Code. Respondent's authority to regulate under this article is limited to "the taking or possession of birds, mammals, fish, amphibia, and reptiles .... " Fish & Game Code § 200. Many ofNCCSR MPA Regulations prohibit or regulate the taking of all "living marine resources." Not all living marine resources are birds, mammals, fish, amphibia or reptiles. To the· extent that NCCSR MPA Regulations purport to regulate living marine resources that are not birds, mammals, fish, amphibia or reptiles, such Regulations do not fall within Respondent's regulatory authority under Sections 200 220 of the Fish & Game Code. Additionally, Section 200 of that Code provides: "[n]o power is delegated to the commission by this article to regulate the taking, possessing, processing, or use of fish, amphibian, kelp, or other aquatic plants for commercial purposes." Many of the NCCSR MPA Regulations apply to commercial activities. To the extent that the NCCSR MPA Regulations apply to commercial activities, such Regulations do not fall within Respondent's regulatory authority under Sections 200 - 220 of the Fish & Game Code.

78. Section 6750 of the Fish & Game Code authorizes Respondent to "regulate the taking, collecting, harvesting, gathering, or possession of kelp for purposes other than profit." Many of the NCCSR MPA Regulations regulate activities other than the noncommercial use of kelp. To the extent that such Regulations regulate activities other than the noncommercial use of kelp, such Regulations do not fall within Respondent's regulatory authority under Section 6750 of the Fish & Game Code.

79. Section 2860 of the Fish & Game Code is within the MLPA. Pursuant to Section 2860(a) of the Fish & Game Code, Respondent "may regulate commercial and recreational fishing and any other taking of marine species in MPAs." Section 2860(a) does not provide Respondent with statutory authority to adopt, modify or delete MPAs. The regulations adopted by Respondent for the NCCSR MPAs include the adoption, modification and/or deletion of MPAs.

80. Section 2861 of the Fish & Game Code is within the IVlLPA. Pursuant to Section 2861(a) of the Fish & Game Code, Respondent "shall, annually until the master plan is adopted and thereafter at least every three years, receive, consider, and promptly act upon petitions from any interested party, to add, delete, or modify MPAs, favoring those petitions that are compatible with the goals and guidelines of this chapter."· Fish & Game Code § 2861(a). Petitioner CFC is informed and.believes, and thereupon alleges, that Respondent has received-no petitions to add, delete or modify the MPAs that are created, modified or deleted by Respondent's adoption of the NCCSR MPA Regulations.

81. Section 2861(c) of the Fish & Game Code provides "Nothing in this chapter restricts any existing authority of the Department or the commission [Respondent] to make changes to improve the management or design of existing MPAs or designate new MPAs prior to the completion of the master plan." This section does not confer upon Respondent authority to designate, modify or. delete MPAs.

82. No other subsection of Sections 2860 or 2861 of the Fish & Game Code provides Respondent with statutory authority to designate, modify or delete MPAs.

83. Section 1590 of the Fish & Game Code is part of the bill (A.B. 2800) that, upon enactment, became the MMAIA. Section 1590 of the Fish & Game Code provides, in part, that "[t]he commission [Respondent] may designate, delete~ or modify state marine recreational management areas established by the commission for hunting purposes, state marine reserves, and state marine conservation areas, as delineated in subdivision (a) of Section 36725 of the Public Resources Code." Section 36725(a) of the Public Resources Code is within the MMAIA. Section 1590 does not authorize Respondent to designate, delete or modify state marine reserves or state marine conservation areas, both of which are MPAs, except in compliance with the MMAIA.

84. Section 1591(a) of the Fish & Game Code, also pa.rt-of A.B. 2800, provides, in part: "[t]he Marine Managed Areas Improvement Act ... establishes a uniform classification system for state marine managed areas and is incorporated herein by reference. Any proposal for marine protected areas made after January 1,2002, shall follow the guidelines set forth in that act." Section 1591(a) does not authorize Respondent to act on proposals for MPAs made after January 1, 2002, except in compliance with the MMAIA. All of the proposals for MPAs that were adopted in the NCCSR MPA Regulations were made after January 1,2002.

85. Section 1591(b) of the Fish & Game Code, also part of A.B. 2800, provides: "State marine recreational management areas established by the commission [Respondent] for hunting purposes, state marine reserves, and state marine conservation areas shall be designated, deleted, or modified by the commission pursuant to that act. The restrictions and allowable uses applicable to those areas are as set forth in that act." "That act," as used in this provision, is the MMAIA. Section 1591 (b) does not authorize Respondent to designate, delete or modify state marine reserves or state marine conservation areas, both of which are MPAs, except in compliance with the MMAIA.

86. Section 36725(a) of the Public Resources Code is within the MMAIA. The integrated preferred alternative that formed the basis for Respondents' NCCSR MPA Regulations included new or modified MPAs, and each of the new or modified MPAs within the respective study regions constituted MMAs. The MMAIA required the SICC to take certain actions with respect to MMAs, including without limitation to review proposals for new or modified MMAs and to review any proposed site-specific regulations for consistency with the state system as a whole, prior to designation of MMAs by Respondent, pursuant to Section 36725(a) of the Public Resources Code, or by the State Parks and Recreation Commission pursuant to Section 36725(b), or by the State Water Resources Control Board pursuant to Section 36725{ d) Petitioner CFC is infonned and believe, and thereon allege, that the SICC did not perform any of the functions that the MMAIA required it to perform with respect to the MMAs that are included in the NCCSR MPA Regulations.

87. Section 36725(e) of the Public Resources Code, also within the MMAIA, authorizes Respondent to regulate certain activities within MMAs, but does not authorize the designation, modification or deletion of MMAs.

88. Section 2859 of the Fish & Game Code, which is within the MLPA, authorizes Respondent to adopt regulations implementing the Marine Life Protection Program concurrently with or following adoption of a final Master Plan. Respondent and other state agencies have chosen to proceed with the development of, and Respondent has chosen to purport to adopt, enforceable regulations for MPAs within geographical "study regions" of coastal California before adoption ofihe final Master Plan. Respondent has not adopted a final Master Plan.

89. Although Respondent did not identifY Section 2859 of the Fish & Game Code as rulemaking authority for the NCCSR MPA Regulations in its public notices pursuant to Gov. Code § 11346.5(a)(2), Respondent, in its ISOR relating to the NCCSR MPA Regulations and other documents, and representatives of other state agencies, in numerous public documents and pronouncements relating to the "MLPA Initiative, II have made repeated representations or suggestions to the public that the NCCSR MPA Regulations are the product of the MLPA process. Such representations and suggestions do not constitute satisfactory notice under the APA of reliance on Section 2859 as statutory authority for adopting the NCCSR MPA Regulations, even if such reliance was intended by Respondent. Accordingly, Respondent may not rely upon Section 2859 as statutory authority for adopting the NCCSR MPA Regulations. Because no other provision of the MLPA provides statutory authority for the NCCSR MPA Regulations either, the MLPA does not provide statutory authority for the NCCSR MPA Regulations.

90. Even ifRespondents' and others' public pronouncements linking the NCCSR MPA Regulations to the MLPA process constituted adequate notice and invocation of the rulemaking authority granted to Respondent by Section 285-9 ofthe Fish & Game Code, which is denied, such reliance is not warranted. Respondent has failed to proceed as required by law in order to adopt MPA regulations pursuant to Section 2859, in at least the following respects:

  1. (a) Adoption of a final Master Plan is a prerequisite to. adoption of regulations under Section 2859. Respondent has not adopted a final Master Plan.
  2. (b) The Master Plan Team has not performed, and pursuant to the Second MOU was not allowed to perform, several of the obligations the MLPA mandates that it perform in the preparation of the Master Plan, of which the NCCSR MPA Regulations are to become or have become a part. These obligations not performed by the Master Plan Team include requirements that the Master Plan Team, to.gether with Department, "shall take into account relevant information from local communities, and shall solicit co.mments and advice for the master plan from interested parties on issues including, but not necessarily limited to, ... [p ]ractical information on the marine environment and the relevant history of fishing and other resources use, areas where fishing is currently prohibited, and water pollution in the state's coastal waters," "socioeconomic and environmental impacts of various alternatives," "design of monitoring and evaluation activities," and "methods to encourage public participation in the stewardship of the state's MPAs. II Such obligations also include a requirement that the Master Plan Team, together with Department, "shall develop a preferred siting alternative that incorporates information and views provided by people who live in the area and other interested parties, including econo.mic information, to the extent possible while maintaining consistency with the goals of Section 2853 and guidelines in subdivision (c) of this section." The task of developing the preferred siting alternative within the NCCSR was instead performed by the Task Force, an entity not created or recognized in the MLPA.
  3. (c) The Department has not performed, -and pursuant to the Second MOU was not allowed to perform, several of the obligations the MLPA mandates that it perform, including without liIPitation the development of alternative networks of MPAs and, together with the Master Plan Team, the recommendation to Respondent, of preferred siting alternatives. Instead, those functions have been performed by the Task Force, an entity that does not exist in the MLPA and that was created by the "MLPA Initiative" and its successive MOUs. For the NCCSR, the Task Force, not the Department, defined and selected the "integrated preferred alternatives" that became the "preferred siting alternatives II recommended to Respondent.
  4. (d) The Task Force has failed to conduct itself in accordance with the transparency provisions of the Second MOU. Compliance with these provisions is essential to meeting the transparency requirements of the MLPA. The Task Force's violations of the requirement of the Second MOU that it will convene in publicly noticed and open meetings whenever a majority of the members is scheduled to be present undennines the impartiality and integrity of the regional MPA development process, the draft master plan, and results in a violation of the transparency required by the MLPA.

91. Regulations adopted by a state agency in excess of its statutory authority, or without compliance with all substantive and procedural prerequisites to adoption of such regulations, are void and invalid. By adopting its regulations designating, modifying or deleting MPAs in the NCCSR on August 5, 2009, Respondent acted without statutory authority or in excess of its statutory authority, and without compliance with all prerequisites to adoption of such regulations.

92. Enforceable restrictions based on the NCCSR MPA Regulations became effective on May 1, 2010. These regulations adversely and illegally affect the use and enjoyment, by Petitioner CFC, its members, and other members of the public, of the marine resources within the NCCSR.

93. Petitioner CFC has no plain, speedy, and adequate remedy at law. Wherefore, Petitioner CFC prays for relief as set forth below.

Fourth Cause of Action
(Declatory and Injunctive Relief)
(By Plaintiff CFC)

94. Petitioner and plaintiff CFC incorporates, as if fully set forth herein, the allegations of paragraphs 1 through 47 and 75 through 93, inclusive.

95. Gov. Code § 11342.2 provides: "Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute." The NCCSR MPA Regulations adopted by Respondent on August 5, 2009 fail to meet this standard for validity or effectiveness.

96. Gov. Code § 11350(a) provides, in part: "Any interested person may obtain a judicial declaration as to the validity of any regulation or order or repeal by bringing an action for declaratory relief in the superior court pursuant to the Code of Civil Procedure."

97. An actual controversy, within the meaning of Civil Procedure § 1060, has arisen and now exists between Petitioner CFC and Respondent, in that Petitioner CFC contends, and are informed and believe that Respondent denies, that Respondent lacked statutory authority to adopt the NCCSR MPA Regulations and that said Regulations are therefore invalid. Petitioner CFC requests a declaration or determination that the NCCSR MPA Regulations adopted by Respondent on August 5, 2009 are void and invalid.

98. The conduct of Respondent, unless and until enjoined and restrained by order pfthis Court, will cause great and irreparable injury in that the rights of CFC and its members, and other members of the public, lawfully to use and enjoy ocean resources within the NCCSR without the impediment or restraint of improperly promulgated regulations, will continue to be impaired. 99. Petitioner CFC has no adequate remedy at law. Wherefore, Petitioner CFC prays for relief as set forth below.

Fifth Cause of Action
(Declatory and Injunctive Relief)
(By All Petitioners)

100. Petitioners UASC, CFC and Fletcher incorporate, as if fully set forth herein, the allegations of paragraphs 1 through 99, inclusive.

101. Under the California Coastal Act, Pub. Res. Code §§ 30000 et seq. ("Coastal Act"), "the economic, commercial, and recreational importance of fishing activities shall .be recognized and protected." Pub. Res. Code § 30234.5.

102. The goals and objectives of the Coastal Act are implemented in part through a permit process. Section 30600(a) provides: "Except as provided in subdivision (c); and in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, any person, as defined in Section 21 066 [of the Public Resources Code], wishing to perform or undertake any development in the coastal zone, other than a facility subject to Section 25500, shall obtain a coastal development permit." Coastal development permits are issued by the California Coastal Commission, or by qualified local governments pursuant to a certified local coastal program.

103. Respondent is a "person" within the meaning of Pub. Resources Code § 21066.

104. The waters off the coast of California in the NCCSR and the SCSR are or include areas that fan within the "coastal zone" within the meaning of Pub. Resources Code § 30103(a).

105. The NCCSR and SCSR MPA Regulations, as adopted by Respondent, constitute "developments" withln the meaning of Pub. Resources Code § 30106, in that they effect a "change in-the intensity of use of water, or of access thereto."

106. By adopting the NCCSR and SCSR MPA Regulations, Respondent "undertook" a "development" in the" coastal zone."

107. Petitioners are informed and believe, and thereon allege, that Respondent did not apply for or procure any coastal development permit prior to adopting the NCCSR or the SCSR MPA Regulations.

108. Respondent is not exempt or excused from the requirement to obtain a coastal development permit prior to undertaking a development, such as the development embodied in the SCSR MPA Regulations, in the coastal zone. Specifically:

  1. (a) Petitioners are informed and believe, and thereon allege, that the California Coastal Commission has not, after public hearing and by two-thirds vote of its appointed members, described or identified the adoption of MPAs by category and found that there is no potential for any significant adverse effect, either individually or cumulatively, on coastal resources or on public access to, or along, the coast, and that the exclusion of MPA designations will not impair the ability of local government to prepare a local coastal program. (See Pub. Res. Code § 30610(e).)
  2. (b) The scope of restrictions on "take" in some MPAs in the SCSR and NCCSR, such as restrictions on "take" of "all living marine resources," extends to living marine resources of which fish species are but one subset. Since the Project effects a "change in intensity of the use of water, or access thereto" with respect to all living marine resources in some MPA's, the coastal development permit exemption applicable to any controls regarding wildlife and fishery management programs does not excuse the Respondent from obtaining a coastal development permit with respect to its regulations governing all other living marine resources. (See Pub. Res. Code § 30411(a).)

109. Public Resources Code Section 30803(a) provides: "Any person may maintain an action for declaratory and equitable relief to restrain any violation of this division [the California Coastal Act] .... On a prima facie showing of a violation of this division, preliminary equitable relief shall be issued to restrain any further violation of this division. No bond shall be required for an action under this section." Petitioners are "persons" within the meaning of this provision.

110. An actual controversy has arisen and now exists between Petitioners and Respondent regarding Respondent's compliance with the California Coastal Act, and Petitioners request a detennination of this Court that Respondent's SCSR and NCCSR MP Regulations are invalid due to Respondent's failure to procure coastal development permits, as required by the California Coastal Act, prior to adopting them.

111. The conduct of Respondent in adopting regulations without complying with California law, unless and until enjoined and restrained by order of this Court, will cause great and irreparable injury in that Petitioners UASC and CFC and- their members, of Petitioner Fletcher, and of other members of the public, should not suffer impairment of their rights lawfully to use and enjoy ocean resources within the SCSR and NCCSR except by regulations that have been adopted in accordance with applicable law.

112. Petitioners have no adequate remedy at law. Wherefore, Petitioners pray for relief as set forth below.

Sixth Cause of Action
(Writ of Mandate Under CEQA)
(By Petitioners UASC and CFC Only)

113. Petitioners UASC and CFC incorporate, as if fully set forth herein, the allegations of paragraphs 1 through 67, inclusive. For-purpose of this and all allegations of this Petition and Complaint that follow, IIPetitionersll shall be deemed to refer to UASC and CFC only.

114. For purposes of the Sixth and Seventh Causes.of Action, the "Project" is the "South Coast Marine Protected Areas Project" as defined in the Final Environmental Impact Report (flFEIR") certified by the Respondent on December 15, 2010, except as modified by the regulatory options selected by Respondent after the close of public comment at its public hearing on December 15, 2010.

115. Respondent is the lead agency responsible under the California Environmental Quality Act, Pub. Res. Code §§ 21000 et seq. (HCEQAfI) for evaluating the environmental impacts of the Project.

116. Respondent caused a draft environmental impact report ("DEIR") for the Project to be prepared and circulated from August 18, 2010 to October 19, 2010.

117. Respondent completed a final environmental impact report ("FEIRH) on or about December 7, 2010.

118. By resolution dated December 15, 2010, Respondent resolved to certify the adequacy of-the FEIR under CEQA, and it made a fmding that the Project win not have an significant adverse impact on the environment. Also on December 15, 2010, Respondent approved the Project.

119. On December 28, 2010, Respondent filed a notice of decision with the Secretary of the Natural Resources Agency. Such notice makes reference to Pub. Res. Code § 21080.5, which pertains to "certified regulatory programs" pursuant to which a qualifying state or local agency may comply with CEQA without preparing an EIR. The Natural Resources Agency has certified the regulatory program of Respondent pursuant to the Fish and Game Code as meeting the requirements of Pub. Res. Code § 21080.5. 14. C.C.R. § 15251 (b). Respondent purported to adopt the SCSR MPA Regulations pursuant to regulatory authority set forth in the Fish & Game Code.

120. Petitioners are informed and believes, and thereon alleges, that on January 10, 2011, the Governor's Office of Planning and Research received, and filed, a Notice of Determination (NOD) to carry out the Project. Such filing is required where a lead agency is not acting pursuant to a certified regulatory program. Respondent purported to adopt the SCSR MPA Regulations pursuant to regulatory authority set forth in the MMAIA, which is not codified in the Fish & Game Code and therefore cannot fall within the scope of any certified regulatory program. Respondent was required to file the NOD within five working days after deciding to approve the Project. 14 C.C.R. § 15094(a). Respondent failed to meet this requirement.

121. Petitioners timely objected to the Project, and Petitioners and other agencies, interested groups and individuals timely made oral and written comments on the DEIR and raised each of the legal deficiencies asserted in this petition, except for deficiencies relating to the definition of the Project and the failure to assess the environmental impacts of the Proj ect to the extent that it differed, as approved by Respondent following selection of regulatory options after the close of the public comment period at Respondent's December 15, 2010 public meeting, from the project analyzed in the DEIR and FEIR. As to such deficiencies there was no opportunity for members of the public to raise such objections orally or in writing prior to the approval of the project, and Respondent failed to give the notice required by law for such changes-to the proposed SCSR MPA Regulations.

122. Petitioners performed all conditions precedent to filing this action by complying with the requirements of Public Resources Code § 21167.5 in serving notice of action on January 25, 2011. Petitioners are informed and believe, and thereon allege, that said notice was received by Respondent on January 26, 2011. Proof of service of such notice is filed concurrently herewith.

123. To the extent that Respondent did not act pursuant to a certified regulatory program, Respondent's actions in certifYing the FEIR and fmding that the Project will not have a significant adverse impact on the environment constitute a prejudicial abuse of discretion in that Respondent failed to proceed in the manner required by law, and its decision is not supported by substantial evidence, as alleged in the following paragraphs:

124. Improper segmentation/piecemealing. The FEIR fails to evaluate the evaluate the MLPA's significant environmental impacts on a statewide basis, as required by CEQA. Under CEQA, a "'project' means the whole of an action, which has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment .... " 14 CCR § 15378(a) (emphasis supplied). The MLPA contemplates the adoption and implementation, to the extent possible, of a state-wide network of MPAs in accordance with policies articulated in the MLPA. To accomplish this, the MLPA calls for preparation of a single Master Plan for California. The statewide MPA network is, or should have been, the "project." Because Respondent did not prepare a program EIR for MLPA implementation, it has not previously assessed the environmental impacts of later elements of the statewide project in the North Coast and San Francisco Bay Study Regions. Accordingly, CEQA requires the EIR for the SCSR to analyze the environmental impacts of these later phases of the statewide project. However, the FEIR's discussion of the Project's significant impacts on the environment pertains to impacts in the SCSR only, thereby improperly piece-mealing environmental review in violation of CEQA.

125. Insufficient baseline description. The FEIR's "Envirofl.mental Setting" sections failed to include a description -of the physical environmental conditions in the vicinity of the various proposed MPAs as they existed at the time of the notice of preparation of the FEIR. Instead, for its description of baseline physical conditions, the FEIR provides only a description of the regional setting of the project area, and with only a few exceptions, the FEIR's baseline analysis lists only the pre-existing MPAs without reference to the environmental baseline specific to the areas of the proposed MPAs. In the absence of a baseline physical condition specific to each of the proposed MPAs, Respondent lacked information necessary to assess the potential environmental impacts associated with the Project. For example, and without limitation, the FEIR's "Environmental Setting" sections fails to describe the frequency and type of fishing at each of the proposed MPAs, thereby depriving Respondent and the public of a meaningful assessment of the magnitude of displaced or diverted fishing effort following designation of such areas as MPAs; it fails to describe the existing marine habitat at each of the proposed MPAs, thereby depriving Respondent and the public of a meaningful assessment of impacts of MPA designation on such habitats, such as potential invasive species impacts resulting from the potential for increased non-consumptive recreational activities at the new MPA; and it fails to describe the proximity of the proposed MPAs to existing terrestrial or marine contaminant sources, thereby depriving Respondent and the public of a meaningful assessment of the potential for subsequent relocations of the contaminant sources and the indirect but foreseeable environmental effects associated with such relocations. These failures to adequately describe the environmental baseline for the proposed MPAs not only deprived the Commission of information necessary to assess the effects of its action, it deprived the public of information necessary to submit fully informed comments on the DEIR.

126. Inadequate assessment of indirect environmental impacts. The FEIR fails to evaluate the Project's significant impacts on the environment by failing to adequately analyze the environmental impacts resulting from a reduction in economic activity in the SCSR due to the Project.

127. Inadequate assessment of impacts on public services. The FEIR fails to evaluate the Project's significant impacts on the environment by failing to conduct an analysis based on substantial evidence of the Project's impact on public services, including enforcement resources that are needed to police the restrictions imposed in MPAs adopted or modified by the Project. There is substantial evidence in the record that Department enforcement resources, which are historically inadequate even without the Project, will be further stretched and impaired by the Project. There is no substantial evidence that the impact of the Project on these public services will not be significant and adverse, yet the FEIR concludes that such impacts are insignificant.

128. Inadequate assessment of impacts on the physical environment from insufficient enforcement resources. The FEIR fails to provide for or explain how there will be adequate resources to enforce the new MPAs and new restrictions within existing MPAs. Further stretching enforcement resources to meet the new requirements of new MPAs in the SCSR will inevitably reduce the availability of existing enforcement resources elsewhere, with adverse impacts on the environment, including biological resources, in those other locations. The FEIR fails to evaluate the Project's significant impacts on the environment by failing to evaluate, on the basis of substantial evidence, the risk that imposing closures to fishing through adoption of MPAs without adequate enforcement resources to police such closures will encourage lawless and criminal behavior. The FEIR fails to consider or analyze these adverse environmental impacts of the Project.

129. Inadequate assessment of adverse impacts on a variety of resources due to displaced or divertedfishing effort. The FEIR fails to evaluate the Project's significant impacts on the environment by failing adequately to assess, on the basis of substantial evidence, the nature and degree of displacement or diversion of fishing activity from former fishing grounds closed by the Project to other areas. The FEIR's analysis of di~placed fishing effort rests on the illogical assumption, unsupported by substantial evidence, that anglers who can no longer fish in areas closed to fishing due to designation of an MPA will congregate their fishing effort just outside the boundaries of the 1v1P As, regardless of whether there are adequate fishing opportunities at such boundaries and regardless of crowding and overfishing in such boundary areas. There is no substantial evidence to support this assumption, and substantial evidence to refute it. Nevertheless, the FEIR's discl;lssion of the impacts of the Project on air quality, greenhouse gas emissions, water quality, land use and recreational resources, biological resources, hazardous materials, and vessel traffic, are all based in part on this groundless assumption. As a result, the FEIR's conclusion that the impacts of the Project with respect to these resources are not significant is unsupported by substantial evidence.

130. Inadequate assessment of reasonably foreseeable consequences of the Project in connection with currently permitted non-conforming uses and activities. The FEIR fails to describe the Project completely by failing to describe the "whole of an action," including the "reasonably foreseeable indirect physical change in the environment." 14 C.C.R. § 15378. The FEIR acknowledges that in many of the areas designated as MPAs by the Project, human activity that could result in a "take" of living marine resources within those areas, which would otherwise be in violation of the restrictions associated with MPA designation or interfere wiL~'no-take or limited take restrictions, are allowed under "current" permits or leases. Such activities include but are not limited to maintenance dredging and beach nourishment, use and maintenance of artificial structures such as wastewater outfalls, piers and jetties, and mh'1.eral recovery facilities and product distribution systems. The FEIR states that the MPA designations will not affect the rights of permit- or lease-holders under current permits and leases, but fails adequately to address the impacts on the resources covered by such current permits and leases when those permits or leases expire. On application for permit or lease renewal or reissuance, these activities may have to be halted, and possibly removed and relocated, as a consequence of the MPA designations, because many of the MPAs included in the SCSR MPA Regulations contain a prohibition against the take of "all living marine resources." The FEIR states that the future take of marine resources caused by such nonconfonrJng uses following permit or lease expiration may be "authorized by the Department," but the Department lacks the necessary legal authority to do so. Consequently, it is at least reasonably foreseeable that an indirect effect of the Project will be to require the removal and! or relocation of existing non-conforming uses in the MPAs. The physical impacts associated with such removal and relocation are reasonably foreseeable potentially significant impacts on the environment that the FEIR improperly Ignores.

131. Improper analysis, pursuant to the wrong legal standard, of cumulative impacts of the Project. The FEIR's discussion of cumulative impacts is inadequate in that it applies the wrong standard for assessing cumulative impacts, asking whether the Project would "contribute considerably" to "cumulative impacts," when the proper consideration under CEQA is whether the Project's incremental effect is "cumulatively considerable," that is, whether the Project's incremental effects, though not significant in themselves, are significant in the context of the effects of past, present, and probable future projects. The FEIR's erroneous formulation of the question of cumulative impacts does not address that . required consideration. As a result, the cumulative impacts analysis fails to meet minimum standards required by CEQA.

132. Failure to consider impacts of statewide implementation of MLPA in cumulative impacts analysis. The FEIR's cumulative impacts analysis fails to consider the impacts of the Project in the context of the statewide implementation of the :MLPA. Respondent should have treated the SCSR as part of a larger undertaking or part of a larger project - the statewide network of MPAs - but, having failed to do so, it compounded its error by failing to consider the cumulative impact of the SCSR MPA Regulations in the context of the larger project. The failure of the FEIR to do' so is a violation of Section 15165 of the CEQA Guidelines, 14 C.C.R § 15165, which provides: "Where one project is one of several similar projects of a public a~ency, but is not deemed a part of a larger undertaking or a larger project, the agency may prepare one EIR for an projects, or one for each project, but shall in either case comment on the cumulative effect."

133. Improper analysis of impacts of the Project on biological resources. The FEIR fails to properly evaluate the Project's significant impacts on biological resources by improperly balancing benefits of the Project to biological resources in certain areas of the SCSR against detriments of the Project to biological resources in other areas of the SCSR. Where impacts are adverse and significant, an EIR must describe and acknowledge them, and require feasible mitigation measures to reduce them, and it may not discount their significance and avoid mitigation by weighing them against other benefits of the Project.

134. Improper and inadequate analysis of Project alternatives. CEQA requires that an EIR identify feasible alternatives that would substantially lessen significant adverse effects of a project. The FEIR's discussion of alternatives to the Project, which includes purported comparisons of the environmental impacts of the Project and of the alternatives, is inadequate because its description of the impacts of the Project is inadequate. Where, for example, the FEIR overstates the benefits of MPAs in the Project on the basis of its unsupported assumption that MPAs will be adequately enforced, or where the FEIR fails to acknowledge a significant adverse environmental impact due to inadequate enforcement resources, the FEIR's comparison of Project with alternatives to the Project, that may be impacted differently due to the shortage of -enforcement resources, is necessarily flawed and inadequate. With respect to each impact of the Project on each environmental resource that the FEIR fails adequately to describe and/or assess on the basis of substantial evidence, the alternatives analysis in the FEIR is also flawed and inadequate in its comparison of the environmental impacts of the Project to the environmental impacts of alternatives.

135. Failure to identify feasible mitigation measures. CEQA requires that an EIR identify feasible measures to mitigate the significant adverse environmental impacts of a project. To the extent that the FEIR should have identified environmental impacts of the Project as adverse, which the FEIR does not do, the FEIR is inadequate because it also fails to identify feasible measures to mitigate them, as required by CEQA.

136. Improper failure to recirculate DEIR. Respondent was required, but failed, to revise-or supplement the DEIR in response to comments and to recirculate it for agency and public review and comment in order to provide the public and decision-makers with a reasonably adequate description and analysis of significant environmental effects of the Project. Recirculation was required because of the substantial revisions and significant new information that would be needed to ensure that other public agencies, and the public, have a meaningful opportunity to comment on significant environmental effects of the Project, and on proposed mitigation measures that must be identified in order to address those impacts. Such new information was needed for an adequate DEIR and is not merely information that amplifies on or clarifies points in the DEIR. 137. As a result of foregoing defects and failures, Respondent violated its duties to certify an adequate EIR and adopt findings conforming to the requirements of CEQA and the CEQA Guidelines. Such violation constitutes an act contrary to law and an abuse of discretion. Accordingly, certification of the FEIR and approval of the SCSR MPA Regulations must be set aside

Wherefore, Petitioners pray for relief as set forth below.

Seventh Cause of Action
(Writ of Mandate Under CEQ)
(By Petitioners UASC and CFC Only)

138. Petitioners UASC and CFC incorporate, as if fully set forth herein, the allegations of paragraphs 1 through 67 and 113 though 137, inclusive.

139. To the extent that Respondent purported to adopt the SCSR MPA Regulations pursuant to its regulatory authority under a certified regulatory program, its compliance with CEQA is evaluated, as required by Pub. Res. Code § 21080.5, without reference to the requirements of Chapter 3 of CEQA, pertaining to the requirements for environmental impact reports prepared by state agencies, boards and commissions. In this instance, however, Respondent must meet the requirements of the certified regulatory program, and.is still required to identifY all significant environmental impacts of its Project, to assess cumulative impacts, and-to include feasible alternatives or feasible mitigation measures that would substantially lessen any significant adverse effects of the Project. It may do so through a document that serves th.e functional equivalent to an EIR, known as a "functional equivalent document."

140. Treating the FEIR as a "functional equivalent document," Respondent failed to meet the requirements of CEQA applicable to its approval of the SCSR MPA Regulations in all of the same respects that it failed to approve an adequate EIR, as alleged hereinabove, except that the requirements for recirculation of the DEIR do not apply insofar as the DEIR was treated as a draft "functional equivalent document."

141. Approval of the Project on the foregoing basis constitutes "an abuse of discretion and an act contrary to law. Wherefore, Petitioners pray for relief as set forth below.

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Prayer

Wherefore, Petitioners pray for the following relief:

  1. On the First Cause of Action, that this Court issue an appropriate Writ of Mandate pursuant to California Code of Civil Procedure § 1085 directing Respondent to vacate and set aside its approval of its South Coast Study Region MPA Regulations adopted December 15, 2010.
  2. On the Second Cause of Action, that this Court issue a judgment declaring that Respondent's South Coast Study Region MPA Regulations adopted December 15, 2010, are void and unenforceable, and that this Court issue preliminary and permanent injunctive relief ordering Respondent to withdraw such regulations and restraining Respondent from adopting further MPA Regulations applicable to the South Coast Study Region unless it has valid statutory authority to do so.
  3. On the Third Cause of Action, that this Court issue an appropriate Writ of Mandate pursuant to California Code of Civil Procedure § 1085 directing Respondent to vacate and set aside its approvals of its North Central Coast Study Region MPA Regulations adopted August 5, 2009.
  4. On the Fourth Cause of Action, that this Court issue ajudgment declaring that Respondent's North Central Coast Study Region MPA Regulations adopted August 5, 2009, are void and unenforceable, and that this Court issue preliminary and permanent injunctive relief ordering Respondent to withdraw such regulations and restraining Respondent from adopting further MPA Regulations applicable to the North Central Coast Study Region unless it has valid statutory authority to do so.
  5. On the Fifth Cause of Action, that this Court issue a judgment declaring that Respondent's North Central Coast Study Region MPA Regulations and South Coast Study Region MPA Regulations are null and void due to Respondent's failure to procure the required coastal development permit, and that this Court issue preliminary and penna,nent injunctive relief restraining Respondent from adopting further MPA Regulations except in compliance with applicable provisions of the California Coastal Act.
  6. On the Sixth Cause of Action, that this Court issue an appropriate Writ of Mandate pursuant to California Code of Civil Procedure § 1085 vacating and setting aside Respondentls ,certification that it prepared the FEIR in compliance with CEQA, and setting aside Respondent's decision to carry out the Project;
  7. On the Seventh Cause of Action, that this Court issue an appropriate Writ of Mandate pursuant to California Code of Civil Procedure § 1085 vacating, setting aside, voiding and annulling Respondent's decision to adopt the SCSR MPA Regulations that it approved on December 15, 2010 pursuant to a certified regulatory program.
  8. For reasonable attorneys' fees.
  9. For costs of suit incurred herein.
  10. For such other and further relief as the Court may deem proper.

Dated: January 27, 2011

Allen Matkins Leck Gamble
Mallory & Natsis LLP
David D. Cooke
Marvin E. Garrett

Attorneys for Petitioners and Plaintiffs
United Anglers of Southern California,
Coastside Fishing Club, and Robert C. Fletcher