Judge James C. Chalfant, Case 22STCP02661 2023-02-28 Tentative Ruling

United Water Conservation District v. California Fish and Game Commission, 22STCP02661

Tentative decision on motion to augment record: granted

Petitioner United Water Conservation District (“United”) moves to augment the record with 28 attachments to an August 17, 2021 letter sent from United to the California DFW of Fish and Wildlife (“DFW”) and Respondent California Fish and Game Commission (“Commission”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner United commenced this proceeding on July 18, 2022 against Respondent Commission alleging traditional and administrative mandamus. The Petition alleges in pertinent part as follows.

The California Endangered Species Act (“CESA”) (Fish & Game (“F&G”) Code §2050 et seq.), was enacted to conserve, protect, restore, and enhance any endangered species or any threatened species and its habitat. F&G Code section 2070 requires the Commission to establish a list of endangered species and a list of threatened species. A “threatened species” is a native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant that, although not presently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of required special protection and management efforts. F&G Code §2067. A “candidate species” is a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which the Commission has formally noticed as being under review by DFW for addition to either the list of endangered species or the list of threatened species, or for which the Commission has published a notice of proposed regulation to add to either list. F&G Code §2068.

Any interested party can submit a petition to list a species under CESA. The species becomes a candidate species once the Commission accepts the petition for consideration and publishes a notice of findings that accept it.

Upon receipt of a listing petition, the Commission forwards the listing petition to DFW for an evaluation report assessing whether the petition provides sufficient scientific information for each of the 12 required informational data sets to indicate that listing may be warranted. After DFW recommends that the Commission either reject of accept the petition, the Commission must hold a noticed public hearing to receive the report and consider the petition, the report, written comments, and oral testimony.

If the petition fails to include sufficient scientific information in each of the 12 data sets in F&G Code section 2072.3, the Commission must reject the petition. Title 14, Code of Regulations (“CCR”) sections 670.1(b) and (e)(1). A petition has sufficient information on a data set if that amount of information, when considered with DFW’s written report and the comments received, would lead a reasonable person to conclude that the petitioned action may be warranted.

If the Commission approves the listing petition for consideration, the subject species becomes a candidate species and is immediately granted CESA protections during the 12-month candidacy period. The Commission can craft exceptions to this broad protection, such as by authorizing the taking of any candidate species subject to terms and conditions it prescribes that are based on the best available scientific information.

After the Commission approves the listing petition for consideration, DFW has 12 months to prepare a more detailed and peer reviewed evaluation report and recommendation to the Commission. The Commission must then hold another noticed public hearing for final consideration of the listing petition.

On June 7, 2021, California Trout (“CalTrout”) submitted a petition to list the Southern California steelhead (Oncorhynchus mykiss, or O. mykiss) as an endangered species under CESA. The Southern Steelhead has an anadromous form called steelhead and a resident form often called rainbow trout. Because of a rainbow trout’s ability to express an anadromous life history, CalTrout’s petition admitted that rainbow trout are an integral part of the Southern Steelhead population and play a central role to the continued existence of Southern Steelhead. Rainbow trout are plentiful and more viable than steelhead O. mykiss yet contribute to the persistence of the overall species. The CalTrout petition only seeks to protect steelhead O. mykiss.

Despite this fact, the CalTrout petition conflates the anadromous and resident forms of the Southern Steelhead. Almost all evidence presented in the petition concerns the steelhead O. mykiss. On October 4, 2021, DFW asked CalTrout to clarify whether it sought to list both forms of trout. CalTrout replied that it defined the target species as both forms of O. mykiss, but never submitted additional evidence that the rainbow trout faces a threat.

DFW recommended the CalTrout petition for the Commission’s consideration, although acknowledging that the petition’s information on the rainbow trout is insufficient. DFW claimed that it had internal data on rainbow trout but did not present any information to fill the outstanding gaps.

Multiple interested parties provided significant evidence that the CalTrout petition failed to meet CESA’s basic informational requirements. The Commission held a noticed public hearing on the CalTrout petition on February 17, 2022. DFW’s presentation at the hearing only used evidence about the steelhead O. mykiss. CalTrout’s presentation afterwards acknowledged that the anadromous and resident varieties are distinct, and that the resident variety has a healthy population.

The Commission continued the decision until its next meeting on April 20-21, 2022 and made it clear that this continuance was to consider 2084 Exceptions. United and other interested parties submitted a proposed 2084 Exception on April 7, 2022. United requested that it receive 15 minutes to present at the next hearing; the Commission reduced it to five minutes.

At the April 21, 2022 hearing, the Commission approved the CalTrout petition as having sufficient information to indicate that the petitioned action may be warranted. It rejected the proposed 2084 Exception and passed a more limited one that requires any taking to meet four separate requirements. This exception could compel projects currently required by court decree and supervised by federal and state agencies to either reduce operations or violate a court order. The Office of Administrative Law published the Commission’s findings on May 13, 2022.

Petitioner United seeks (1) a stay of the Commission’s action under CCP section 1094.5(g), (2) a writ of mandate compelling the Commission to vacate its approval of the CalTrout petition for consideration and its designation of the Southern Steelhead as a candidate species, or alternatively to vacate its approval of the limited 2084 Exception, and (3) attorney’s fees and costs.

The administrative record includes the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence and any other papers in the case. CCP §1094.6(c); Govt. Code §11523.

“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. The court can only admit additional evidence where the party seeking its inclusion shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Western States Petroleum Assn. v. Superior Court, (1995) 9 Cal.4th 559, 578 (“Western States”); Eureka Citizens for Responsible Govt. v. City of Eureka, (2007) 147 Cal.App.4th 357, 366. In addition, extra-record evidence is admissible only if it is relevant. Western States, supra, 9 Cal.4^th at 570.

The Code of Civil Procedure (“CCP”) does not expressly provide for a motion to augment or correct the administrative record, but such motions are routinely made. See e.g., Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 101.

On July 2, 2021, the Commission’s Executive Director issued a notice that the Commission had received the CalTrout petition and forwarded the CalTrout petition to DFW for review pursuant to F&G Code section 2073.5. Francis Decl., ¶2, Ex. A. The Commission expected to receive DFW’s evaluation and recommendation at its October 13-14, 2021 meeting. Francis Decl., ¶2, Ex. A. Interested parties could contact Jonathan Nelson (“Nelson”), a DFW Environmental Program Manager, to submit information relating to the petitioned species. Francis Decl., ¶2, Ex. A.

On August 2, 2021, United’s Environmental Scientist Randall McInvale (“McInvale”) emailed Nelson to ask what the deadline was for United to submit relevant information for the petition evaluation. Francis Decl., ¶3, Ex. B; McInvale Decl., ¶4, Ex. B. McInvale also asked whether United should list the Commission as a co-addressee for that information. McInvale Decl., ¶4, Ex. B.

Nelson replied that United should submit information by August 20, 2021. McInvale Decl., ¶4, Ex. B. Nelson provided contact information for DFW and said that DFW “will provide copies of whatever it receives from you to the Commission if you have not already provided that information to the Commission.” McInvale Decl., ¶4, Ex. B.

On August 17, 2021, United submitted a letter with 28 attachments to DFW at the email address Nelson had provided. McInvale Decl., ¶5, Ex. C. The letter applied the cited evidence to the 12 factors all CESA listing petitions must address. McInvale Decl., ¶5, Ex. C. The email included a One Drive link with the attachments. McInvale Decl., ¶5, Ex. C.

When DFW released its report on October 29, 2021, it claimed that it had reviewed both the August 17 letter and the attachments as part of its evaluation. Francis Decl., ¶6, Ex. D, p. 7. Although only the August 17 letter was in the report’s appendix, DFW stated that all the information it reviewed was available upon email request. Francis Decl., ¶6, Ex. D, pp. 7.

On July 18, 2022, United filed this action and requested that the Commission prepare an administrative record. Francis Decl., ¶7, Ex. E. On November 8, 2022, the Commission sent United a proposed draft administrative record index that did not include the 28 attachments. Francis Decl., ¶8, Ex. F. On December 6, 2022, United included the attachments in a list of items that it asked the Commission to confirm would be in the record. Francis Decl., ¶9, Ex. G. It also asked in general whether the record would include items that were part of DFW’s evaluation. Francis Decl., ¶9, Ex. G.

On December 23, 2022, the Commission replied that while the record included the August 17 letter, it would not include the attachments because neither United nor DFW submitted these documents to the Commission. Francis Decl., ¶10, Ex. H. The Commission admitted that DFW used them in its evaluation and that DFW’s report made them available upon request. Francis Decl., ¶10, Ex. H.

On December 29, 2022 United replied that DFW management provided instructions and assurances on which United relied in good faith. Francis Decl., ¶11, Ex. I. Nelson had informed United via email that it should submit any documents related to the CalTrout petition to DFW, which would provide to the Commission copies of all documents received from United. Francis Decl., ¶11, Ex. I. The Commission could not direct the public to contact a specific DFW representative who assures the public that DFW will provide all documents to the Commission, only for the Commission to claim it is a separate entity from the DFW. Francis Decl., ¶11, Ex. I.

On August 5, 2021, the Commission’s counsel replied that the parties appeared to be at an impasse and that United could choose to file a noticed motion to compel the Commission to augment the record. Francis Decl., ¶12, Ex. J.

The CalTrout petition was an agenda item for four Commission meetings from August 2021 to April 2022. Bacon Decl., ¶3, Exs. 1-4. For all four meetings, the posted agenda encouraged the public to submit written comments by email, mail, or delivery to the Commission itself. Bacon Decl., ¶3, Exs. 1-4.

United submitted 610 pages to the Commission, which is almost one-third of the 1,860-page record. Bacon Decl., ¶4. Among these documents was a December 2, 2021 letter which alleged that the Commission’s decision did not discuss any of the timely submitted comment letters. Bacon Decl., ¶4, Ex. 5. The December 2 letter attached United’s August 17, 2021 letter. Bacon Decl., ¶4, Ex. 5. Although the August 17 letter purported to include the 28 attachments, it did not do so. Bacon Decl., ¶4, Ex. 5.

On February 15, 2023, the Commission’s counsel emailed United’s counsel a link to download the opposition to this motion. Francis Decl., ¶3, Ex. A.

Petitioner United seeks to augment the administrative record with 28 attachments that it contends were or should have been in the Commission’s possession and part of its review under CESA (F&G Code[2] §2050 et seq.). Mot. at 5, 8-10.

The Commission is a constitutionally created agency. Cal. Const., art. IV, §20. CESA’s purpose is ‘to conserve, protect, restore, and enhance any endangered species or threatened species and habitat.” §2052. CESA prohibits the sale, import, export, and take of listed threatened and endangered species, and of candidates for listing. See §§ 2051, 2080, 2085.

Pursuant to these goals, the Commission shall create lists of endangered and threatened species and shall add or remove species from the lists if it finds, upon receipt of sufficient scientific information, that the action is warranted. §2070. Any interested party can submit a petition to list a species under CESA. §2017.

The Commission has a two-step process for listing a species as endangered or threatened. See Natural Resources Defense Council v. Fish & Game Commission, (1994) 28 Cal.App.4^th 1104, 1114.

At the first stage, upon receipt of a listing petition, the Commission shall forward it to DFW for an evaluation report assessing whether the petition provides sufficient scientific information for each of the 12 required informational data sets to indicate that listing may be warranted. §§ 2072.3, 2073, 2073.5. A person may submit information to DFW relating to the petitioned species during DFW’s evaluation. §2073.4(a). DFW’s evaluation report shall include copies of, or a list of, all information submitted to DFW during its evaluation. §2073.5(c). If copies are not included, the report shall state where the listed information is available for review. §2073.5(c).

The Commission shall hold a noticed public hearing to determine whether to accept the petition for consideration. §2074.2(e). The Commission shall consider the petition, DFW’s report, written comments, and oral testimony during the hearing. §2074.2. The Commission shall find either that the petition provides sufficient information to indicate that the petitioned action may be warranted or that it does not. §2074.2(a). If the petition fails to include sufficient scientific information in each of the 12 data sets in F&G Code section 2072.3, the Commission must reject the petition. 14 CCR §670.1(b), (e)(1).

If the Commission finds that the petition provides sufficient information to indicate that the petitioned action may be warranted, it shall publish a notice of finding that the petition is accepted for consideration. §2074.2(a)(2). The Commission’s decision that a species may be warranted for listing means simply “may be justified” – “something more than a fair argument and something less than ‘more likely than not.’” Central Coast Forest Assn. v. Fish & Game Commission, (2018) 18 Cal.App.5^th 1191, 1204.

If the Commission approves the listing petition for consideration, the subject species becomes a candidate species and is immediately granted CESA protections during the 12-month candidacy period. §§ 2080, 2085. The Commission can craft exceptions to this broad protection, such as by authorizing the taking of any candidate species subject to terms and conditions it prescribes that are based on the best available scientific information. §2084.

At the second stage, after the Commission approves the listing petition for consideration, DFW has 12 months to prepare a comprehensive review of the biological status of the species and issue an evaluation report and recommendation to the Commission. §2074.6. The review must be based on the best scientific information available to DFW. Id.

The Commission must then hold a second noticed public hearing for a final consideration of the listing petition. §§2075, 2075.5. The species becomes a listed endangered or threatened species once the Commission concludes that the petitioned actioned is warranted and publishes a notice of that finding and of proposed rulemaking. §2075.5(2).

The Commission’s decision at both stages is reviewable under CCP section 1094.5. §2076.

The pertinent facts for the motion to augment are as follows. On July 2, 2021, the Commission issued a Notice of Receipt of Petition related to the CalTrout Petition. The Notice indicated that interested parties could contact Nelson to submit information to DFW relating to the petitioned species.

On August 2, 2021, United asked Nelson about the deadline for submitting information, and how to do so. Nelson responded that the deadline was August 20, 2021, provided with contact information for DFW, and said that DFW “will provide copies of whatever it receives from you to the Commission if you have not already provided that information to the Commission.”

From August 6, 2021 through April 21, 2022, the Commission had four meetings and the agenda item for each encouraged the public to submit written comments by email, mail, or delivery to the Commission itself. From December 2, 2021 through April 7, 2022, United submitted 610 pages to the Commission, almost a third of the total 1860 page administrative record. The record includes United’s December 2, 2021 letter which attaches its previous August 17, 2021 letter. Although the December 2 letter also purports to include the August 17 letter’s 28 attachments at issue in this motion, it did not do so.

The Commission is correct that United relies on inapplicable statutes. Opp. at 13-14. CCP section 1094.6(c) concerns the administrative record for administrative mandamus for local agencies and does not apply to the Commission (though it may do so by analogy). See Mot. at 7. Govt. Code section 11523 does provide that the contents of the administrative record will include “the written evidence and any other papers in the case”, but it begs the question whether the 28 attachments are evidence or papers for the Commission’s first stage case, and it also defers to the statutes governing the particular agency. Case law from CEQA does not control because CEQA has an express administrative record statute that has extensive requirements. Pub. Res. Code 21167.6(e).

As for CESA, the Commission notes that it is a separate agency from DFW and argues that nothing in the statutory scheme requires its administrative record to include materials submitted to DFW. CESA expressly states that DFW may forego submitting to the Commission hard copies of the information it receives. Instead, it may state where the information it receives “is available for review”. §2073.5(c). The Commission is required to consider the petition, DFW’s written report, and comments received and oral testimony at the first stage hearing. §2074.2(a). Once the hearing is closed, the administrative record is also, and no person shall submit further information to the Commission for the petition. §2074.2(b). Opp. at 11-12.

From these statutes, the Commission argues that nothing in CESA requires it to include documents only submitted to DFW. The pertinent provisions only allow submission of information to DFW for its evaluation report. §2073.3, 2073.4(a). There is good reason that CESA does not require the record for a first stage proceeding to be laden down with lengthy scientific reports like the 28 attachments that United seeks to add. The first stage is a low bar that listing of a species “may be warranted” and it is not until the second stage that the public has the opportunity to submit critiques and rebuttals in the form of detailed scientific reports. See 14 CCR §670.1(h)(1). United may submit the 28 attachments for the second stage of the CESA process. Opp. at 12.

The problem with the Commission’s argument is that the statutory scheme requires the Commission to have all information that is submitted to DFW. A person may submit information to DFW for its evaluation (§2073.4(a)), and DFW’s evaluation report shall include copies of, or a list of, all information submitted to it (§2073.5(d)). If hard copies are not included, DFW’s report may state where the listed information is available for review. Id. DFW must submit its report to the Commission (§2073.5(a)) and the Commission must consider it (§2074.2(a)). Thus, the statutory scheme requires that any information submitted to DFW for a petition must be provided to the Commission for its first stage decision.

United followed this procedure by relying on the Commission’s Notice and expressly asking Nelson how documents should be submitted to the Commission as co-addressee. It submitted the 28 attachments to DFW with the understanding that they would be included in DFW’s report to the Commission, either by hard copy or listing. There is no distinction for record purposes whether the Commission possessed a hard copy or only had access to United’s attachments by listing. CEQA case law is not alone in concluded that a document is readily available to an agency if it has been provided a specific webpage that can be accessed easily. See Consolidated Irrigation District v. Superior Court, (2012) 205 Cal.App.4^th 697, 724-25.

The Commission’s argument that the 28 attachments are more significant to the second stage of Commission review than the first is a practical argument not expressly supported by CESA. United argues that the attachments directly concern the 12 factors the Commission is required to consider at the first stage. Reply at 2. Even at the first stage, the Commission must evaluate whether the petition includes scientific information sufficient to demonstrate that a particular species’ listing may be warranted and must reject the petition if it does not include such information for the 12 data sets. Reply at 6. The attachments address the 12 scientific sets in F&G Code section 2072.3 and are directly relevant at the first stage. Id. The court is not in a position to decide the relevance of these documents at this point and will accept United’s point.

The Commission notes that United was able to submit 610 pages of material directly to it and United is merely trying to rectify its failure to include the attachments with the December 2, 2021 letter that was submitted. Opp. at 14-15. United disagrees, stating that it followed the Commission’s four agenda instructions to submit comments to the Commission at an email address (Bacon Decl., Exs. 1-4) whereas section 2073.4 instructs parties to submit information on the 12 factors to DFW which, in turn, will provide that information to the Commission. That is what United did. Reply at 5.[3]

The motion to augment the administrative record with the 28 attachments is granted.

[1] United failed to lodge a courtesy copy of its reply in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies in all future filings.

[2] All further statutory references are to the F&G Code unless otherwise stated.

[3] United asks for a remand if the 28 attachments are not included in the record. Mot. at 9-10. The Commission correctly responds that contention may not be made in a motion to augment. Opp. at 16. The Commission also argues that United has not pled this theory and that it did not exhaust the issue before the Commission. Opp. at 17. As the motion is granted, the court need not address these arguments.

Proposed Intervenors CBD for Biological Diversity (“CBD”), Wishtoyo Foundation (“Wishtoyo”), and Ventura Coastkeeper (“Ventura”) (collectively, “Proposed Intervenors”) move to intervene in this action. Petitioner United Water Conservation District (“United”) opposes.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner United commenced this proceeding on July 18, 2022 against Respondent Commission alleging traditional and administrative mandamus. The Petition alleges in pertinent part as follows.

If the Commission approves the listing petition for consideration, the subject species becomes a candidate species and is immediately granted CESA protections during the 12-month candidacy period. The Commission can craft exceptions to this broad protection (“2084 Exceptions”), such as by authorizing the taking of any candidate species subject to terms and conditions it prescribes that are based on the best available scientific information.

Mandatory intervention is required if the application is timely and the person seeking intervention either has a statutory right to intervene or (a) claims an interest relating to the property or transaction that is the subject of the action and (b) is so situated that the disposition of the action may impair or impede the person’s ability to protect that interest, unless (c) that person’s interest is adequately represented by existing parties. CCP §387(d)(1).

Permissive intervention is available upon timely motion to any non-party who has an interest in the matter in litigation, or an interest in the success of either party, or against both parties. CCP §387(d)(2). This section is construed liberally in favor of intervention. Simpson Redwood Co. v. State of California, (“Simpson Redwood”) (1987) 196 Cal. App. 3d 1192, 1200. The court has discretion to permit intervention when a party has a direct, not consequential, interest in the matter in litigation. Id. at 1200; Kobernick v. Shaw, (1977) 70 Cal. App. 3d 914, 918. In addition to a direct interest, intervention must not enlarge the issues raised by original parties and not tread on the rights of the original parties to conduct their own lawsuit. See Kuperstein v. Superior Court, (1988) 204 Cal.App.3d 598, 600. The reasons for intervention must outweigh any opposition. Truck Insurance Exchange v. Superior Court, (1997) 60 Cal.App.4th 342, 346.

If intervention is granted, the intervenor shall separately file a complaint-in-intervention, answer-in-intervention, or both and serve all parties. CCP §387(e).

CBD’s mission is to ensure the preservation, protection, and restoration of biodiversity, native species, ecosystems, public lands and water, and public health through science, policy, and environmental law. Cummings Decl., ¶3. Defending the protection of the Steelhead under CESA is a part of this mission. Cummings Decl., ¶3. CBD has advocated for protection of Southern California watersheds and their species, including the Steelhead. Cummings Decl., ¶4. This includes advocacy and litigation regarding the management of public lands in the region, including projects on both public and private lands that would threaten southern California rivers and their species and habitats. Cummings Decl., ¶4.

Wishtoyo is a non-profit public benefit corporation that protects and preserves Native American cultures, like the Chumash, and the natural resources they depend upon. Zimmerman Decl., ¶¶ 3-4. Ventura is a program of Wishtoyo, and its mission is to protect, preserve, and restore the ecological integrity and water quality of Ventura County’s inland waterbodies, coastal waters, and watersheds and the species therein. Zimmerman Decl., ¶5.

The Santa Clara River and its species are critical to the Chumash way of life. Zimmerman Decl., ¶5. The Steelhead is a part of several cultural and ceremonial practices such as traditional song, dance, storytelling, and continuance of oral history associated with the species. Zimmerman Decl., ¶8. Wishtoyo members also enjoy observing, studying, preserving, and researching them. Zimmerman Decl., ¶9. Harm to the species has a direct effect on Wishtoyo and its members. Zimmerman Decl., ¶10.

For years, Wishtoyo and Ventura have worked to protect Steelhead and its habitats like the Santa Clara River. Zimmerman Decl., ¶6. They presented comments on February 17, 2022 to the Commission in favor of listing the species on the endangered list under CESA. Zimmerman Decl., ¶6(h).

In 2002, CBD was involved in a series of lawsuits that designated and expanded the critical habitat for the Steelhead. Cummings Decl., ¶5. In the early 2000s, CBD engaged in various lawsuits to protect public forest land that includes the Steelhead habitats. Cummings Decl., ¶6.

Much of CBD’s advocacy for the Steelhead in Southern California has focused on the Santa Clara River, where United’s operations affect the population. Cummings Decl., ¶7. In 2013, the Proposed Intervenors filed a complaint with the State Water Resources Control Board alleging public trust doctrine and F&G Code violations related to United’s operation of the Vern Freeman Diversion Dam. Cummings Decl., ¶7; Zimmerman Decl., ¶7. To date, the Water Board has not acted on the complaint. Cummings Decl., ¶7; Zimmerman Decl., ¶7.

In 2016, Proposed Intervenors filed a federal lawsuit claiming that United’s operation of the Vern Freeman Dam caused unlawful taking of the Steelhead under the federal Endangered Species Act (“ESA”). Cummings Decl., ¶8; Zimmerman Decl., ¶11. In a 2018 order, the court agreed and granted an injunction requiring United to limit water diversions between January 1 and May 31 and design, select, and obtain permitting for new fish passage infrastructure. Cummings Decl., ¶8; Zimmerman Decl., ¶11. United has delayed compliance with this order, and the Van Freeman Dam continues to operate and take Steelhead. Cummings Decl., ¶9; Zimmerman Decl., ¶12.

In 2022, Proposed Intervenors and another party filed suit alleging public trust doctrine and F&G Code violations related to United’s operation of the Van Freeman Dam. Cummings Decl., ¶10; Zimmerman Decl., ¶13. United removed the case to federal court, which denied a motion to remand. Cummings Decl., ¶10: Zimmerman Decl., ¶13.

A ruling in United’s favor in this case would harm the species and disrupt the research that DFW is now conducting to consider whether to permanently protect it as endangered. Cummings Decl., ¶13.

United’s Petition claims that it cannot comply with both the 2018 order and the F&G Code section 2084 Exception the Commission has provided. Cummings Decl., ¶14. A court decision agreeing with United would impact the Proposed Intervenor’s rights under the 2018 order and undercut the years it invested in protection of Steelhead at the Van Freeman Dam. Cummings Decl., ¶14; Zimmerman Decl., ¶16.

Proposed Intervenors have expertise on the species and the threats it faces, which would aid the court as it assesses this case. Cummings Decl., ¶15; Zimmerman Decl., ¶15.

This case will also affect CBD’s broader conservation interests in CESA, as it is involved in many of the Commission’s listing petitions and monitors the rest. Cummings Decl., ¶16. CBD’s litigation is also responsible for much of the CESA case law. Cummings Decl., ¶17. This includes when a Commission must accept a listing petition and what violates CESA’s “take” prohibition. Cummings Decl., ¶17.

CBD’s member support derives from trust that CBD will represent its members’ interests for imperiled species such as the Steelhead. Cummings Decl., ¶18. Many CBD and Wishtoyo members claim that they derive recreational and aesthetic value from the Steelhead. Cummings Decl., ¶18; Zimmerman Decl., ¶17. If the holding of this case upends the continued protection of the Steelhead, it will harm the interests of both the Proposed Intervenors and their members. Cummings Decl., ¶18; Zimmerman Decl., ¶17.

Proposed Intervenors has submitted their proposed Answer-in-Intervention (“Proposed Answer”) with the motion to intervene.

On November 21, 2022, the Proposed Intervenors filed a state court complaint alleging that United’s activities at the Van Freeman Dam violated the public trust doctrine, Cal. Const. Art. X section 2, and various provisions of the F&G Code. RJN Ex. A.

On November 29, 2022, United removed the matter to federal court. RJN Ex. B, p. 5. On January 5, 2023, the federal court (Hon. David Carter) denied Proposed Intervenors’ motion to remand the case to state court. RJN Ex. B, pp. 1-2. Proposed Intervenors asserted that the factual relationship between the environmental harm and injunctive remedy at issue in the 2018 order and in the new case was not a basis for federal question jurisdiction. RJN Ex. B, p. 9. The district court disagreed, finding that any relief that Proposed Intervenors obtained as to the Van Freeman Dam would implicate the terms of the 2018 order’s injunction. RJN Ex. B, pp. 10-11. The federal court also would continue to consider the implications of state law and local regulatory processes in its enforcement of that injunction. RJN Ex. B, p. 11.

On February 14, 2023, Proposed Intervenors moved the district court to replace Hon. James Smith as the special master in charge of ensuring compliance with the 2018 order. RJN Ex. C, p. 8. The motion alleged that United was still not in compliance with the injunction and that Smith’s evaluation of the facts and advice to the court has nearly always favored United’s views concerning disputed matters. RJN Ex. C, pp. 8-9.

Proposed Intervenors seek leave for mandatory intervention or, in the alternative, permissive intervention. Mot. at 9, 17-18.

There is no statutory time limit for filing a motion to intervene. Noya v. A.W. Coulter Trucking, (2006) 143 Cal.App.4th 838, 842. Rather, it is the general rule that a right to intervene should be asserted within a reasonable time and that the intervener must not be guilty of an unreasonable delay after knowledge of the suit. Allen v. California Water & Tel. Co., (1947) 31 Cal.2d 104, 108. Intervention is timely unless any party opposing intervention can show prejudice from any delay attributable to the filing of a motion to intervene. Truck Ins. Exchange v. Superior Court, (1997) 60 Cal.App.4th 342, 351 (motion to intervene filed in lawsuit pending for four years was timely because real parties had shown no prejudice other than being required to prove their case.)

The Petition was filed on July 18, 2022. No Answer from the Commission is on file. The hearing on this motion will take place on the same date as a trial setting conference. Intervention at this stage would not result in prejudice. The motion is timely.

a. Interest in the Property or Transaction That Is the Subject of the Litigation

For mandatory intervention, Proposed Intervenors must have an interest relating to the property or transaction that is the subject of the action. CCP §387(d)(1). Proposed Intervenors argue that conservation organizations can show the required interest in a transaction by showing that (a) the plaintiff’s claims implicate the organizations’ legal rights, (2) the organizations have a history of support for protection of the measure at issue, (3) the measure at issue protects their members’ interests, and (4) the agency decision implicates their missions or reputations. Proposed Intervenors contend that they meet all four requirements. Mot. at 11.[3]

The Petition alleged that the Commission’s 2084 Exception could threaten United’s efforts to comply with the 2018 order. Pet., ¶¶ 1, 47, n. 3, Ex. 1. Proposed Intervenors were the plaintiffs in the federal lawsuit that led to the 2018 order. Cummings Decl., ¶8; Zimmerman Decl., ¶11. They assert that the Petition has put the interpretation of the 2018 order at issue and they are entitled to protect that interest. See Idaho Farm Bureau Fed'n v. Babbitt (“Idaho Farm”) (9th Cir. 1995) 58 F.3d 1392, 1397–98 (public interest group is entitled to mandatory intervention in action challenging the legality of a measure it has supported). Mot. at 12.

United demonstrates that the legality of the 2018 order is not at issue. Apparently, United is satisfied with the 2018 order and only challenges the Commission’s failure to grant a 2084 Exception that would allow it to take candidate species for projects legally mandated to proceed. Proposed Intervenors are the parties who are unhappy with the 2018 order, and they seek to intervene in an attempt to attack the 2018 order. Opp. at 8-9. It seems plain that the outcome of this case will not affect the terms or impacts of the district court’s 2018 order and injunction.

Proposed Intervenors cite federal case law that conservation groups have a significant protectible interest justifying intervention when they assert some interest that is protectable by law and there is a relationship between the legally protected interest and the claims at issue. United States v. City of Los Angeles, (“Los Angeles”) (9^th Cir. 2002) 288 F.3d 391, 398; Wilderness Soc. v. U.S. Forest Serv. (“Wilderness”) (9th Cir. 2011) 630 F.3d 1173, 1180. The Proposed Intervenors have a longstanding interest in protecting the Steelhead at the Van Freeman Dam. This interest is protected by the 2018 order, the federal ESA, and the CalTrout petition brought under CESA that is at issue in this Petition. Therefore, Proposed Intervenors have a protectible interest. Mot. at 11; Reply at 8.

As Proposed Intervenors’ motion notes, this rather vague statement by the 9^th Circuit is not a bright line rule, and courts are directed to make a practical inquiry by involving as many apparently concerned persons as is compatible with efficiency and due process. Los Angeles, supra, 288 F.3d at 398. The court agrees that Proposed Intervenors have an interest in this case, but that interest is not direct.

Proposed Intervenors have been involved in efforts to list the Steelhead as an endangered species, to designate its critical habitat, and to generally protect it through advocacy. Mot. at 12; Cummings Decl., ¶¶ 5, 7-8; Zimmerman Decl., ¶¶ 6-7, 11. They cite Am. Farm Bureau Fedn v. United States EPA (“Am. Farm”) (M.D.Pa. 2011) 278 F.R.D. 98, 106, and Cal. Dump Truck Owners Ass’n v. Nichols (“Dump Truck Owners”) (E.D.Cal. 2011) 275 F.R.D. 303, 305-06 to assert that they are entitled to intervene in challenges to agency decisions that they supported. Mot. at 12-13.

United argues that Proposed Intervenors’ general interest in protecting the Steelhead or their public comments during the Commission’s decision-making process are an insufficient interest for intervention. United notes (Opp. at 10-11) that both cases cited by Proposed Intervenors involve situations in which the applicant actively participated in the administrative process. Opp. at 10. In Dump Truck Owners, supra, 275 F.R.D. at 305-06, the applicant spent over two years attending meetings with the agency staff, helping to draft the regulation, participating in public workshops on the regulation, testifying before the agency during hearings, and providing written comments on the agency’s proposed decision. In Am. Farm, supra, 278 F.R.D. at 106, the proposed intervenor was an active participant on the technical committee that oversaw the development of the agency decision. Although Wishtoyo and Ventura claim to have submitted comments to the Commission in favor of listing the species on the endangered list under CESA (Reply at 6; Zimmerman Decl., ¶6(h)), they did not do so in connection with the Commission’s first stage decision on the CalTrout petition. Opp. at 10.

Proposed Intervenors’ interest is in the survival of a common resource, a species of fish. That general interest is not by itself sufficient. That one Proposed Intervenor represents the interests of a tribe that places cultural significance on that species (Zimmerman Decl., ¶¶ 5, 7) does not make that interest different than anyone else who wants to protect the Steelhead as endangered.

In reply, Proposed Intervenors cite W. Watersheds Project v. Haaland (“Watersheds”) (9th Cir. 2022) 22 F.4th 828, 842, where an oil producer was allowed to intervene despite its failure to participate in administrative proceedings or trial court litigation. Reply at 6.

Unlike Proposed Intervenors, the intervenor in Watersheds had a property interest that was imperiled by the litigation. Id. at 842. The court also found that the existing party, which represented the general interests of over 300 oil producers like the proposed intervenor, may have different interests than the proposed intervenor. Id. at 842.

Proposed Intervenors also argue that United’s position suffers from a logical fallacy. That the cases they cited granted intervention because the party participated in the administrative proceedings does not mean that a party which did not so participate does not have a sufficient interest. Reply at 5. This is true, but the fact that Proposed Intervenors did not participate in the Commission’s first stage determination does not support their interest in this administrative mandate case.

Proposed Intervenors claim to have a broader interest in the proper application of CESA than other interested persons because CBD has been involved in the petitions for 12 of the 24 species recently acted upon by the Commission. Cummings Decl., ¶16. Mot. at 13. This general interest in CESA shows that Proposed Intervenors have an interest in this case, but not a direct one.

Proposed Intervenors point out that many CBD and Wishtoyo members derive recreational and aesthetic value from the Steelhead. Cummings Decl., ¶18; Zimmerman Decl., ¶17. They are invested in the continued existence of the Steelhead and its habitat, including the Santa Clara River. Proposed Intervenors assert that this constitutes a protectible interest for mandatory intervention, citing People ex rel. Rominger v. County of Trinity, (“Rominger”) (1983) 147 Cal.App.3d 655, 662-63. Mot. at 14.

Rominger held that a general political interest in upholding a statute is not sufficient to intervene in a challenge to it. 147 Cal.App.3d at 662. A specific interest that would be directly affected in a substantial way by the outcome of the litigation is required for intervention. Id. The fact that the Sierra Club and its members actively supported the ordinance in question and have a general interest in the enforcement of environmental laws alone will not justify intervention. Id. By alleging that its members would be expressly harmed by the spraying of herbicide in the absence of the ordinances, the Sierra Club did allege specific harm and it had a direct and immediate, rather than consequential and remote, interest in the litigation. Id. at 663.

Proposed Intervenors cannot say the same. CESA concerns the protection of species and Proposed Intervenors cannot say that it was specifically designed to protect their members.

United also argues that intervention should be denied when review is confined solely to the reasons cited in the administrative record and the intervening party seeks the opportunity to offer extraneous evidence beyond the administrative record. Alameda Water & Sanitation Dist. v. Browner, (10th Cir. 1993) 9 F.3d 88, 90-91. United asserts that the recreational and aesthetic value that Proposed Intervenors’ members derive from the Steelhead is either part of the record already or beyond the scope of United’s Petition. Opp. at 11.

Proposed Intervenors’ recreational, aesthetic, and conservation interests do not give them a direct interest in this lawsuit.

Proposed Intervenors argue that their members’ support derives from trust that the entities will represent their interests in imperiled species such as the Steelhead. Cummings Decl., ¶18. Many CBD and Wishtoyo members claim that they derive recreational and aesthetic value from the Steelhead. Cummings Decl., ¶18; Zimmerman Decl., ¶17. The effectiveness of the organizations depends on whether members perceive them as capable of achieving lasting protections for species under threat. That reputation suffers if Proposed Intervenors cannot participate in this action. This will, in turn, compromise their effectiveness in other litigation. Mot. at 15.

Proposed Intervenors cite Simpson Redwood, supra, 196 Cal.App.3d at 1201, which recognized that an organization could suffer a loss in reputation that might translate into loss of future support and contributions if it could not intervene. Mot. at 15. The case emphasized, however, that this argument supplemented the argument that the proposed intervenor contributed to the creation of the park at issue. Id. at 1201. There is no suggestion that a reputational interest can stand alone.

Proposed Intervenors do not have a direct interest in upholding the Commission’s decision to take the CalTrout Petition under consideration or pass the 2084 Exception. As Proposed Intervenors point out, however, a direct interest may not be required for a conservation organization. Mot. at 11. The court will assume that Proposed Intervenors have satisfied the requirement of an interest in the transaction.

b. Whether the Disposition of the Matter will Affect Proposed Intervenors’ Interests

Proposed Intervenors assert that United’s arguments will affect the interpretation of the 2018 order and their rights thereunder. Mot. at 15-16. United argues that their interests in the 2018 order will not be impacted because United does not dispute the 2018 order’s directions. Opp. at 11.

In reply, Proposed Intervenors argue that they have a longstanding interest in protecting the Steelhead and that interest is protected by the 2018 order, the federal ESA, and CESA. United will ask the court to find that the Commission’s decision not to issue a 2084 Exception is invalid because it would hamper the operation of legally mandated projects such as the Van Freeman Dam. To the extent that United and the Commission dispute whether CESA protections will hamper United’s mandates in the 2018 order, Proposed Intervenors have the right to present their views. Reply at 9.

While not clear, the disposition of this case may affect Proposed Intervenors’ interests in the 2018 order.

c. Whether Proposed Intervenors’ Interests Are Adequately Protected by Existing Parties

The dispute is between United and the Commission. United and Proposed Intervenors dispute the standard used to determine whether the Commission adequately represents Proposed Intervenors’ interests. Both sides rely heavily on federal case law.

United asserts that a government agency is presumed to be able to defend the challenged regulation or agency action favored by the intervenor. British Airways Bd. v. Port Auth. of New York & New Jersey (S.D.N.Y. 1976) 71 F.R.D. 583, 585. In Citizens for Balanced Use v. Montana Wilderness Ass’n (“Citizens”) (9th Cir. 2011) 647 F.3d 893, 899, the court rejected the argument that defendant United States Forest Service and the proposed intervenors had identical objectives. The court found that the proposed intervenors made a “compelling showing” of inadequate representation (id.), and United asserts that is what is required here. Opp. at 12.

United also cites Habitat Educ. CBD, Inc. v. Bosworth (“Habitat”) (E.D. Wis. 2004) 221 F.R.D. 488, 495, which United claims denied intervention because the agency and proposed intervenors had the same objective – to uphold the agency decision to protect the forest. Opp. at 12.

The Habitat court found that the parties had the same narrow objective, the same broad objective, and at most a different motivation that was insufficient to justify intervention. 221 F.R.D. at 495. This suggests that the burden for demonstrating that the agency adequately represents the same interests is relatively high.

Proposed Intervenors cite Forest Conservation Council v. U.S. Forest Service, (“Forest”) (9th Cir. 1995) 66 F.3d 1489, 1499, which acknowledged a presumption of adequacy but held that an intervenor may still intervene when it protects more narrow, parochial interests than the agency. Mot. at 16. This holding closely aligns with that in Lewis v. County of Sacramento (“Lewis”) (1990) 218 Cal.App.3d 214, 219 that the burden of proof for showing that the existing representation of the proposed intervenor’s interests is inadequate should be minimal. Mot. at 16. Proposed Intervenors add that the high court in Berger v. North Carolina State Conference of the NAACP, (2022) 142 S.Ct. 2919, 2024, noted that courts have adopted varying approaches to analyzing the presumption of adequate representation, which should apply only when the interests fully overlap. Reply at 10.

Proposed Intervenors note that the Commission is charged with balancing the public’s various interests whereas their interests are singular: protect the Steelhead. The Commission could resolve the case by stipulating to a compromise on the status of the CalTrout Petition and the 2084 Exception. In doing so, it will consider the policy reasons it thinks are relevant to CESA and how a decision will affect the general public. As organizations focused on wildlife protection, Proposed Intervenors are concerned with the interests of the species at issue and with having all the petitions currently under submission approved. Mot. at 17.

The Commission’s interest are aligned with, but may not fully protect, Proposed Intervenors’ interests. However, there is a second motion to intervene filed by CalTrout set for hearing on March 9, 2023. Both United and the Commission stipulated to intervention by CalTrout. It may well be that CalTrout’s interests and those of Proposed Intervenors are fully aligned.

Proposed Intervenors have shown that they do not have a direct interest in this lawsuit, but a direct interest may not be required for a conservation organization. Although not clear, they have shown that the disposition of this case may affect their interests. Finally, the Commission’s interest are aligned with, but may not fully protect, Proposed Intervenors’ interests. CalTrout’s motion to intervene is set for hearing on March 9, 2023, and it may well be that CalTrout’s interests are fully aligned with those of Proposed Intervenors such that mandatory intervention should be denied.

The court has discretion to permit intervention (1) when a party has a direct, not consequential, interest in the matter in litigation (2) intervention will not enlarge the issues under consideration, and (3) the reasons for intervention outweigh any prejudice to the existing parties. CCP §387(d)(2); Kuperstein v. Superior Court, supra, 204 Cal.App.3d at 600.

Proposed Intervenors claim the same interests that support the argument for mandatory intervention. Mot. at 18. United argues that Proposed Intervenors do not have a direct and immediate interest; they have a consequential interest insufficient to support intervention. Opp. at 13-14. The required interest for permissive intervention should be no greater than that for mandatory intervention. See Mot. at 11, n. 4. If a conservation entity’s interest satisfies mandatory intervention, it will satisfy permissive intervention.

Proposed Intervenors claim they will not enlarge the issues because they seek only to defend the Commission’s decision to list the Steelhead as a candidate species under CESA consistent with implementation of the 2018 order. Mot. at 18.

United disagrees, noting that the 2018 order is not at issue in this case. Proposed Intervenors have made it clear that they plan to offer their general expertise on the species and the threats facing it. Cummings Decl., ¶15; Zimmerman Decl., ¶15. The Petition’s claim is that the evidence provided at the time of the Commission’s hearing was insufficient to fulfill all 12 CESA requirements and thus could not be accepted. If the Proposed Intervenors wanted their expertise to be part of this decision, they should have submitted all such information for the Commission’s first stage determination; it is irrelevant now. Opp. at 14.

Finally, Proposed Intervenors contend that United would not suffer any prejudice by their intervention. They will not duplicate the Commission’s arguments, but rather will supplement them. Reply at 12. United contends that the reasons for intervention are outweighed by United’s opposition. There is no reason for the expertise of Proposed Intervenors in this administrative mandamus case, and their involvement would only add greater burden for the parties and court. If the court does permit intervention, Proposed Intervenors should be prohibited from raising new claims or issues and from recovering attorney’s fees. Opp. at 15.

United’s argument about scientific expertise is a bit disingenuous given its motion to augment with 28 scientific attachments. In any event, the court has no intention of allowing any intervenor to expand the scope of this lawsuit or seriously increase the court’s page burden. This issue cannot be resolved until CalTrout’s motion to intervene is addressed.

The motion to intervene is continued to March 9, 2023, when the court will address CalTrout’s motion to intervene. Proposed Intervenors are warned that United and the Commission stipulated to the intervention of CalTrout and the court will not permit a significantly expanded case from multiple intervenors.

[1] United failed to lodge a courtesy copy of its opposition brief, and Proposed Intervenors failed to lodge a courtesy copy of their reply brief, both in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Counsel is admonished to provide courtesy copies in all future filings.

[2] United requests judicial notice of (1) the verified complaint in Wishtoyo Foundation et al v. United Water Conservation District et al (“State Wishtoyo Case”), Case No. 22STCP04160, dated November 21, 2022 (RJN Ex. A); (2) an Order Denying Proposed Intervenors’ Ex Parte Application for Expedited Briefing, Proposed Intervenors’ Motion to Remand, and Proposed Intervenors’ Ex Parte Application for a Temporary Restraining Order, dated January 5, 2023, in Wishtoyo Foundation et al v. United Water Conservation District et al (“Federal Wishtoyo Case”), 2:22-cv-08675-DOC-PLA (RJN Ex. B); and (3) a memorandum in support of Proposed Intervenors’ Rule 53 Motion to Amend Order Appointing Judge Smith in the Federal Wishtoyo Case, dated January 13, 2023 (RJN Ex. C). The requests are granted. Evid. Code §452(d).

[3] Both sides cite numerous federal cases for this motion without providing the court with a copy pursuant to CRC 3.1113(i). Copies of foreign authorities are not mandatory with out a court order, the court orders the parties to comply with CRC 3.1113(i) in all future filings for this case.