Metropolitan News-Enterprise


Friday, October 6, 2023


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State Water Agency Is Not a ‘Person’ Under Fish and Game Code—Appeals Court

Opinion Says Department of Water Resources Cant’ Be Held Liable for Contaminating Waters


By a MetNews Staff Writer


A state agency s not a “person” for purposes of a statute prohibiting the release of harmful materials into California’s waters, the Third District Court of Appeal held yesterday.

Butte County District Attorney Michael L. Ramsey brought an action, in the name of the “People,” against the California’s Department of Water Resources (“DWR”) under Fish and Game Code §5650.1 seeking civil penalties and injunctive relief. That section provides:

“A person who violates Section 5650 is subject to a civil penalty of not more than twenty-five thousand dollars ($25,000) for each violation.”

Sec. 5650 forbids depositing into the waters “[a]ny substance or material deleterious to fish, plant life, mammals, or bird life.”

DWR violated that section, the People contend, by releasing waters from a lake into a dam in 2017 during floods. The theory was that controlled releases would protect the dam from damage.

‘Person’ Defined

Fish and Game Code §67 provides:

“ ‘Person’ means any natural person or any partnership, corporation, limited liability company, trust, or other type of association.”

That does not include a state agency, Justice Jonathan K. Renner declared in yesterday’s opinion which affirms a summary judgment in favor of the state granted by Sacramento Superior Court Judge James E. McFetridge.

Renner pointed to the 2010 opinion by Div. One of the First District Court of Appeal in Watershed Enforcers v. Department of Water Resources. Then-Presiding Justice James Marchiano (now retired) said “that the literal textual meaning” of “person,” as defined by §67, “would seem to exclude state agencies,” adding:

“Obviously, a state agency is not a natural person or any of the types of business organizations listed in section 67. And we cannot overlook the Legislature’s ability to expressly define ‘person’ to include a public entity.”

While Marchiano said that §67 would “seem” to exclude state agencies, Renner declared that it does.

He wrote:

“The fact the Legislature did not expressly include public agencies in sections 67 or 5650.1 demonstrates it did not intend these provisions to apply to state agencies such as DWR.”

Public Policy

The People argued that exempting DWR from §5650.1 contravenes public policy. Renner responded that sovereign immunity applies except where the government has consented to be sued, commenting:

“We cannot find such consent conferred solely for policy reasons.”

Spurning the contention that it would be “absurd” to interpret §67 as excluding government agencies, Renner said:

“It is not absurd that the Legislature exempted state agencies from civil penalties under section 5650.1 even if they are not exempted from liability under every similar statute.”

The People noted that §5650.1’s reference to “person” was only in connection with civil penalties and asserted that even if DWR is not a “person,” injunctive relief would lie.

“Even assuming this distinction means the State consented to suits for injunctive relief arising out of violations of section 5650, the People’s argument is unavailing because, in its motion for summary judgment, DWR argued the People’s request for injunctive relief failed as a matter of law because it was unwarranted and would serve no purpose,” Renner wrote. “DWR demonstrated the request for injunctive relief failed on this basis alone.”

He quoted with approval this observation by the trial judge:

“The facts here are undisputed that the context was a declared emergency from flooding, because of heavy rainfall. DWR had to manage and control, in an emergency, excessive storm waters that threatened the dam. DWR had been accorded the authority to control releases of the water to protect the dam and to reduce downstream damage from floods. That is all that DWR did.”

The case is Oroville Dam Cases, 2023 S.O.S. 3681.


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