Coastside Fishing Club sues to stop MLPAs

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Posted by on November 10, 2005 at 19:01:51:

Today the Coastside Fishing Club filed a lawsuit in the Superior Court for the County of Del Norte (Crescent City) against the California Resources Agency, the Department of Fish and Game, and the Resource Legacy Fund Foundation to stop special interest funding for the promulgation of California regulations. In the case, we seek to stop the flow of millions of dollars in funding from self-described "environmental" groups for the implementation of the Marine Life Protection Act. The case is not about the value or lack of value of the MLPA, the MPAs it seeks to establish, or the well-meaning people on both sides of this issue. Its target is solely the funding mechanism.

We feel there is something dramatically wrong when millions of dollars of special interest money is solicited and used to pay for the public welfare.

I have been told several times that the millions given by RLFF (and the "environmental" groups behind the RLFF) has no expected quid pro quo.Perhaps this is one of those rare circumstances when money does not buy political influence, but we cannot not take that risk. Nor can we live with a government that only pursues projects, and only follows legislative directives, when special interest funding is available. That is why we have a legislature -- if they want to accomplish an objective for the public good, they must be prepared to fund it and answer to the public. Through the private funding of the MLPA, however, there are no checks and balances.

By not filing suit, we feared that our collective future would be held hostage to the whims of special interest funding. In fact, just last week at the PFMC meeting, there was talk of the state soliciting private funds to fulfill other public responsibilities regarding fishery management plans. This new "formula" will be standard procedure unless we stop it now.

I want to make two more points before you read what we filed. First, we are taking on goliath, and the special interests behind the RLFF likely view "public-private partnerships" as a powerful weapon to get what they want. We expect them to fight to keep their new weapon, making Coastside a target. Second, and because Coastside will be a target, this lawsuit carries with it some financial risk. But, thanks to your donations the funds are available in our treasury to defend our right to fish, and to make sure that when our children grow up they will be able to catch a fish with their children.

Bob Franko

One Market, Spear Street Tower
San Francisco, CA 94105-1126
Tel: 415.442.1000
Fax: 415.442.1001

111 Sutter Street, Suite 1950
San Francisco, CA 94104
Tel: 415.962.4400
Fax: 415.962-4401)

Attorneys for Petitioner and Plaintiff
Coastside Fishing Club

Respondents. Case No. _____________________

Petitioner and Plaintiff COASTSIDE FISHING CLUB (hereinafter collectively referred to as "Petitioner") hereby alleges as follows:


1. This is a case to invalidate, on California constitutional grounds, an arrangement by which certain "environmental" interest groups have funded the preparation of plans and regulations governing California’s marine and fisheries resources. Petitioner Coastside, representing nearly 10,000 California recreational fishermen, brings this action against Respondents and Defendants the California Resources Agency ("Resources Agency"), the California Department of Fish and Game ("Department"), and the Resources Legacy Fund Foundation ("RLFF"). Respondents have entered into a contract, called a Memorandum of Understanding ("MOU"), which, at its core, provides for private special interest funding of public rule-making under the Marine Life Protection Act ("MLPA"). Because the MOU violates the California constitution, Coastside seeks a declaration of this Court invalidating the MOU, and seeks an injunctive prohibiting further funding under the MOU.

2. In 1999, and through the MLPA, California Fish and Game Code §§2850-2863, the California legislature directed the Department to prepare a "master plan" for the establishment of a marine life protection program to preserve and protect marine life along California’s coast. The goal was to "protect California’s marine natural heritage through the establishment of a network of marine protected areas . . . in order to protect the diversity and abundance of marine life and the integrity of marine ecosystems."

3. However, the legislature failed to appropriate any funds for implementation of the MLPA for the following five years, and no "master plan" was created. Given the size of the California state budget (over $100 billion), the funding the Department claimed to need to develop a "master plan" under the MLPA - less than $2 million - was extremely modest, yet the California legislature elected not to fund the MLPA given other needs deemed more important.

4. To overcome the lack of funding, Respondents created the "California Marine Life Protection Act Initiative" in 2004. Under this initiative, the Resources Agency and the Department solicited private funds from self-described "environmental" groups to pay for implementation of the MLPA’s mandates.

5. On August 27, 2004, and through the MOU, Respondent RLFF - a non-profit environmental group itself funded by other environmental groups - obligated itself to pay essentially all costs associated with implementation of the MLPA, including the salaries of Department personnel assigned to implement the statute. Over three years, RLFF promised to deliver over $7 million in funding, as well as in-kind services, to accomplish the legislative directives set forth in the MLPA, including the development of a "master plan."

6. This action seeks to compel Respondents to cease further performance under the MOU. Nowhere in the MLPA (or anywhere else) did the legislature confer authority upon the Resources Agency or the Department to enter into a private funding arrangement for implementation of the statute. And, by accepting private funding to carry out a public law, Respondents have usurped the legislative power to appropriate funds, in violation of the separation of powers provision of the California constitution. See California Constitution, Article III, Section 3.

7. The California constitution recognizes that appropriations are properly confined to the legislative branch - where divergent and competing views and interests are represented, and where tax dollars are allocated after public debate and the evaluation of competing needs. See California Constitution, Article XVI, Section 7. The MOU subverts this process by abdicating administrative and regulatory functions properly held by the government to a particular special interest group, Respondent RLFF.

8. Private funding arrangements like that contained in the MOU provide the California legislature with "off the books" funding for a myriad of California laws. If private funding such as that provided by the MOU is sanctioned, the legislature can elect to under-fund a variety of important laws, knowing that special interests most affected by a law will bridge any funding shortfall. In the end, the MOU, and agreements like it, open the door for special interests to bid against one another in order to develop and draft California laws and regulations.


9. Petitioner and Plaintiff Coastside Fishing Club is a non-profit mutual benefit corporation, organized and registered under California law. Coastside has approximately 10,000 members who are California anglers with particular interests in the regulation of California’s marine resources. Coastside Fishing Club and its membership have a beneficial interest in, and will be directly affected by, the regulations at issue here, because Coastside members must comply with any and all MLPA regulations. Coastside’s members are also beneficially interested in this action as California citizens and taxpayers, as Coastside contends that the actions of Respondents alleged herein are unconstitutional.

10. Respondent and Defendant Department of Resources ("Resources Agency") is a legislative agency which oversees sub-agencies such as the Department of Fish and Game, the Department of Boats and Waterways, and the Department of Parks and Recreation. The secretary of the Resources Agency sits on the Governor’s cabinet.

11. Respondent and Defendant Department of Fish and Game ("Department") is a legislative agency, specifically a sub-agency of the California Resources Agency, created pursuant to the California Government Code Section 12800.

12. Respondent and Defendant Resources Legacy Fund Foundation ("RLFF") is a private non-profit organization based in Sacramento, California that administers the Resources Legacy Fund. According to its web-site, the RLFF’s mission is to promote land conservation and environmental protection.

13. The names of other Respondents, sued herein as Does 1-10, are presently unknown to Coastside. Each of the Respondents designated herein as a Doe is legally responsible in some manner for the unlawful acts referred to herein. Plaintiffs will seek leave of the Court to amend this petition to reflect the true names and capacities of the Defendants designated as Does 1-10 when their identifies become known.

14. This action involves the enforcement of important rights affecting the public interest. Accordingly, should Coastside prevail in this action, Coastside will confer a significant benefit on the citizens of the state of California. Coastside is therefore entitled to an award of reasonable attorneys’ fees pursuant to California Code of Civil Procedure §1021.5.


15. This Court has jurisdiction over the matters alleged herein pursuant to Section 1085 of the California Code of Civil Procedure.

16. Venue of this action is proper in the County of Del Norte pursuant to California Code of Civil Procedure §393. Members of Coastside Fishing Club fish and utilize marine resources in Del Norte County, and the effects of the administrative action complained of herein will be felt in Del Norte County, among other counties (especially coastal counties) in California.

17. Coastside has complied with any and all conditions precedent to the institution of this action and has exhausted any and all available alternatives to bringing suit. By way of example, but not limitation, Coastside formally objected to private funding of the MLPA in April 2005, and requested that Respondents voluntarily cease private funding of the MLPA in August 2005. Each of Coastside’s efforts were rejected, making this suit necessary.


18. In 1999, the California legislature passed the Marine Life Protection Act (the "MLPA"), directing the state to define and manage a network of marine protected areas ("MPAs") in order to protect marine life and habitats along California’s coastline. See Cal. Fish and Game Code §2850, et. seq. MPAs are defined geographic areas where both fishing and recreational opportunities are either curtailed or disallowed. The MLPA was passed in reaction to a groundswell of complaints from fishermen and marine conservationists, who believed that California’s existing marine protected areas were poorly defined and did little to protect marine resources.

19. By statute, the MLPA was to be implemented by January 1, 2003 through development of a marine life protection "master plan" ("Plan") drafted by the Department, as well as associated regulations developed by the California Fish and Game Commission ("Commission") pursuant to that Plan. Under the statute, the Department was first directed to "convene a master plan team to advise and assist in the preparation of the master plan, or hire a contractor with relevant expertise to assist in convening such a team." Cal. Fish & Game Code §2855. A proposed final Plan was then to be submitted to the Commission, who would adopt the Plan, and prepare a Marine Life Protection Program through "regulations based on the [P]lan," and implement those regulations "to the extent funds are available." Fish and Game Code §2859(b).

20. From the start, there were signs that the California legislature did not intend to fund the process spelled out in the MLPA. Upon passage, the legislature elected not to appropriate funds to implement the MLPA, and the MLPA was instead funded through two federal grants.

21. Following passage of the MLPA, and with funding from the federal grants, the Department began development of a Plan for a statewide network of marine protected areas. The Department abruptly abandoned the work, however, amid protest that the Department failed to seek public input, and failed to use the available scientific information in preparing its initial drafts of a Plan.

22. In early 2002, the Department said that it was "wiping the slate clean," and would begin the entire process anew with "significant levels of constituent input." At the time, however, many warned that additional funding for implementation of the MLPA would be needed, and that state legislative appropriations and federal grants would need to increase if the MLPA was to be implemented.

23. In 2002, the Department established working groups throughout the state to again formulate an MLPA Plan, and at the same time sought a two-year extension on the due date for delivery of the Plan to the Commission. Eventually, the Department obtained what would become the first of several extensions, requiring final Plan adoption by January 1, 2005.

24. In 2003, citing reductions in funding, the Department further delayed implementation of the MLPA. In March 2003, a temporary halt was placed on further development of a Plan, and the meetings of the "working groups" established just one year earlier were postponed. Eventually, by early 2004, and under the Schwarzenegger administration, an indefinite hold was placed on development of the Plan. A Department spokeswoman blamed the indefinite hold on the reduction in Department staff: "We don’t see rolling out the stakeholder process or rebooting it until we can address our staffing situation."

25. On January 15, 2004, the Department’s acting director stated that "the Department has decided to place the process on a permanent hold and disband the Regional Working Groups, Master Plan Team, and other project support teams." Governor Arnold Schwarzenegger excluded a $2 million request from the Department needed for further development of the Plan from his 2004 budget. Thus, the legislative and executive branches of California state government both chose not to fund further MLPA activities, and the Resources Agency and Department elected not to direct other funds to carry out the objectives specified by the MLPA.

26. In response, environmental and other special interest groups urged California citizens to send messages to their state legislators, as well as the Governor, to appropriate funds for the MLPA. Many openly criticized the legislative failure to fund the MLPA as poor public policy.

27. In response to this criticism, neither the executive nor the legislative braches of California’s government proposed funding for the MLPA. Instead, in early 2004, rumors began to surface that the secretary of Resources, Mike Chrisman, was seeking money to implement the Plan - money Governors Davis and Schwarzenegger had refused to provide in their budgets, and money the California legislature refused to appropriate - through private sources. The "private source" most commonly mentioned was the David and Lucile Packard Foundation of Los Altos, California - a private foundation with $6 billion in assets and a well-documented "environmental" agenda.

28. Eventually, in August 2004, the Schwarzenegger administration announced that development of the MLPA Plan would be restarted through a significant influx of private funding. Under this new plan - dubbed the "Marine Life Protection Act Initiative" - funding was to be provided by several private foundations, including the Packard Foundation and the Gordon and Betty Moore Foundation. The Resources Legacy Fund Foundation ("RLFF") - another private environmental group - was named responsible for coordinating private donations for implementation of the MLPA.

29. Conceding past failures to implement the MLPA according to statutory deadlines, the Department characterized the "Initiative" as a public-private "partnership," even though special interests pledged $7.5 million in funding (with $3.22 million coming from the Gordon and Betty Moore Foundation), while California - for the first time - pledged just $500,000: To date, the Marine Life Protection Act has not been implemented as quickly as intended . . . Acknowledging the importance of protecting the state’s ocean heritage, California aims to achieve the goals of the MLPA by pursuing the California Marine Life Protection Act Initiative, a cooperative effort funded by a public-private partnership . . . .

30. A "funders statement" by RLFF on the Department’s web-site, after noting the RLFF’s "independent" status, indicated the source of funds for the "Initiative": Funders of RLFF’s work to conserve and restore marine ecosystems include the David and Lucile Packard Foundation, the Marisla Foundation, and the Gordon and Betty Moore Foundation. These philanthropic foundations have programs that seek healthy oceans, healthy fisheries, and vibrant fishing communities for generations to come.

31. The "Initiative" was eventually reduced to a Memorandum of Understanding ("MOU") between Resources, the Department, and the RLFF, which was executed on August 27, 2004. Key provisions of the MOU - attached to this petition as Exhibit A - include the following:

  • The Secretary of Resources, Mike Chrisman, was to appoint unpaid advisors to a "Blue Ribbon Task Force" to oversee preparation of a draft Plan. Travel and other reasonable expenses incurred by the Task Force would be paid by RLFF.
  • The "Blue Ribbon Task Force" was to be assisted by four executive staff members. The salaries of these executive staff members was to be paid by the RLFF.
  • Other staff members used to support the "Blue Ribbon Task Force" were to contract with, and be paid entirely by, the RLFF. For example, in February 2005, the Department issued a "Request for Statement of Qualifications" seeking researchers in various scientific fields. The Department was clear that qualified researchers - those who would develop the scientific blueprint for the Plan - would be "privately contracted, using non-state funds."
  • The RLFF also agreed to fund the salaries of various Department of Fish and Game Staff, including (1) a senior biologist specialist; (2) a senior biologist supervisor; (3) an assistant analyst; (4) a research analyst technician; and (5) a public information officer. RLFF committed to fund these salaries, along with related benefits and other expenses, in an amount of up to $750,000 through December 31, 2006.
32. In essence, the MOU obligates RLFF to pay for virtually the entire cost of the MLPA process. The Department has conceded that the "Initiative," as embodied by the MOU, was only made "possible through the efforts of private and government partners who are providing funding and in-kind services."

33. Eventually, after execution of the MOU, nine individuals were appointed to the "Blue Ribbon Task Force," and the Central Coast - an area from Point Conception to Pigeon Point - was selected as the first of California’s coastline areas to undergo study for development of MPAs under the MLPA. The "Blue Ribbon Task Force" is currently overseeing efforts to develop a Plan for the Central Coast region (and not the entire state), and seeks to present that Plan to the Commission by March 2006.

34. Throughout this process, Coastside representatives have participated as "stakeholders," and have sought to share their input regarding the development of a Plan for the Central Coast. Moreover, at all times, Coastside has objected to the use of private funds to implement a public statute. Coastside’s objections have not been heeded, and, today, special interest groups are funding the development of "master plans" for marine protected areas along California’s Central Coast.

35. Coastside is concerned that should private funding arrangements like that provided for in the MOU be allowed, the development of implementing regulations will be opened to the highest bidder. Indeed, there are already indications that the Department seeks additional private funding to carry out other legislative mandates. In connection with recent meetings regarding salmon fishery management plans, Department personnel expressed interest in an offer from commercial fishing interests to fund amendments to fishery management plans, as well as implementing regulations.


36. Coastside incorporates by reference, as though fully set forth herein, paragraphs 1 through 34 inclusive.

37. Pursuant to the Fish and Game Code, the Resources Agency and the Department are not authorized to seek private funding to implement the MLPA. Moreover, under the California Constitution, only the legislature has the power to appropriate funds. See California Constitution, Article III, Section 3 ("The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution"); Article XVI, section 7 ("Money may be drawn from the Treasury only through an appropriation made by law and upon a Controller's duly drawn warrant").

38. The Resources Agency and the Department have failed to act reasonably in that they have solicited and received private funding to implement the MLPA, and have in effect sought a non-legislative appropriation of funds. The Resources Agency and the Department have acted outside the scope of their statutory authority, and are in violation of the Separation of Powers doctrine.

39. The Resources Agency and the Department have entered into an illegal and unconstitutional contract with RLFF. Petitioners, and all California citizens, have already suffered harm, and will suffer additional harm, as alleged herein.


40. Coastside incorporates by reference, as though fully set forth herein, paragraphs 1 through 38 inclusive.

41. An actual controversy has arisen and now exists between Coastside and Respondents, and Coastside requests a determination of this Court that the MOU and related actions by Respondents are illegal, void, unconstitutional, and of no force or effect.

42. Because Respondents refused Coastside’s informal requests to cease performance under the MOU, a judicial determination of this controversy is appropriate and necessary at this time


43. Coastside incorporates by reference, as though fully set forth herein, paragraphs 1 through 41 inclusive.

44. The conduct of Respondents, and each of them, unless and until enjoined and restrained by order of this Court, will cause great and irreparable injury in that private interests will control the development and implementation of a public law.

45. Coastside has no adequate remedy in law.

46. Coastside requests temporary, preliminary and permanent injunctive relief requiring Respondents, their agents, servants, employees and all persons acting under and in concert with or for them to refrain from all further performance under the MOU between then, including but not limited to the use of private funds for the salaries of public servants, and the use of private funds to develop a Marine Life Protection Act Plan.

WHEREFORE, Coastside prays for the following relief:

1. That this Court issue an appropriate Writ of Mandate pursuant to California Code of Civil Procedure §1085 directing Respondents to cease all performance under the Memorandum of Understanding and cease acceptance of private funds for implementation of the MLPA.

2. For a judgment declaring that the private funding of administrative acts and regulatory processes is unconstitutional under the California and U.S. Constitutions.

3. For an order prohibiting Respondents from taking any action to carry out, implement, or enforce the MLPA with the assistance of private funding pending trial of this case.

5. For reasonable attorneys’ fees;

6. For costs of suit incurred herein;

7. And for such other and further relief as the Court may deem proper.

Dated: November 9, 2005

Benjamin P. Smith
Attorneys for Petitioner and Plaintiff
Coastside Fishing Club

I, Robert J. Franko, declare as follows:
1. I am authorized to execute this Verification on behalf of the Petitioner and Plaintiff named herein. I am the chairman of the board of Coastside Fishing Club.
2. I have read the foregoing Petition and Complaint and know the contents thereof.
3. The same is true of my own knowledge, except as to those matters that are alleged on information and belief and as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this ___ day of November, 2005, at Half Moon Bay, California.

Robert J. Franko

Thanks for your club support. Our fishery is too important not to care.

Bob Franko

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