Court Overrules DFG's Demurrer to Complaint Challenging Lake and Streambed Alteration Program

The Siskiyou County Superior Court recently overruled a demurrer filed by the California Department of Fish and Game (DFG) in a case involving the interpretation of Fish and Game Code Section 1602. The case, filed by the Siskiyou County Farm Bureau (SCFB), seeks a judicial declaration that Section 1602 does not apply to the mere "act of extracting" water from a river or stream pursuant to a valid water right. A copy of the court's opinion may be found here.

In broad terms, Section 1602 requires than an entity notify DFG of any proposed activity that may substantially modify a river, stream, or lake. If DFG determines that the activity may substantially adversely affect fish and wildlife resources, a "Lake or Streambed Alteration Agreement" must be prepared. The agreement includes reasonable conditions necessary to protect those resources and must comply with the California Environmental Quality Act (CEQA). Additional information regarding DFG's lake and streambed alteration program may be found here.

According to the complaint, SCFB members have valid rights to extract water from the Scott and Shasta River watersheds. It charges that DFG has developed a "new and troubling application" of its lake and streambed alteration program, such that extracting water from rivers, streams, and lakes requires compliance with the program, irrespective of whether such extraction causes an alteration. SCFB contends that Section 1602 and related provisions "were never intended to apply to the mere act of extracting water in accordance with a valid water right, but were instead intended to apply only to watercourse-altering activities."

DFG demurred to SCFB's complaint. In overruling the demurrer, the court addressed DFG's chief arguments. First, DFG contended that the complaint is uncertain regarding the existence and nature of an actual controversy between the parties. The court dispensed with this contention, finding the allegations adequately clear and consistent, and sufficient to put DFG on notice of the claims against it. Second, the court rejected DFG's argument that the complaint fails to state an actual and present controversy, given the complaint's adequate description of the existence of a dispute. Third, DFG argued that the complaint is not ripe because it contains "myriad uncertainties and hypotheticals" and because there is no showing that any SCFB member is under imminent threat of prosecution or harm. The Court found that sufficient facts were pled by SCFB, which facts were effectively admitted by DFG through its own documents filed in a request for judicial notice, that a threat currently exists to the SCFB members "if they continue their established practice of using water from streams and rivers" before complying with section 1602. Finally, the court rejected DFG's laches argument, for the reasons set forth in SCFB's opposition to the demurrer.

The Court's decision on the demurrer clears the way for a judicial determination on the merits. DFG must now respond to the complaint within 30 days of the court's December 8 ruling.

For more information regarding this matter, please contact Danielle Teeters or Eric Adair, or the KMTG attorney with whom you normally consult.