COASTSIDE FISHING CLUB v. CALIFORNIA RESOURCES AGENCY

Filed 1/14/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Story continued from Part I .

The Legislature was made aware of the Agencys and DFGs anticipated use of private matching funds to support MLPA implementation and endorsed those efforts. According to the report of the Legislative Analysts Office referred to earlier, the administration provided $500,000 in the 2004-2005 Budget Act for MLPA implementation and specified that the funds were to be used to leverage private resources. The department and the [Agency] subsequently entered into a partnership with a private foundation to assist in the implementation of MLPA. The department indicates a private foundation will provide $2 million for the initial implementation of MLPA. (Legislative Analysts Office, supra, Dept. Fish & Game, p. B-64.)

In the Spring of 2004, the Agency and DFG informed the appropriate Senate and Assembly budget subcommittees that they were negotiating the MOU with the Foundation, which had pledged private matching funds up to $2 million to pay for MLPA implementation, and that in order to take advantage of those funds DFG needed an appropriation of $500,000. (Agenda, Assem. Com. on Budget, Subcom. No. 3 (April 21, 2004), p. 6.) In assessing whether such an appropriation would have any other impact on the general fund, Assembly budget committee staff concluded that [p]otentially [there would be] none if special funds can once again be utilized. (Ibid.) Senate staff also recommended the requested appropriation, advising the Senate budget subcommittee that budget bill language should state clearly that these funds shall be available to match private funds. (Agenda, Sen. Com. on Budget and Fiscal Review, Subcom. No. 2 (May 19, 2004), p. 35.) In accordance with the foregoing recommendations, the 2004 budget bill appropriated the $500,000 sought by the Agency and DFG to match private funds for expenditure for activities in support of the protection and management of marine resources, including ecological and socioeconomic studies and data compilation pursuant to the [MLPA], and research, monitoring, and planning efforts necessary to meet the goals of the Marine Life Protection Program. (Stats. 2004, ch. 208, Budget Item 3600-001-0647, p. 1299.) Respondents signed the MOU on August 27, 2004, about a month after the Governor signed the Budget Act for that year.

In the California Ocean Resources Stewardship Act of 2000 (Pub. Res. Code,  36970-36973), which became law shortly after the MLPA was enacted, the Legislature noted that state agencies like DFG that have ocean and coastal management responsibilities often lack basic information on which to base decisions, and that the existing means for coordinating agency efforts need to be improved. (Pub. Res. Code,  36971, subd. (e).) That act also stated that [a]pproximately one hundred million dollars ($100,000,000) in current, recent, or planned marine science projects funded by the federal government, foundations, the University of California and California State University systems, and private institutions could be of great benefit to the states coastal and ocean resource management agencies. (Pub. Res. Code,  36971, subd. (f), italics added.) Aware of the importance of such assistance, the Legislature declared it the policy of the state to encourage the contribution of nongovernmental resources to supplement state resources devoted to ocean resource management. (Pub. Res. Code,  36972, subd. (b).) The need for such supplemental funds is clear from the MLPA itself, because it requires the Commission to implement the California Marine Life Protection Program with regulations based on the final master plan on or before December 1, 2005 only to the extent funds are [then] available. ( 2859, subd. (b).) Finally, when it enacted the Marine Managed Areas Improvement Act (Pub. Res. Code,  36601-36700), which is statutorily coordinated with the MLPA ( 1591, subd. (a)), the Legislature explicitly endorsed the use of public/private partnerships, such as the MOU, to provide access to general information and data about ocean and coastal resources within Californias [Marine Managed Areas]. (Pub. Res. Code,  36601, subd. (a)(11).)^[1]Indeed, the Legislature has provided that public-private partnerships, wherever practicable, shall be the primary means of achieving the objectives of the [California Wetlands Preservation Act] (Pub. Res. Code,  5811, subd. (c)), and has authorized DFG to accept contributions to the Coastal Wetlands Fund . . . [from, among others] private individuals and organizations [and] nonprofit organizations . . . . (Pub. Res. Code,  5818.2, subd. (c).)

In 2004, during the session in which it appropriated $500,000 to provide the matching funds DFG needed to leverage private resources for MLPA implementation, the Legislature enacted the California Ocean Protection Act. (Pub. Res. Code,  35500 et seq.) The purpose of that act, which relates to the MLPA, is to integrate and coordinate the states laws and institutions responsible for protecting and conserving ocean resources, including coastal waters and ocean ecosystems. (Id.,  35515.) Significantly, one of the objectives of the measure is to [u]se Californias private and charitable resources more effectively in developing ocean protection and conservation strategies. (Id.,  35515, subd. (d).)

The foregoing events and statutes may appropriately be taken into consideration in ascertaining the intent of the Legislature in enacting subdivision (b)(1) of section 2855. As we stated in Steilberg v. Lackner (1977) 69 Cal.App.3d 780, in ascertaining legislative intent not clearly expressed, courts should take into account such matters as the object in view, the evils to be remedied, the history of the times, [and] legislation upon the same subject, public policy and contemporaneous construction. (Id. at p. 785, citing Alford v. Pierno (1972) 27 Cal.App.3d 682, 688; Estate of Jacobs (1943) 61 Cal.App.2d 152, 155.) The fact that the Legislature, which knew funds it provided in the Budget Act were to be used to obtain private matching funds permitting implementation of the MLPA pursuant to an MOU with a private foundation, did not then think it necessary to explicitly indicate that such a contract was legislatively authorized suggests a legislative belief that the MLPA already provided the necessary authorization. The Legislature knew the costs of the elaborate planning process DFG and the master plan team were directed to carry out could not be paid for with the public funds it had provided. For that reason, and because preparation of the draft master plan and convening of the master plan team are the referents of the provisions of subdivision (b)(1) of section 2855 permitting contracts with private parties, the Legislature apparently concluded that DFG was authorized by that statute to enter into the MOU. In any case, the Legislatures repeated declarations, both before and after enactment of the MLPA, regarding the increasing inability of DFGs user-based funding system to support its growing responsibilities to protect marine resources, such as those imposed by the MLPA, and the need for DFG to identify and propose new alternative sources of revenue to fund those responsibilities ( 710.7, subd. (c), 710, 710.5), render it difficult if not impossible to think the Legislature intended to exclude from the contracts authorized by subdivision (b)(1) of section 2855 those providing the supplemental private funds needed to enable DFG to prepare the draft master plan or convene the master plan team. In effect, the MOU represents a cooperative effort with a conservation organization to identify and propose new alternative sources of revenue to fund [DFGs] necessary marine conservation, restoration, and resources management, and protection responsibilities, as directed by section 710.7, subdivision (c). Because the Foundation unquestionably possesses expertise relevant to the type of financial or philanthropic assistance it provided under the MOU, it is a party with whom DFG is authorized by subdivision (b)(1) of section 2855 to enter into contract.

Appellants argue that when the Legislature intends to authorize the solicitation and use of private funds to achieve public purposes it does not do so by implication but employs clear, directive language. As an example, appellants point to Street and Highways Code section 143, subdivision (b)(1), which authorizes the Department of Transportation to solicit proposals, accept unsolicited proposals, negotiate, and enter into comprehensive development lease agreements with . . . private entities, or consortia thereof, for transportation projects. (See Professional Engineers v. Department of Transportation (1993) 13 Cal.App.4th 585, 593 [describing this statute as authorizing a new experimental program enlisting private financing, design, construction and operation of transportation facilities to solve state transportation needs that cannot be met with available public revenue].) It is, of course, always preferable for the Legislature to speak clearly and avoid ambiguity, but this certainly does not mean that when it does not do so a court cannot ascertain legislative intent by going beyond the language and examining the legislative history of the statute and, in this case more significantly, the wider historical circumstances of its enactment. (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387.) The historical factors we have described satisfactorily demonstrate that, facially ambiguous as the language of subdivision (b)(1) of section 2855 may be, the contracts authorized by that statute include those to obtain private resources that, given the dearth of available public funds, were necessary to enable DFG to prepare a master plan and convene a master plan team to assist in those statutorily mandated efforts.

We are also mindful that [l]aws providing for the conservation of natural resources are of great remedial and public importance and thus should be construed liberally (San Bernadino Valley Audobon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 601) so as to promote the general object sought to be accomplished (Alford v. Pierno, supra, 27 Cal.App.3d at p. 688). Because the narrow interpretation of subdivision (b)(1) of section 2855 urged by appellants would obstruct the purpose of the MLPA, we cannot accept it unless, as appellants maintain, the only competing interpretation would unconstitutionally delegate a legislative power to an executive branch agency, because [a] statute should be construed whenever possible so as to preserve its constitutionality. [Citations.] (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387.) That is not, however, the case.

C.

The trial courts determination that the resources provided by the Foundation under the MOU are not monies drawn on the state treasury and therefore not an appropriation within the meaning of article XVI, section 7, of the California Constitution was unquestionably correct. However, the theory that the power to solicit and use private funds for a public purpose constitutes an appropriation within the meaning of the Constitution is not crucial to appellants separation of powers claim. As we understand that claim, it rests on the broader premise that he who pays the piper invariably calls the tune. That is, even if the funds provided by the Foundation pursuant to the MOU are not an appropriation in the constitutional sense, permitting an executive branch agency to confer on certain private intereststhose able and willing to commit private resources to the implementation of a publicly-underfunded statutory scheme in which they are self-interestedwould provide certain private parties a degree of power and authority enabling them to subordinate legislatively-defined public interests to their private interests. Thus, the complaint and writ petition assert that [p]rivate funding arrangements like that contained in the MOU provide the California [L]egislature with off the books funding for a myriad of California laws. If private funding such as that provided by the MOU is sanctioned, the [L]egislature 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.

To the extent that the foregoing statements suggest it is bad policy for the Legislature to refuse to appropriate public funds necessary to carry out its mandates and instead authorize the executive agencies subject to those mandates to seek and employ private funds for that purpose, we express no opinion. In reviewing statutes enacted by the Legislature, courts  may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function.  (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 25, quoting Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53.) We therefore confine our analysis to what we believe is the essence of appellants constitutional claim: that construing subdivision (b)(1) of section 2855 as granting DFG authority to enter into a contract for the purpose of obtaining private funds to defray the cost of implementing the MLPA would violate [t]he nondelegation doctrine [that] is rooted in the principle of separation of powers that underlies our tripartite system of Government. (Mistretta v. United States (1989) 488 U.S. 361, 371.)

In assessing this claim we must keep in mind that the primary purpose of the separation of powers doctrine is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government. (Parker v. Riley (1941) 18 Cal.2d 83, 89.) The doctrine has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another. (Id. at p. 90.) The separation of powers doctrine recognizes that the three branches of government are interdependent, and it permits actions of one branch that may significantly affect those of another branch. [Citation.] (CarmelValley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 298.) The doctrine  is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch. [Citation.] (Ibid.) (Manduley v. Superior Court (2002) 27 Cal.4th 537, 557.) Moreover, the case law demonstrates that, as [t]ime has blurred the purity of division of governmental functions (Imperial Irrigation Dist. v. State Wat. Resources Control Bd. (1990) 225 Cal.App.3d 548, 565), the rule against delegation of legislative power has yielded to the growing necessity for delegation to boards and officers of a large measure of discretionary power that is ordinarily considered legislative in character. (7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law,  166, p. 299.) Thus federal and state courts have countenanced delegations of an extraordinarily broad array of powers, not only to governmental regulatory agencies (see, e.g., Mistretta v. United States, supra, 488 U.S. 361; Touby v. United States (1991) 500 U.S. 160; Lichter v. United States (1948) 334 U.S. 742; United States v. Grimaud (1911) 220 U.S. 506; Duskin v. State Board of Dry Cleaners (1962) 58 Cal.2d 155; Wotton v. Bush (1953) 41 Cal.2d 460; Bank of Italy v. Johnson (1926) 200 Cal. 1), but as well to private groups^[2](see Jaffe, Lawmaking By Private Groups (1937) 51 Harv. L.Rev. 201; Abramson, A Fifth Branch of Government: the Private Regulators and Their Constitutionality (1989) 16 Hastings Constl. L.Q. 165).^[3]

The federal test of the validity of a statutory delegation is whether the statute sufficiently marks the field within which the Administrator is to act so that it may be known [by a reviewing court] whether he has kept within it in compliance with the legislative will. (Yakus v. United States (1944) 321 U.S. 414, 425-426; accord, Mistretta v. United States, supra, 488 U.S. 361; Hampton & Co. v. United States (1928) 276 U.S. 394.) Our courts apply a similar test. Where the Legislature, expressly or by implication, lays down a sufficiently clear test or standard, the discretion to carry out the legislative purposes by rules and regulations may be given to a board or officer. (7 Witkin, Summary of Cal. Law, supra, Constitutional Law,  167, p. 301.) The doctrine prohibiting delegation of legislative power was thoroughly explicated by Justice Tobriner in Kugler v. Yocum, supra, 69 Cal.2d 371. Noting that the doctrine is well established in California, he emphasized that its scope has been limited by several equally well established principles. For example, legislative power may properly be delegated if channeled by a sufficient standard. It is well settled that the legislature may commit to an administrative officer the power to determine whether the facts of a particular case bring it within a rule or standard previously established by the [L]egislature . . . . [Citations.] [] A related doctrine holds: The essentials of the legislative function are the determination and formulation of the legislative policy. Generally speaking, attainment of the ends, including how and by what means they are to be achieved, may constitutionally be left in the hands of others. The Legislature may, after declaring a policy and fixing a primary standard, confer upon executive or administrative officers the power to fill up the details by prescribing administrative rules and regulations to promote the purposes of the legislation and to carry it into effect . . . . [Citation.] Similarly, the cases establish that [w]hile the legislative body cannot delegate its power to make a law, it can make law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. [Citation.] (Id. at pp. 375-376.) [T]he purpose of the doctrine that legislative power cannot be delegated is to assure that truly fundamental issues [will] be resolved by the Legislature and that a grant of authority [is] . . . accompanied by safeguards adequate to prevent its abuse. [Citations.] (Id. at p. 376, italics added.) Stated differently, the courts are less concerned with avoiding a mixture of three or more kinds of power in the same agency [than with] avoiding or minimizing unchecked power. (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 361-362.)

Appellants claim that the MLPA lacks the necessary safeguards rests on cases involving the delegation of rule-making authority. Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1 (Bayside Timber), the case appellants rely upon most heavily, is illustrative.

The issue in Bayside Timber was whether the State Forest Practice Act impermissibly delegated legislative power to private timber owners and operators. After explaining the composition of the State Board of Forestry and district forest practice committees created by the Forest Practice Act (Bayside Timber, supra, 20 Cal.App.3d at p. 9), whose memberships consisted almost entirely of private timber owners or operators, and the rule-making powers of such bodies, the court summarized the relevant portions of the Act as follows: The content of the rules under which private logging operations are conducted is decreed exclusively by persons pecuniarily interested in the timber industry, i.e., timber owners and operators. The ultimate basis of this exclusive control rests in the hands of the private timber ownership, two-thirds of which must agree before any proposed rule may be adopted. Ordinarily such rules are formulated by the four timber owners or operators of the forest practice committee, but they may nevertheless be drafted by the districts private timber ownership. The rules are submitted to the State Board of Forestry which may approve or disapprove them. It is noteworthy that the [B]oard is powerless itself to promulgate any forest practice rule. It may only approve or disapprove those which are submitted. [] It follows that without agreement of the private timber ownership, no power in California has authority to impose rules to insure reasonable environmental and public protection from logging abuses. (Id. at p. 10.)

The Bayside Timber court pointed out that the legislative delegation at issue not only gave timber owners and operators the exclusive power to formulate forest practice rules which, when adopted, have the force and effect of law, but laid down no guides or standards to prevent abuse of the discretion conferred. (Bayside Timber, supra, 20 Cal.App.4th at p. 10) The combination of forest practice committees and timber ownership, in their absolute discretion, are free to formulate, or not formulate, rules tending to prevent erosion, to lessen flooding, to protect wildlife, to preserve natural beauty, or otherwise to serve the public interest. As such rules are formulated, whether they be in the public interest or timber industry interest, or otherwise reasonable or effective, is likewise left to the uncontrolled discretion of the committee and the timber ownership. (Id. at pp. 10-11, fn. omitted, italics added.) The court concluded that the Forest Practice Act violated the state and federal Constitutions because it unlawfully and without proper, or any, standards delegates legislative power, and otherwise denies due process of law to the interested and affected public. (Id. at p. 14; accord, State Board v. Thrift-D-Lux Cleaners (1953) 40 Cal.2d 436, 448; Allen v. California Board of Barber Examiners (1972) 25 Cal.App.3d 1014, 1017; Peoples etc. L. Assn. v. Franchise Tax Bd. (1952) 110 Cal.App.2d 696, 700; see also Carter v. Carter Coal Co. (1936) 298 U.S. 238, 311.)

The difference between the absolute delegations of rulemaking authority invalidated in Bayside Timber, supra, 20 Cal.App.3d 1, 10, and the similar cases just cited, and the delegation challenged in this case, could hardly be sharper.

To begin with, the MLPA does not delegate power to adopt rules even to the Agency or DFG, let alone to any entity with whom DFG may contract. As earlier noted, the power to adopt a Marine Life Protection Program and a final master plan that guides the adoption and implementation of that Program is given by the MLPA solely to the Commission, an independent constitutional body consisting of five members appointed by the Governor and approved by the Senate, to which [t]he Legislature may delegate . . . such powers relating to the protection and propagation of fish and game as the Legislature sees fit. (Cal. Const., art. IV,  20.) The Commission is not required to adopt the draft master plan proposed to it by DFG, and may accept the proposed plan, modify it, or reject it and adopt a completely different plan.^[4]

It is also worth emphasizing that, while it is a private entity, the Foundation does not have a pecuniary interest in the manner in which the MLPA is implemented and enforced; and foundations are among the educational and other private institutions that have helped fund marine science projects in California like those mandated by the MLPA. (Pub. Res. Code,  36971, subd. (f); see also Pub. Res. Code,  5818.2, subd. (c).) The trial courts ruling that the MOU was authorized by subdivision (b)(1) of section 2855 therefore does not imply that the statute authorizes DFG to contract with a party having such a self-interest and, despite some of their rhetoric, appellants do not challenge the ruling on the ground that the Foundation has a disqualifying special interest of any sort or lacks expertise relevant to the provision of philanthropic assistance. Because appellants claims focus entirely on the nature of the assistance DFG is statutorily authorized to obtain by means of a contract, this case does not require us to inquire into the nature or interests of the service provider. Nothing in this opinion should be thought to bear upon whether an executive agency may be authorized legislatively to enter into a contract with or receive financial contributions from a private party to assist in the implementation of a statute that might apply to that party or effect its pecuniary interests in any way.

With the foregoing considerations in mind, we move to the central question whether, if the trial courts interpretation of subdivision (b)(1) of section 2855 were accepted, the MLPA would impermissibly delegate to DFG or those with whom it contracts the power to resolve truly fundamental issues constitutionally committed to the Legislature, because the MLPA fails to establish effective mechanisms, or safeguards, containing the discretion of DFG or its contractors, enabling them to distort or obstruct enforcement of the Legislatures policy decisions. (Kugler v. Yocum, supra, 69 Cal.2d 371, 376-377.)

As we have seen, the fundamental issue the MLPA addresses is the need to modify the existing collection of MPAs to ensure that they are designed and managed according to clear, conservation-based goals and guidelines that take full advantage of the multiple benefits that can be derived from the establishment of marine life reserves ( 2851, subd. (h)), through promulgation of a comprehensive Marine Life Protection Program. Delegating the power to adopt such a program and an implementing master plan to the Commission ( 2853), the Legislature delegated to DFG the duty to prepare and submit to the Commission a draft master plan guiding adoption and implementation of the Marine Life Protection Program. ( 2855, subds. (a), (b)(1).) We conclude that the delegation to DFG contains safeguards adequately insuring that the draft master plan it prepares or causes to be prepared conforms to the legislative will.

First, by specifying the six goals of the Marine Life Protection Program and the five elements the program must contain ( 2853, subds. (b), (c)), the Legislature has elaborately cabined the substance and scope of the master plan.^[5]DFGs authority to prepare the draft master plan and convene the required master plan team, and to obtain assistance in those efforts, is also statutorily constrained. DFG and the master plan team are mandated to use the best readily available scientific information and the draft plan must use and build upon the findings of the Sea Grant survey of protected areas in California waters, entitled Californias Marine Protected Areas, the report of the State Interagency Marine Managed Areas Workgroup, the Department of Parks and Recreations planning information and documents regarding existing and potential underwater parks and reserves, maps and other information from the departments marine nearshore ecosystem mapping project, and other relevant planning and scientific materials. ( 2856, subd. (a)(1).)

The 11 components of the master plan are not only clearly identified but extraordinarily specific. ( 2856, subd. (a)(2)(A)-(K).) To take just several of many possible examples, the MLPA not only requires the master plan to include [r]ecommendations for the extent and types of habitat that should be represented in the MPA system and marine life reserves, but specifies that habitat types described on maps must include rocky reefs, intertidal zones, sandy or soft ocean bottoms, underwater pinnacles, sea mounts, kelp forests, submarine canyons, and seagrass beds. ( 2856, subd. (a)(2)(A).) The master plan must not only identify species or groups of species likely to benefit from MPAs, and the extent of their marine habitat, with special attention to marine breeding and spawning grounds, but also provide relevant information pertaining to oceanographic features, such as current patterns, upwelling zones, and other factors that significantly affect the distribution of those fish or shellfish and their larvae. ( 2856, subd. (a)(2)(B).) Nor is it enough under the MLPA for the master plan to simply recommend a network of MPAs. Pursuant to section 2856, subdivisions (a)(2)(D) and (F), the MPA siting alternatives recommended by the plan must be capable of achieving the statutorily-specified goals of the Marine Life Protection Program ( 2853), and conform to five siting guidelines that are also statutorily specified ( 2857, subd. (c)). The master plan must also include a [a] simplified classification system that is also consistent with specified goals and guidelines. ( 2856, subd. (a)(2)(E).)

The impartiality and integrity of the draft master plan DFG or a contractor prepares, and the transparency of the preparation process, is insured not only by the requirement that numerous siting workshops open to all interested persons be convened in each biogeographical region to review alternatives for MPA networks and to provide advice on a preferred siting alternative ( 2857, subd. (a)), but as well by the requirement of a process for external peer review of the scientific basis for the master plan ( 2858, see also  7062).^[6]Before submitting a proposed final master plan to the Commission, DFG must make the draft master plan available for pubic review and conduct not less than three public meetings. ( 2859, subd. (b).)

DFGs discretion to select the membership of the master plan team, and the derivative discretion of any contractor with whom DFG may contract for assistance in convening the team, is also severely limited. To begin with, members of the team are required to have expertise in marine life protection and shall be knowledgeable about the use of protected areas as a marine ecosystem management tool. ( 2855, subd. (b)(2).) Members shall also be familiar with underwater ecosystems found in California waters, with the biology and habitat requirements of major species groups in the states marine waters, and with water quality and related issues. (Ibid.) The MLPA specifies that the team shall be composed of . . . [] [A] [s]taff from [DFG], the Department of Parks and Recreation, and the State Water Resources Control Board, to be designated by each those departments, [] [B] [f]ive to seven members who shall be scientists, one of whom may have expertise in the economics and culture of California coastal communities [and] [] [C] [o]ne member, appointed from a list prepared by Sea Grant marine advisers,^[[7]] who shall have direct expertise with ocean habitat and sea life in California marine waters. ( 2855, subd. (b)(3)(A), (B), (C).)

The MLPA also specifiesother participants who must be involved in the planning process. The master plan must be prepared with the advice, assistance and involvement of participants in the various fisheries and their representatives, marine conservationists, marine scientists, and other interested persons. In preparing the master plan, [DFG] shall [also] confer, to the extent feasible, with the commission, the Pacific Fishery Management Council, the National Marine Fisheries Service, the United States Navy, the United States Geological Surveys national biological survey, staff from national marine sanctuaries off California, Sea Grant researchers, marine advisers, and national parks personnel. ( 2855, subd. (b)(4).) In carrying out its responsibilities, DFG may engage other experts ( 2855, subd. (b)(5)), and shall take into account relevant information from local communities, and shall solicit comment and advice for the master plan from [other] interested parties on a nonexclusive list of specified issues. ( 2855, subd. (c).)

The foregoing requirements of the MLPA demonstrate that the determination and formulation of legislative policy is not left in the hands of DFG, and certainly not in those of any private party with whom it may contract for assistance. Judicially enforceable standards identify the substantive issues required to be addressed in the master plan, insure that those who prepare the draft master plan are scientifically qualified to do so, specify the transparent manner in which the plan is prepared, the persons and interest groups that must be invited to participate in the planning process, the experts who must be consulted, and the objectivity and quality of the scientific information relied upon. These many specifications significantly limit the discretionary authority of DFG and those with whom it contracts for assistance (including financial assistance) to produce a draft master plan that departs from the goals of the MLPA. The Legislature effectively resolve[d] the truly fundamental issues (Kugler v. Yocum, supra, 69 Cal.2d at p. 376); it has not delegated that function to others nor failed to establish effective mechanism[s] to assure the proper implementation of its policy decisions. (Id. at pp. 376-377.)

The trial court correctly determined that the MOU was authorized by subdivision (b)(1) of section 2855, and the result of that ruling does not compromise the doctrine of separation of powers and therefore does not violate article III, section 3 of the California Constitution.

DISPOSITION

The judgment of the trial court dismissing the complaint for declaratory and injunctive relief and petition for writ of mandate with prejudice is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Richman, J.

Trial Court: San Francisco Superior Court

Trial Judge: Hon. Ronald Quidachay

Attorneys for Appellants: Morgan Lewis & Bockius LLP

Thomas M. Peterson

Benjamin P. Smith

Snyder, Miller & Orton LLP

James L. Miller

Jennifer L. Shoda

Attorneys for Respondents

California Resources Agency

And Department of Fish and Game: Edmund G. Brown Jr., Attorney General

Mary E. Hackenbracht, Sr. Asst. A.G.

John Davidson, Supervising Deputy A.G.

William Jenkins, Deputy Attorney General

Attorneys for Respondent

Resources Legacy Fund Foundation: Riegels Campos & Kenyon LLP

Charity Kenyon

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^[1]As we understand the term, a public-private partnership is a project in which there is cooperation between the public and private sectors in one or more areas of the design, development, construction, operation, ownership or financing of infrastructure assets, or in the provision of services. Compared to traditional procurement methods, the private sector assumes a greater role in the planning, financing, design, construction, operation and maintenance of public facilities or service delivery. (Cal. Debt & Investment Advisory Com., Office of the Cal. Treasurer, ISSUE BRIEF: Privitization vs. Public Private Partnerships: A Comparative Analysis (August 2007) at p. 4, fns. omitted, italics added, available at www.treasurer.ca.gov/cdiac/publications/privatization.pdf; see also National Council for Public-Private Partnerships, How Partnerships Work (April 27, 2007), www.ncppp.org/howpart/index.shtml.) Such partnerships, including those designed to provide various forms of financial assistance, have been authorized, encouraged or mandated by our Legislature in connection with such diverse purposes as the provision of educational and placement services for foster children and other youth (Educ. Code,  48853.5, subd. (d)(6); Welf. & Inst. Code,  16124, subd. (j), 16605, subds. (a), (b), 18986.2, subd. (d), 18986.11, subd. (e)); redesign and reformation of high schools (Educ. Code,  52070, subd. (c)); construction of educational facilities (Educ. Code,  81004, subds. (a), (b), (c)); provision of architectural and engineering services for certain infrastructure projects (Gov. Code,  4529.10, Initiative Measure, Prop. 35 (2000),  2(b)); assessment of technologies available for improved emergency alerts (Gov. Code,  8593.6); satisfaction of local housing needs (Health & Saf. Code,  50843, subd. (d)(1), 50843.5, subds. (a), (b)); protection, acquisition, restoration, preservation, and management of wetlands (Pub. Res. Code,  5811, subd. (c), 5814, subd. (a)(3)); stewardship of agricultural and grazing land (Pub. Res. Code,  10282, subds. (a), (e)(5)); and the improvement of water supply, quality, and infrastructure (Wat. Code,  79205.10, subd. (c).)

^[2]Suggested explanations for the amount and scope of legislative delegation that takes place include not just the need to leave technical questions to experts, which most obviously explains the delegation of authority by the MLPA, but also politicians desire to duck blame for unpopular choices or to create new opportunities for constituency service, the inability of multimember legislatures to reach stable consensus, and the impossibility (or excessive cost) of anticipating and resolving all implementation issues in advance. (Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts (2006) 119 Harv. L.Rev. 1036, 1036-1037, fns. omitted.)

^[3]The feeling that the doctrine prohibiting delegation of legislative power has been, as Justice Marshall said, virtually abandoned by the [Supreme] Court for all practical purposes (FPC v. New England Power Co. (1974) 415 U.S. 345, 352-353 (conc. opn. of Marshall, J.) and is now moribund (National Cable Television Assn. v. U.S. (1974) 415 U.S. 336, 353 (dis. opn. of Marshall, J.), accounts for the fact that judicial applications of the doctrine have been much criticized. (Kugler v. Yocum (1968) 69 Cal.2d 371, 375; see, e.g., Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993); 1 Davis, Administrative LawTreatise (2d ed. 1978) at p. 193 [[t]he case law has not crystallized any consistent principles].) In the Supreme Court, the nondelegation doctrine is now largely limited to statutory interpretation (Mistretta v. United States, supra, 488 U.S. 361, 373, fn. 7), the sole purpose for which appellants raise it in this case.

^[4]The fact that the delegation to DFG of authority to prepare the draft master plan and convene a master plan team, or contract out those responsibilities, is not a delegation of rule-making authority does not, however, end the matter, because a delegation also violates the nondelegation doctrine where it empowers such a party to initiate . . . rules that acquired the force of law. (King v. Meese (1987) 43 Cal.3d 1217, 1234, italics added.) The MLPA gives DFG or a party with whom it contracts the power to prepare the draft master plan that guides the adoption and implementation of the Marine Life Protection Program adopted pursuant to [the MLPA]. ( 2855, subd. (a).) Due to some uncertainty as to the meaning of the word initiate as used in King v. Meese, we shall assume, without deciding, that the delegation challenged in this case is an initiatory power that can properly be delegated only with the requisite safeguards.

^[5]The six goals are: (1) To protect the natural diversity and abundance of marine life, and the structure, function, and integrity of marine ecosystems. [] (2) To help sustain, conserve, and protect marine life populations, including those of economic value, and rebuild those that are depleted. [] (3) To improve recreational, educational, and study opportunities provided by marine ecosystems that are subject to minimal human disturbance, and to manage these uses in a manner consistent with protecting biodiversity. [] (4) To protect marine natural heritage, including protection of representative and unique marine life habitats in California waters for their intrinsic value. [] (5) To ensure that Californias MPAs have clearly defined objectives, effective management measures, and adequate enforcement, and are based on sound scientific guidelines. [] (6) To ensure that the states MPAs are designed and managed, to the extent possible, as a network. ( 2853, subd. (b)(1)-(6).)

The five elements the program must include are: (1) An improved marine life reserve component consistent with the guidelines in subdivision (c) of Section 2857. [] (2) Specific identified objectives, and management and enforcement measures, for all MPAs in the system. [] (3) Provisions for monitoring, research, and evaluation at selected sites to facilitate adaptive management of MPAs and ensure that the system meets the goals stated in this chapter. [] (4) Provisions for educating the public about MPAs, and for administering and enforcing MPAs in a manner that encourages public participation. [] (5) A process for the establishment, modification, or abolishment of existing MPAs or new MPAs established pursuant to this program, that involves interested parties, consistent with paragraph (7) of subdivision (b) of Section 7050, and that facilitates the designation of MPAs consistent with the master plan adopted pursuant to Section 2855. ( 2853, subd. (c)(1)-(5).)

^[6]The transparency required by the MLPA is also required by the MOU with respect to the work of the Task Force and Science Team it creates. The MOU provides that those bodies will convene in publicly-noticed and open meetings whenever a majority of the members is scheduled to be present and they are also obliged to provide regular opportunities for stakeholder and public input to their decision-making, and to make available all final work products pursuant to [the] MOU. The funding description provided by the Foundation is also required to be made available to the public.

^[7]Sea Grant is a nationwide network administered through the National Oceanic and Atmospheric Administration (NOAA), consisting of 30 university-based programs that work with coastal communities.