Summary
The California Court of Appeal considers whether a writ of mandate should compel the City and County of San Francisco to obtain an amended water supply permit and immediately open Calaveras Reservoir to public fishing. The court holds that the plaintiff did not establish a clear, present ministerial duty because the applicable statutes and regulations allow the City to evaluate and propose fishing-program terms, address environmental and safety requirements, and pursue the permitting process. The court affirms the judgment denying mandamus relief.
Topics
Practice areas
Questions Presented
- Whether the City had a clear, present, ministerial duty under Health and Safety Code section 117045 and related regulations to immediately apply for an amended water supply permit and open Calaveras Reservoir to public fishing.
- Whether Fish and Game Code section 5943 and California Constitution article I, section 25 required immediate, unrestricted fishing access without completion of permitting, environmental review, and site-specific safety measures.
- Whether California Constitution article X, section 4, the public trust doctrine, and related constitutional provisions required the City to open the reservoir to fishing.
- Whether the City's delay in submitting an amended permit application constituted an abuse of discretion warranting mandamus or declaratory relief.
Holdings
- The City had no clear, present, ministerial duty to immediately submit an amended water supply permit application or open Calaveras Reservoir to public fishing. The applicable statutes and regulations gave the City discretion to evaluate and propose the terms, conditions, facilities, supervision, and environmental documentation needed for a fishing program before seeking State Water Resources Control Board approval.
- Fish and Game Code section 5943 and California Constitution article I, section 25 recognize a qualified public right to fish, but do not require immediate or unrestricted access without compliance with permitting, environmental, public-safety, and water-purity requirements.
- The Fish and Game Commission's 2020 CEQA review of statewide fishing-regulation changes did not resolve the environmental, infrastructure, safety, sanitation, or water-quality issues associated with a site-specific fishing program at Calaveras Reservoir.
- The trial court properly concluded that the City had not abused its discretion by declining to submit an amended permit application while it continued addressing the preconditions and information necessary for a compliant application.
Key quotations
“To obtain mandamus relief under Code of Civil Procedure sections 1085 and 1086, “the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty.”” (7)
“By its terms, Health and Safety Code section 117045 tasks SWRCB with making the ultimate determination of the terms and conditions to be included in a water supply permit.” (13)
“As SLO Sportsman’s explains, the public right to fish “must yield in appropriate factual situations to the reasonable exercise of the state’s inherent police power to protect public safety and welfare.”” (18)
Factual background
Calaveras Reservoir is owned by the City and County of San Francisco and supplies drinking water to approximately 2.7 million Bay Area residents. Its watershed management plan prohibits public access and fishing, although the reservoir contains resident rainbow and anadromous steelhead trout. After a prior proceeding required the City to determine whether fishing could occur without affecting water purity and safety, the City found that shoreline fishing could occur subject to CEQA review, State Water Resources Control Board analysis, and an appropriate fishing program. The City began planning safety, sanitation, access, security, and watershed-protection improvements, but had not yet submitted an amended water supply permit application when Dummer filed this action.
Procedural history
In an earlier proceeding, Dummer obtained an order requiring the City to determine whether fishing could occur without affecting the purity and safety of the reservoir water. The City subsequently adopted Resolution 22-0135, finding that shoreline fishing could occur subject to CEQA review, State Water Resources Control Board analysis, and terms to be set by the SFPUC General Manager. Dummer then filed this action seeking to compel immediate submission of an amended water supply permit application and immediate public fishing access. The superior court denied mandamus relief, finding no breach of a ministerial duty and no abuse of discretion in the City's failure to apply for an amended permit at that stage. The Court of Appeal affirmed.