Judge James C. Chalfant, Case 22STCP02661 2023-03-09 Tentative Ruling

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

Tentative decision on motion for leave to intervene: granted

Proposed Intervenor California Trout (“CalTrout”) moves to intervene in this action. The court has read and considered the moving papers (no opposition was filed),[1] and renders the following tentative decision.

Petitioner United Water Conservation District (“United”) commenced this proceeding on July 18, 2022 against Respondent California Fish and Game Commission (“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 the Department of Fish and Wildlife (“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 (“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.

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.

On February 28, the court granted United’s motion to augment the record with 28 attachments to an August 17, 2021 letter sent from United to the DFW and Commission.

On the same date, the court heard and continued a motion to intervene by Proposed Intervenors Center for Biological Diversity (“CBD”), Wishtoyo Foundation (“Wishtoyo”), and Ventura Coastkeeper (“Ventura”), warning Proposed Intervenors that it will not permit significant expansion of the issues or page limits by multiple intervenors.

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).

CalTrout is a non-profit public benefit organization. Jacobson Decl., ¶3. South Coast Regional Director Sandra Jacobson (“Jacobson”) oversees CalTrout’s work to remove fish passage barriers that block full expression of the anadromous life history of Steelhead, remove non-native aquatic species in high-priority steelhead recovery rivers, promote water conservation and water quality actions that improve watershed integrity, identify and implement actions that preserve native O. mykiss genetic resources, and cooperate with other organizations in the South Coast Steelhead Coalition to implement steelhead recovery projects that align with natural resource protection and coastal community resilience initiatives. Jacobson Decl., ¶¶ 1-2, 4. DFW’s Steelhead Restoration and Management Plan for California identified CalTrout as a leader in this cause. Jacobson Decl., ¶2.

CalTrout has a longstanding history of working to protect the Steelhead and restore its habitat. Jacobson Decl., ¶5. This includes the Southern California Steelhead Distinct Population Segment area from Santa Maria River in the north to the U.S. border with Mexico in the south. Jacobson Decl., ¶5. CalTrout’s primary geographic areas of project implementation are Ventura, Los Angeles, Orange, Riverside, and San Diego Counties. Jacobson Decl., ¶5.

Jacobson has also invested in Southern Steelhead education through tours, presentations, booths, media posts, interviews, media releases, student education, and outreach events. Jacobson Decl., ¶¶ 6-32.

CalTrout has a reputation of providing sound scientific research in supporting petitions, and it values that reputation. Jacobson Decl., ¶33. Jacobson headed a population genetics study of the O. mykiss from 2010 to 2014. Jacobson Decl., ¶33.

CalTrout has engaged in litigation as part of its advocacy work. Jacobson Decl., ¶34. In 2015, CalTrout agreed to a federally approved settlement of a federal Endangered Species Act (“ESA”) case brought against the U.S. Bureau of Reclamation to protect Steelhead in Hilton Creek. Jacobson Decl., ¶34.

CalTrout also asserted in federal court that United’s operation of the Vern Freeman Dam with its inadequate fish ladder and diversion structure violated ESA because it jeopardized Steelhead survival in the Santa Clara River. Jacobson Decl., ¶34. In 2018, CalTrout prevailed. Jacobson Decl., ¶34. The Ninth Circuit Court of Appeals upheld the decision in 2020. Jacobson Decl., ¶34.

The data shows that Steelhead are on the brink of extinction due to habitat loss, fragmentation, and degradation from urbanization. Jacobson Decl., ¶39. The species has not recovered after 25 years on the federal list of endangered species. Jacobson Decl., ¶42. There are only 177 documented adult Southern Steelhead in Southern California. Jacobson Decl., ¶42. CalTrout petitioned for state listing of the Steelhead as an endangered species under CESA because federal ESA protection has not been effective. Jacobson Decl., ¶4. CESA listing confers regulatory enforcement that can help better protect the species. Jacobson Decl., ¶4.

CalTrout’s CESA petition asks to protect Steelheads in all waterways below existing areas in the species’s historical range. Jacobson Decl., ¶43. State regulations of in-stream barriers and stream channel integrity will have meaningful impact on allowing these anadromous fish to survive and thrive. Jacobson Decl., ¶43.

The Commission’s unanimous decision on April 21, 2022 to consider CalTrout’s petition to list the Steelhead as endangered was an important milestone. Jacobson Decl., ¶40. Commission Director Samantha Murray (“Murray”) found the evidence that supported listing “very clear-cut.” Jacobson Decl., ¶41. That decision protects the Steelhead as a CESA candidate species during DFW’s year-long species status review. Jacobson Decl., ¶42.

United seeks to have the Commission set aside its determination that listing the Steelhead may be warranted. Jacobson Decl., ¶36. This would harm the species and CalTrout’s interests in both it and in CESA’s lawful implementation. Jacobson Decl., ¶36. Intervention would allow CalTrout to protect its interests. Jacobson Decl., ¶37.

CalTrout could better inform the court on relevant issues because of its expertise on the Steelhead and its involvement in the petition to list the Steelhead as endangered. Jacobson Decl., ¶37.

Many CalTrout members derive recreational and aesthetic value from Steelhead. Jacobson Decl., ¶38. Harm to the Steelhead impacts CalTrout and its members’ cultural, recreational, wildlife viewing, educational, research, and aesthetic uses of Steelhead in the Santa Clara River watershed and elsewhere. Jacobson Decl., ¶35.

CalTrout’s members and staff rely on CalTrout to represent their interests in the preservation of imperiled species and habitats. Jacobson Decl., ¶2. Its reputation as a staunch protector of those interests in turn garners its members’ support. Jacobson Decl., ¶¶ 2, 38. An adverse litigation result in this case could harm those members’ interests. Jacobson Decl., ¶38.

CalTrout seeks leave for mandatory intervention or, in the alternative, permissive intervention. Mot. at 3, 12. Unlike the Proposed Intervenors, CalTrout has not filed and served a proposed answer-in-intervention as required by CCP section 387(e). United and the Commission stipulated to CalTrout’s intervention, but the court denied the stipulated order in favor of hearing the motion.

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 and the administrative record has not been certified. Mot. at 4. 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, CalTrout must have an interest relating to the property or transaction that is the subject of the action. CCP §387(d)(1).

Active participants in the development of the agency decision have an interest in an action that challenges it. Am. Farm Bureau Fedn v. United States EPA, (“Am. Farm”) (M.D.Pa. 2011) 278 F.R.D. 98, 106. A public interest group is entitled as a matter of right to intervene in an action challenging the legality of a measure it has supported. Idaho Farm Bureau Fed’n v. Babbitt, (9th Cir. 1995), 58 F.3d 1392, 1397.

CalTrout has a longstanding history of working to protect the Steelhead and restore its habitat through advocacy, public outreach, and litigation. Jacobson Decl., ¶¶ 4-6, 34. This history includes providing sound scientific research in supporting petitions. Jacobson Decl., ¶33.

CalTrout petitioned for state listing of the Steelhead as an endangered species under CESA because federal ESA protection has not been effective. Jacobson Decl., ¶4. One Commission director found the evidence that CalTrout included to support listing “very clear-cut.” Jacobson Decl., ¶41. The Commission decision protects the Steelhead as a CESA candidate species during DFW’s year-long species status review. Jacobson Decl., ¶42. United seeks to have that decision set aside and CalTrout has a direct interest in the protection of its petition. Jacobson Decl., ¶36.

CalTrout also claims to have a broader interest in the proper application of CESA because that can affect conservation efforts for other species that CalTrout seeks to protect. Mot. at 6. This general interest in CESA shows that CalTrout has an interest in this case, but on its own this is not a direct interest.

CalTrout notes that many of its members derive recreational and aesthetic value from the Steelhead. Jacobson Decl., ¶38. They are invested in the continued existence of the Steelhead and its habitat, including the Santa Clara River. Mot. at 7. 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 7.

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.

CalTrout cannot say the same. Because CESA concerns the protection of animal species, CalTrout cannot say that it was specifically designed to protect its members. CalTrout’s recreational, aesthetic, and conservation interests do not give them a direct interest in this lawsuit.

CalTrout argues that its members’ support derives from CalTrout’s reputation as a staunch protector of its interests in the preservation of imperiled species and habitats. Jacobson Decl., ¶¶ 2, 38. That reputation allows CalTrout to connect with scientists, politicians, and the media to further its cause. CalTrout filed the CESA petition to list Steelheads as endangered to protect member interests. Jacobson Decl., ¶40. An adverse litigation result in this case could harm its credibility and its ability to garner support to protect its other interests. Mot. at 8.

CalTrout cites 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 7. 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.

Based on its petition and advocacy before the Commission, CalTrout has a direct interest in protecting the Commission’s decision to take its petition under consideration.

If a proposed intervenor claims an interest in the subject of an action, it must then show that the disposition of the action may impair or impede that person’s ability to protect that interest. CCP §387(d)(1)(2).

CalTrout introduced its petition as part of larger efforts to protect the Steelhead. Mot. at 9; Jacobson Decl., ¶¶ 2-4. The Commission’s decision to take the petition under consideration provides temporary protection. Jacobson Decl., ¶42. A decision in this action to set aside the decision because CalTrout’s petition as insufficient under CESA will remove that protection and harm the interests behind the petition. Mot. at 9; Jacobson Decl., ¶¶ 36-37. The disposition of this case may impair CalTrout’s interests.

c. Whether CalTrout’s Interests Are Adequately Protected by Existing Parties

An interest in the litigation does not entitle a party to intervention if that party’s interests are adequately represented by one or more of the existing parties. CCP §387(d)(1)(2).

The dispute is between United and the Commission. As United seeks to have the court find CalTrout’s petition insufficient for consideration, the question is whether the Commission will adequately represent CalTrout’s interests. Mot. at 10; Jacobson Decl., ¶36.

CalTrout asserts that per Lewis v. County of Sacramento, (1990) 218 Cal.App.3d 214, 219, the burden of proof for showing that the existing representation of the proposed intervenor’s interests is inadequate should be minimal. Mot. at 10. CalTrout also cites Forest Conservation Council v. U.S. Forest Service, (9th Cir. 1995) 66 F.3d 1489, 1499, which held that while there is a presumption of adequate representation when a governmental body is charged by law with representing the proposed intervenor’s interests, the intervenor may still intervene when it protects more narrow, parochial interests than the agency. Mot. at 10.

CalTrout assumes the Commission will defend its decision, but notes that the Commission is charged with balancing the public’s various interests and cannot adequately represent CalTrout’s specialized interest in protecting the Steelhead. Mot. at 10-11. The Commission may decide to settle the case on terms disagreeable to CalTrout to protect broader interests. Mot. at 11. The court agrees.

CalTrout cites its unique scientific knowledge relating to the Steelhead, its taxonomy, genetic makeup, and conservation needs. Mot. at 11; Jacobson Decl., ¶33. This expertise allows it to represent interests in Steelhead conservation and habitat preservation in ways that the Commission and DFW cannot. Mot. at 11.

This argument appears not to be relevant because the question is whether 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. Additional scientific argument based on extra-record evidence would not be permitted.

CalTrout also asserts that its personal involvement in the 2018 action against United provides it with extensive knowledge relevant to this lawsuit. Mot. at 11; Jacobson Decl., ¶34. This is not particularly significant because the legality of the 2018 order is not at issue.

Nevertheless, the Commission may not fully protect CalTrout’s interests, even if the Commission’s interest is aligned with them. CalTrout’s interests would appear to be fully protected by the interests of the Proposed Intervenors, and vice versa.

CalTrout has shown that it has a direct interest in this challenged petition, which the disposition of this case may affect. The Commission’s interests are aligned with, but may not fully protect, CalTrout’s interest. Proposed Intervenors’ interests would fully protect CalTrout, however.

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.

CalTrout cites to the same interests that support the argument for mandatory intervention. Mot. at 12; Jacobson Decl., ¶4. The required interest for permissive intervention should be no greater than that for mandatory intervention. If a conservation entity’s interest satisfies mandatory intervention, it will satisfy permissive intervention.

CalTrout asserts that it will not raise new legal or factual issues because the relevant facts are in the administrative record and are not in dispute. Mot. at 12. As the author of the petition, it introduced the facts that led to the petition’s consideration. Jacobson Decl., ¶¶ 4, 40-41. The court agrees that CalTrout may protect its interests through explanation of the evidence in the record so long as it does not enlarge the issues.

Finally, CalTrout contends that under In re Marriage of Kerr (1986) 185 Cal.App.3d 130, 134, an intervention prejudices the existing parties if it would delay the principal suit, require opening the case for further evidence, delay the trial of the action, or change the position of the original parties. Mot. at 12. The court agrees that none of these factors are present.

CalTrout has demonstrated that it generally meets the requirements of permissive intervention.

The motion to intervene tentatively is granted. However, the court will not permit CalTrout and the Proposed Intervenors to alter the scope of issues or significantly add to the page limits in this case. If intervention is granted, all intervenors will be required to work together and file a joint opposition or limited separate oppositions. The court will discuss this issue with counsel at hearing before finally ruling on CalTrout’s motion and Proposed Intervenors’ motion. No proposed answer-in-intervention is on file, and CalTrout is directed to file and serve one on all parties should intervention finally be granted. CCP §387(e).

[1] CalTrout failed to lodge a courtesy copy of its moving papers 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] CalTrout cites 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 without a court order, so the court orders CalTrout to comply with CRC 3.1113(i) in all future filings for this case, should the court grant this motion to intervene.