NORTHERN CALIFORNIA – A federal court has dismissed a case that alleged the California Department of Fish and Wildlife violated the federal Clean Water Act with its program that stocks fish in hundreds of water bodies.
Del Norte County resident Felice Pace and Missoula, Mont.-based Wilderness Watch filed the legal challenge to the fish stocking program in November 2012, as Lake County News has reported.
The suit alleged that the Department of Fish and Wildlife's practice of discharging fish by airplanes and canisters borne by packstock – oxygenated plastic bags – should have required permits under the National Pollutant Discharge Elimination System of the Clean Water Act.
Originally, the case documents indicated Humboldt, Del Norte and Lake County's water bodies were among those at issue.
However, a list provided by attorney Peter Frost of the Eugene, Ore.-based Western Environmental Law Center that shows the 241 California water bodies that were stocked by the agency in 2012 doesn't include any of Lake County's lakes or streams.
Counties that do have water bodies on the list include Alpine, Del Norte, El Dorado, Fresno, Humboldt, Inyo, Lassen, Madera, Modoc, Mono, Nevada, Placer, Plumas, Shasta, Sierra, Siskiyou, Tehama, Trinity, Tulare and Tuolumne.
The plaintiffs contended that stocking fish altered the lakes' nutrient levels, could spread disease to amphibians, and cause other disruptions in the lakes' biological integrity and food webs. They sought an injunction prohibiting the practices until the agency possessed permits.
Part of the allegation contended a violation of the Clean Water Act because of water released along with the fish that the plaintiffs said can harbor nonnative species of aquatic plants, invertebrates and fish, and therefore the program was releasing “biological materials” that constituted “pollutants” under federal law.
The Department of Fish and Wildlife challenged that point, arguing that the plaintiffs didn't back up their claim with additional information and that the practice was not a violation of federal law based on precedent set in a Ninth Circuit Court ruling in the case Association to Protect Hammersley v. Taylor Resources.
In a Nov. 4 order dismissing the Pace case with prejudice, Judge William Orrick of the U.S District Court's Northern District agreed with the department's argument, writing, “In Hammersley the Ninth Circuit considered how to define 'biological materials' and concluded that it means 'the waste product of a human or industrial process.'”
Orrick went on to say that the Department of Fish and Wildlife's introduction of live fish for stocking lakes “cannot be considered the waste product of a transforming human or industrial process” as defined in Hammersley.
Orrick also agreed with the Department of Fish and Wildlife that the plaintiffs failed to provide sufficient factual basis for their claim for relief under the Clean Water Act, and did not address in written court documents or in oral arguments that “deficiency in their pleadings,” despite having multiple opportunities to do so.
“Given that plaintiffs have not opposed defendants’ argument on its substance, the Court finds that plaintiffs’ allegation regarding the release of water (associated with the release of fish) is not actionable as pled,” Orrick wrote.
“In an era in which some prefer to litigate instead of pursue decision-making through the public process, I’m encouraged by this legal victory. Though we expect an appeal that could jeopardize our legacy statewide fishstocking program, it’s a big win for today,” said California Department of Fish and Wildlife Director Charlton H. Bonham in a written statement.
Frost said the plaintiffs have not decided whether to appeal the decision.
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