Lawsuit filed to stop special interest funding of Marine Life Protection Act

BigDog

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Dated Nov 10, 2005

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.

Respectfully
Bob Franko

BENJAMIN P. SMITH (SBN: 197551)
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1126
Tel: 415.442.1000
Fax: 415.442.1001

JAMES L. MILLER (SBN: 71958)
SNYDER, MILLER & ORTON
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

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF DEL NORTE
COASTSIDE FISHING CLUB,
Petitioner,
vs.
THE CALIFORNIA RESOURCES AGENCY; THE CALIFORNIA DEPARTMENT OF FISH AND
GAME; and THE RESOURCES LEGACY FUND FOUNDATION, and DOES 1-10,
Respondents. Case No. _____________________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND VERIFIED PETITION
FOR WRIT OF ORDINARY MANDATE

Petitioner and Plaintiff COASTSIDE FISHING CLUB (hereinafter
collectively referred to as Petitioner) hereby alleges as follows:
INTRODUCTION
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 Californias
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 Californias coast. The goal
was to protect Californias 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
MLPAs 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.
PARTIES
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 Californias 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. Coastsides 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 Governors 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 RLFFs 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.
JURISDICTION, VENUE AND STANDING
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 Coastsides efforts were rejected, making
this suit necessary.

GENERAL ALLEGATIONS
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 Californias 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 Californias 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
dont see rolling out the stakeholder process or rebooting it until we can
address our staffing situation.
25. On January 15, 2004, the Departments 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 Californias 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
states 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 Departments web-site, after
noting the RLFFs independent status, indicated the source of funds
for the Initiative:
Funders of RLFFs 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
Californias 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. Coastsides objections have not been heeded, and, today,
special interest groups are funding the development of master plans for
marine protected areas along Californias 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.

FIRST CAUSE OF ACTION
WRIT OF ORDINARY MANDATE
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.

SECOND CAUSE OF ACTION
DECLARATORY RELIEF
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 Coastsides informal requests to cease
performance under the MOU, a judicial determination of this controversy
is appropriate and necessary at this time
THIRD CAUSE OF ACTION
INJUNCTIVE RELIEF
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.
PRAYER FOR RELIEF
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
MORGAN, LEWIS & BOCKIUS LLP

SNYDER, MILLER & ORTON
By
Benjamin P. Smith
Attorneys for Petitioner and Plaintiff
Coastside Fishing Club
 
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