WILDLIFE ALIVE v. CHICKERING

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Court of Appeal, First District, Division 3, California.

WILDLIFE ALIVE, an Unincorporated Association, et al., Plaintiffs and Appellants, v. Sherman CHICKERING et al., Defendants and Respondents.

Civ. 36154.

Decided: December 17, 1975

Robert M. Berman, San Francisco, for plaintiffs and appellants. Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Denis Smaage, Deputy Atty. Gen., Sacramento, for defendants and respondents.

Must the Fish and Game Commission, before fixing a season for hunting or fishing, provide and environmental impact report? That is the question presented on this appeal.

In 1974, the commission fixed a season for the hunting of black bear, and issued hunting permits for that season. Two days before the bow and arrow season was to open, and 30 days before the scheduled opening for gun hunting, appellant petitioned for writ of mandate requiring suspension of the seasons and revocation of the permits. Respondents were the members of the commission, the commission itself, and other state agencies possibly concerned. Although this action directly concerns only a season for hunting of black bears, a rather small component of the total wildlife population of California, it is apparent that its result will govern the fixing of hunting and fishing seasons for all the many species of fish, birds and mammals for which seasons are and traditionally have been fixed by the commission. The trial court issued alternative writ and, upon return thereto, heard argument. By written minute order, the trial judge announced his decision denying peremptory writ. Appellant did not await written judgment or formal entry of the minute order, but filed notice of appeal three days after announcement of the decision. In view of the full presentation of the case below, and its briefing here, we treat the appeal as timely filed. (Cal.Rules of Court, rule 2(c).) We have concluded that denial of the writ must be affirmed.

The California Constitution (art. IV, § 20) authorizes the Legislature to ‘delegate to the commission such powers relating to the protection and propagation of fish and game as the Legislature sees fit.’ A like provision has existed since 1940 (former art. IV, § 25 1/2). The Legislature has delegated to the commission ‘the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles to the extent and in the manner prescribed in this article.’ (Fish & Game Code, § 200.) As to birds and mammals, the commission specifically may ‘Establish, extend, shorten, or abolish open seasons and closed seasons.’ (Fish & Game Code, § 203, subd. (a).) Like authority exists as to fish, amphibia, and reptiles. (§ 205.)

The statute requires public meetings by the commission at fixed dates. Meetings held in April and May deal with mammals (§ 206). That section also requires publication of notice of the meetings in a newspaper in each county of the state. At the April meeting, the commission ‘shall receive recommendations from its own officers and employees, from the department and other public agencies, from organizations of private citizens, and from any interested persons as to what, if any, regulations should be made relating to * * * mammals, or any species or subspecies thereof’ (§ 211), and ‘shall publicly announce * * * the regulations it intends to make’ (§ 212). At the May meeting, the commission ‘shall hear and consider’ objections to those proposals. At or within 10 days after the May meeting, the commission shall make regulations. The regulations shall be such as the commission ‘deems necessary to preserve, properly utilize or maintain the best relative number of each such species or subspecies.’ (§ 213.)

It is apparent that, as to permitting and limiting hunting and fishing seasons, the Fish and Game Code provides every safeguard contemplated by the Environmental Quality Act (Pub.Resources Code, § 21000 et seq.) and the environmental impact report required thereby. Broad notice requirements invite public knowledge and ‘input’ in the initial suggestion of seasons to be fixed. A second hearing, also widely noticed, is held to consider objections to proposals made at the hearing of the preceding month. The commission then fixes regulations ‘necessary to preserve, properly utilize, or maintain the best relative number of each’ species. These guidelines amply establish the criteria by which the commission is to determine the environmental impact of any hunting or fishing season it establishes. Legislators receive minutes of the first meeting at which suggestions are offered. (§§ 208, 211.)

We hold that, by clear implication, the legislative intent and the effect of the Environmental Quality Act is to exempt from that act and its requirement of environmental impact reports the action of the Fish and Game Commission in the fixing of hunting and fishing seasons. The elaborate time schedule for hearings and determination within a period of less than two months simply does not allow for preparation of such a report. After presentation of suggestions to the commission, the hearing upon objection to those suggestions must be held in the following month. A maximum of but 10 days thereafter is allowed for making regulations. (§ 213.) Since passage of the Environmental Quality Act, the Legislature has amended eight (§§ 206, 207, 211, 213, 214.5, 217, 221, and 222) of the 23 sections of article 1, chapter 2 of division 1 of the Fish and Game Code, the article which fixes these time tables, but has not modified them to allow even minimum time for an EIR, nor has it even remotely suggested, in the Fish and Game Code, any requirement of such a report. It seems apparent that the Legislature, when it adopted the later act, recognized that all its purposes had long since been achieved in the field of hunting and fishing seasons. Aside from the gross impracticality of reconciling the time schedules of the Fish and Game Code to the requirements of an EIR, it is apparent that the sheer volume of EIR reports upon the many separate seasons for hunting and fishing in the five fish and game districts would completely disrupt, if not destroy, the commission function of fixing seasons for hunting and fishing. No intent to reach such result is indicated by the Legislature.

Our view that exemption is necessarily implied finds further support in the very nature of the function assigned to the commission. As we have pointed out, the Constitution directly authorizes delegation of legislative power to the commission, and the Legislature has specifically delegated its power in this field to the commission. The effect of commission action as legislation is further emphasized by the provision that, if the code provisions authorizing season fixing expire, ‘all regulations made pursuant to that article * * * are continued as statutory enactments and shall have the same force and effect as if enacted by the Legislature.’ (§ 250.) Clearly, the commission, in fixing seasons, acts as an arm of the Legislature. But the Legislature itself is not a ‘state agency, board of commission’ within the definition of the Environmental Quality Act. (Pub.Resources Code, § 21063.) Nor is it reasonable to include in such definitions the rare body to which, by constitutional authority, the Legislature has delegated a limited portion of its powers. Just as the Legislature has, by necessary implication, exempted its own law-making actions from the EQA, it has implied the exemption of this limited area of Fish and Game Commission action.

In this light, the legislative intent in EQA to ‘Prevent the elimination of fish or wildlife species due to man's activities' (Pub.Resources Code, § 21001, subd. (c)) cannot be construed to extend that act to the fixing of hunting and fishing seasons by the commission. Well before 1970, the Legislature had laid down the rules, summarized above, which assured that this objective should not be thwarted by the commission. The declared legislative EQA intent has ample room to operate upon those activities of may which pollute streams, denude forests, and constrict wildlife areas. We construe the declaration as limited to such activities.

No party to this case has argued, here or below, that findings by the commission are required, much less that they need be ‘the functional equivalent’ of an EIR. That issue has been raised only by the dissenting justice of this court. Administrative mandamus (Code Civ.Proc., § 1094.5) is not applicable to agencies exercising legislative or quasi-legislative functions. (Pitts v. Perluss, 58 Cal.2d 824, 833–834, 27 Cal.Rptr. 19, 377 P.2d 83; Brock v. Superior Court, 109 Cal.App.2d 594, 598–601, 241 P.2d 283.) Findings are required in a proceeding under section 1094.5. (Topanga Ass'n For a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 515, 113 Cal.Rptr. 836, 522 P.2d 12.) The action of the commission here sought to be reviewed is, however, legislative in nature. It follows that the historical or traditional mandate procedure (Code Civ.Proc., § 1084, et seq.) is the applicable remedy. We find in that procedure no requirement of findings by the agency to be reviewed, save as the applicable code section may require. In such a proceeding, ‘judicial review is limited to an examination of the proceedings before the officer to determine whether his action has been arbitrary, capricious, or entirely lacking in evidentary support, or whether he has failed to follow the procedure and give the notices required by law.’ (Pitts v. Perluss, supra, 58 Cal.2d at p. 833, 27 Cal.Rptr. at p. 24, 377 P.2d at p. 88; Brock v. Superior Court, supra, 109 Cal.App.2d at p.605, 241 P.2d 283; California Ass'n of Nursing Homes Etc., Inc. v. Williams, 4 Cal.App.3d 800, 815, 84 Cal.Rptr. 590, 85 Cal.Rptr. 735.) Findings by the commission are not required by the code sections which authorize it to fix seasons. In fact, these code sections permit the commission to make only those regulations which are ‘necessary to preserve, properly utilize or maintain the best relative number of each such species.’ Since the commission acts only within this limited sphere, the only finding it could make would but repeat the statutory language although, for esthetic purposes, some such statement could be made. The dissent recognizes the impracticality of requiring an EIR as to each season. We find no cure for this admitted problem in requiring findings which are the ‘functional equivalent’ of the report that is not required.

The judgment denyng writ of mandate is affirmed.

I agree with the majority that an EIR is nor required in this case. I reach this conclusion, however, because the statutory scheme by which the Fish and Game Commission establishes hunting seasons is a functional equivalent of an EIR if its requirements are followed. I believe one of these requirements to be the preparation of findings which were not made prior to promulgating the regulations in question. I would, therefore, remand the cause to the superior court with directions to issue a writ of mandamus directing the Fish and Game Commission to prepare findings regarding any regulations concerning black bear.

Section 21100 of the Public Resources Code provides for the preparation of an EIR on any project which a state agency proposes to carry out ‘which may gave a significant effect on the environment.'1 Sections 21065, subdivision (c), of the Public Resources Code and 15037(a) of Title 14 of the Administrative Code define ‘project’ as an activity resulting in physical impact on the environment and include the issuance to a person of a permit or license by one or more public agencies. Sections 21063 of the Public Resources Code and 15038 of Title 14 of the Administrative Code define ‘public agency’ as including any state agency, board or commission.

The Environmental Quality Act (EQA) of 1970 of which these sections are a part does not expressly exempt the Fish and Game Commission from the requirements of the act. The act does exempt projects which do not have a significant effect on the environment and requires that guidelines be prepared which include a list of classes of projects which are exempt for this reason. (Pub.Resources Code, § 21084.) The Administrative Code includes as a categorical exemption under this criterion ‘Actions By Regulatory Agencies for Protection of Natural Resources,’ and specifically includes as an example the State Department of Fish and Game. (Tit. 14, Admin.Code, § 15107.)2

The exclusion of the State Department of Fish and Game from the requirements of the EQA cannot be justified on the ground that its regulations have no significant effect on the environment. The very purpose of the Fish and Game Commission regulations is to have an effect on the environment and it is because the effect is allegedly benign that the State now argues exemption.

Perhaps recognizing this inconsistency, the Attorney General does not rely on the Administrative Code or attempt to argue that the ‘significant effect’ requirement of section 21100 can be read ‘significant adverse effect.’ It is, however, contended that the Fish and Game Commission and the Department of Fish and Game are impliedly exempt from the act because the only reason for the existence of the agency is to protect fish and wildlife and because the procedural requirements of the agency provide a functional equivalent to an environmental impact report. Support for this position can be found in federal cases in which it has been held that the Environmental Protection Agency was not required to prepare an environmental impact statement under the National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.) prior to promulgating regulations for the implementation of the Clean Air Act Amendments of 1970. (See Anaconda Company v. Ruckelshaus (10th Cir. 1973) 482 F.2d 1301; Appalachian Power Co. v. Environmental Protection Agcy. (4th Cir. 1973) 477 F.2d 495, 598; Duquesne Light Co. v. Environmental Protection Agcy. (3d Cir. 1973) 481 F.2d 1.) In Portland Cement Association v. Ruckelshaus (1973), 158 U.S.App.D.C. 308, 486 F.2d 375, the court refused to hold that a broad exemption applied to agencies whose purpose was to protect the environment. ‘The policies against a NEPA exemption embrace the endemic question of ‘Who shall police the police’? As Senator Jackson stated, ‘It cannot be assumed that EPA will always be the good guy.’' (486 F.2d at p. 384.)

The court then concluded that the decisive factor in determining whether an environmental agency was exempt from the requirements of NEPA in a particular instance is whether there exists a functional equivalent of an impact report. The court found this equivalent existed in the requirement that the administrator accompany a proposed standard with a statement of reasons setting forth the environmental considerations, pro and con, which were taken into account and the provision for direct judicial review.

The statutory scheme set forth in the Fish and Game Code for the adoption of regulations provides that, prior to determining hunting regulations each year, the commission is required to hold three public meetings at specified times and places and after public notice. (Fish & G.Code, §§ 206, 207, 211, 212, 213.) In addition to providing this means of public input, the Fish and Game Code has requirements similar to the EQA in providing for input from other state agencies and information to the Legislature. The EQA requires consultation with other public agencies which have jurisdiction of the subject matter (Pub.Resources Code, § 21104); the Fish and Game Commission must consult the Department of Fish and Game and other public agencies for their recommendations (Fish & G.Code, §§ 208, 211). EQA requires that the environmental impact report be made available to the Legislature (Pub.Resources Code, § 21105); the Fish and Game Commission must mail the minutes of its April and October meetings, where recommendations from the public are received, to each member of the Legislature whose district is affected by the proceedings (Fish & G.Code, §§ 208, 211).

What is missing in equating the two statutory schemes, the EQA and the Fish and Game Code, is a written report or statement of reasons which would provide a focal point from which the judgment of the agency can be assessed. Limited written findings would perform this function and should have been made.

Fish and Game Code section 218 provides that, ‘Any regulation of the commission made pursuant to this article shall be subject to review in accordance with law by any court of competent jurisdiction.’ This review must encompass consideration of the evidence relied on by the agency in promulgating its decision. As the court explained in California Ass'n of Nursing Homes etc. v. Williams (1970) 4 Cal.App.3d 800, 815, 84 Cal.Rptr. 590, 600: “As to the quasi-legislative acts of administrative agencies, ‘judicial review is limited to an examination of the proceedings before the officer to determine whether his action has been arbitrary, capricious, or entirely lacking in evidentary support, or whether he has failed to follow the procedure and give the notices required by law.”: (Pitts v. Perluss, supra, 58 Cal.2d at p. 833, 27 Cal.Rptr. at 24, 377 P.2d at 88, quoting from Brock v. Superior Court, supra, 109 Cal.App.2d at p. 605, 241 P.2d 283; see also Rivera v. Division of Industrial Welfare, supra, 265 Cal.App.2d at p. 594, 71 Cal.Rptr. 739.) Without identification of the evidence forming the basis of the agency's action, a reviewing court can neither affirm nor deny the existence of evidentiary support. The court cannot invalidate the action by measuring evidence produced by its assailant, for it may differ from the evidence considered by the administrator. . . .’ (Emphasis added.) (At pp. 815–816, 84 Cal.Rptr. at p. 600.)

In the instant case, no findings were prepared by the Fish and Game Commission before issuance of the regulations concerning the hunting of black bear and the failure to make findings, I believe, compels reversal here.

I do not agree with the statement of the majority of this court that the only finding that the commission could make would be to repeat the statutory language of the purpose of the commission, i. e., that it had enacted the regulation because of the necessity ‘to preserve, properly utilize, or maintain the best relative number of each such species or subspecies.’ Such a statement would be a conclusion, not a finding which a court could review under the authority provided in Fish and Game Code section 218.

The State speaks of the overwhelming burden of preparing an EIR before enactment of each of the multitudinous regulations promulgated by the Fish and Game Commission. In view of the extensive studies by the Department of Fish and Game, however, I cannot share the fear that there will be any significant additional burden in preparing findings appropriate to the proposed regulation.

In Topanga Ass'n for a Scenic Community v. County of Los Angeles (1974), 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12, the guidelines are set forth for findings under administrative mandamus, Code of Civil Procedure section 1094.5. While traditional mandamus, Code of Civil Procedure section 1085, and not administrative mandamus is applicable here, I feel that the guidelines articulated in Topanga in the preparation of such findings are relevant. The Supreme Court in Topanga states: ‘[T]hat body must render findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board's action.’ (11 Cal.3d at p. 514, 113 Cal.Rptr. at p. 841, 522 P.2d at p. 16) The extent and detail of the findings required to be made by the Fish and Game Commission must necessarily depend upon the subject of the proposed regulations.

In Trout Unlimited v. Morton (9th Cir. 1974), 509 F.2d 1276, the requirements of an EIR are specifically discussed. The guidelines for such report would apply with equal force to findings by the Fish and Game Commission. The report need not contain ‘remote and highly speculative consequences.’ A reasonable discussion of the significant aspects of the environment consequences is all that is required. (At p. 1283.) ‘Supporting studies need not be physically attached’ to the report. ‘They only need be available and accessible.’ (At p. 1284.) The range of an alternative plan ‘need not extend beyond those reasonably related to the purposes of the project.’ (At p. 1286.)

In brief, the only requirement in the preparation of the findings to make them the equivalent of an EIR is that why they be ‘sufficiently detailed to aid the decision-makers in deciding whether to proceed or not and to provide the information the public needs to enable both those who would challenge, and those who would support, the project to respond effectively.’ (509 F.2d at p. 1286.) The findings of the California Fish and Game Commission should flow naturally from the studies and deliberations which must be made to promulgate regulations in keeping with the purposes for which this department of state government was created.

FOOTNOTES

1.  Section 21100 of the Public Resources Code provides:‘All state agencies, boards, and commissions shall prepare, or cause to be prepared by contract, and certify the completion of an environmental impact report on any project they propose to carry our or approve which may have a significant effect on the environment. Such a report shall include a detailed statement setting forth the following:‘(a) The environmental impact of the proposed action.‘(b) Any adverse environmental effects which cannot be avoided if the proposal is implemented.‘(c) Mitigation measures proposed to minimize the impact including, but not limited to, measures to reduce wasteful, inefficient, and unnecessary consumption of energy.‘(d) Alternatives to the proposed action.‘(e) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity.‘(f) Any irreversible environmental changes which would be involved in the proposed action should it be implemented.‘(g) The growth-inducing impact of the proposed action.’

2.  Pertinent sections of the Administrative Code read:‘15100. Section 21084 of the Public Resources Code requires these Guidelines to include a list of Classes of projects which have been determined not to have a significant effect on the environment and which shall, therefore, be exempt from the provisions of the Environmental Quality Act of 1970.‘In response to the mandate, the Secretary for Resources has found that the following classes of projects listed in this article do not have a significant effect on the environment and they are declared to be categorically exempt from the requirement for the preparation of environmental documents.’‘15107. Class 7: Class 7 consists of actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment. Examples include but are not limited to wildlife preservation activities of the State Department of Fish and Game. Construction activities are not included in this exemption.’

DRAPER, Presiding Justice.

SCOTT, J., concurs.