Filed 4/15/13
CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



COASTSIDE FISHING CLUB,                         D061121

        Plaintiff and Appellant,

        v.                                      (Super. Ct. No. 37-2011-00084611-
                                                 CU-WM-CTL)
CALIFORNIA FISH AND GAME
COMMISSION,

        Defendant and Respondent.


        APPEAL from an order of the Superior Court of San Diego County, Ronald S.

Prager, Judge. Affirmed.



        Allen Matkins Leck Gamble Mallory & Natsis, David Duval Cooke, Marvin Earl

Garrett, Kathryn Diane Horning; Law Office of Marc Mager Gorelnik and Marc Mager

Gorelnik for Appellant.

        Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney

General, Carol A. Squire, Deputy Attorney General for Respondent.
       Plaintiff Coastside Fishing Club (Coastside) appeals an order denying its petition

for a writ of mandate directing the California Fish and Game Commission (the

Commission) to vacate its regulations that create Marine Protected Areas (MPAs) and

Marine Managed Areas (MMAs) in state waters of an area of the Pacific Ocean known as

the North Central Coast study region. Coastside contends the trial court erred in denying

its petition on the ground it failed to exhaust its administrative remedies and in ruling, on

the merits, that the Commission acted within its statutory authority in adopting the

regulations for the North Central Coast region (NCC regulations). We conclude the court

erred in applying the doctrine of exhaustion of administrative remedies, but correctly

ruled that the Commission acted within its statutory authority in adopting the NCC

regulations. Accordingly, we affirm.

                              STATUTORY BACKGROUND

       Marine Life Protection Act

       In 1999 the Legislature enacted the Marine Life Protection Act (MLPA). (Fish &

G. Code, § 2850 et seq.) The Legislature declared that "California's marine protected

areas (MPAs) were established on a piecemeal basis rather than according to a coherent

plan and sound scientific guidelines.[1] Many of these MPAs lack clearly defined



1       Fish and Game Code section 2852, subdivision (c), defines "marine protected
area" as follows: " 'Marine protected area' (MPA) means a named, discrete geographic
marine or estuarine area seaward of the mean high tide line or the mouth of a coastal
river, including any area of intertidal or subtidal terrain, together with its overlying water
and associated flora and fauna that has been designated by law, administrative action, or
voter initiative to protect or conserve marine life and habitat. An MPA includes marine
life reserves and other areas that allow for specified commercial and recreational
                                              2
purposes, effective management measures and enforcement. As a result, the array of

MPAs creates the illusion of protection while falling far short of its potential to protect

and conserve living marine life and habitat." (Fish & G. Code, § 2851, subd. (a).) Thus,

the main objective of the MLPA was 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." (Fish & G. Code, § 2851, subd. (h).)

       The MLPA requires the Commission to adopt a "Marine Life Protection Program"

with specified goals designed to protect marine life (Fish & G. Code, § 2853), and to

"adopt a master plan that guides the adoption and implementation of the Marine Life

Protection Program . . . and decisions regarding the siting of new MPAs and major

modifications of existing MPAs." (Fish & G. Code, § 2855, subd. (a).) The MLPA

directs the Department of Fish and Game2 to prepare, or contract for the preparation of,

the master plan and to convene "a master plan team to advise and assist in the preparation



activities, including fishing for certain species but not others, fishing with certain
practices but not others, and kelp harvesting, provided that these activities are consistent
with the objectives of the area and the goals and guidelines of this chapter. MPAs are
primarily intended to protect or conserve marine life and habitat, and are therefore a
subset of marine managed areas (MMAs), which are broader groups of named, discrete
geographic areas along the coast that protect, conserve, or otherwise manage a variety of
resources and uses, including living marine resources, cultural and historical resources,
and recreational opportunities."

2       Effective January 1, 2013, the Department of Fish and Game was renamed the
Department of Fish and Wildlife. (Fish & G. Code, § 37.) For convenience, we will
refer to the agency by its original name used in the proceedings below, the Department of
Fish and Game (DFG).
                                              3
of the master plan, or hire a contractor with relevant expertise to assist in convening such

a team." (Fish & G. Code, § 2855, subd. (b)(1).) The master plan team members must

"have expertise in marine life protection and . . . be knowledgeable about the use of

protected areas as a marine ecosystem management tool." (Fish & G. Code, § 2855,

subd. (b)(2).) The team is to include staff from the DFG, the Department of Parks and

Recreation, and the State Water Resources Control Board. (Fish & G. Code, § 2855,

subd. (b)(3)(A).) Five to seven team members must be scientists (Fish & G. Code,

§ 2855, subd. (b)(3)(B)), and the DFG is authorized to "engage other experts to contribute

to the master plan, including scientists, geographic information system (GIS) experts, and

commercial and recreational fishermen, divers, and other individuals knowledgeable

about the state's underwater ecosystems, the history of fishing effort or MPA

management, or other relevant subjects." (Fish & G. Code, § 2855, subd. (b)(5).)

       One of the main components of the master plan is "[r]ecommended alternative

networks of MPAs, including marine life reserves in each biogeographical region that are

capable of achieving the goals [of the MLPA]." (Fish & G. Code, § 2856, subd.

(a)(2)(D).) The DFG is required to "convene, in each biogeographical region and to the

extent practicable near major working harbors, siting workshops, composed of interested

parties, to review the alternatives for MPA networks and to provide advice on a preferred

siting alternative." (Fish & G. Code, § 2857, subd. (a).) Following public review, at least

three public meetings, and appropriate modifications to the draft master plan, the DFG

was required to submit, on or before April 1, 2005, a proposed final master plan to the

Commission. (Fish & G. Code, § 2859, subd. (b).) However, the DFG was unable to

                                             4
meet that statutory time limit. (See Coastside Fishing Club v. California Resources

Agency (2008) 158 Cal.App.4th 1183, 1196-1197 (Coastside).) Fish and Game Code

section 2861, subdivision (b), provides that nothing in the MLPA "restricts any existing

authority of the [DFG] or the [C]ommission to make changes to improve the management

or design of existing MPAs or designate new MPAs prior to the completion of the master

plan."3

       Marine Managed Areas Improvement Act

       In 2000, one year after it enacted the MLPA, the Legislature passed the Marine

Managed Areas Improvement Act (Pub. Resources Code4, §§ 36600–36900)

(Improvement Act). An MMA is statutorily defined as "a named, discrete geographic

marine or estuarine area along the California coast designated by law or administrative

action, and intended to protect, conserve, or otherwise manage a variety of resources and

their uses. The resources and uses may include, but are not limited to, living marine

resources and their habitats, scenic views, water quality, recreational values, and cultural

or geological resources." (§ 36602, subd. (d).)5 The Legislature noted that the array of

state MMAs existing at the time it passed the Improvement Act was the "result of over 50

3      The quoted provision was formerly subdivision (c) of Fish and Game Code
section 2861. However, a 2012 amendment deleted former subdivision (b) of the statute
and re-lettered former subdivision (c) as subdivision (b). (Stats. 2012, ch. 728, § 46,
p. 5872.)

4     All subsequent statutory references are to the Public Resources Code unless
otherwise specified.

5      As noted, MPAs are a subset of MMAs. (Fish & G. Code, § 2852, subd. (c).)

                                             5
years of designations through legislative, administrative, and statewide ballot initiative

actions, which [had] led to 18 classifications and subclassifications of these areas."

(§ 36601, subd. (a)(4).)

       A report prepared by a State Interagency Marine Managed Areas Workgroup

indicated that the MMAs had "evolved on a case-by-case basis, without conforming to

any plan for establishing MMAs in the most effective way or in a manner which ensures

that the most representative or unique areas of the ocean and coastal environment are

included." (§ 36601, subd. (a)(5).) The report also stated that California's MMAs did not

comprise an organized system because "the individual sites [were] not designated,

classified, or managed in a systematic manner[,]" and many of the MMAs lacked "clearly

defined purposes, effective management measures, and enforcement." (§ 36601, subd.

(a)(6).) The Legislature found that this array of MMAs created the illusion of a

comprehensive system of management while it actually "[fell] short of its potential to

protect, conserve, and manage natural, cultural, and recreational resources along the

California coast." (§ 36601, subd. (a)(7).) Designation of MMAs and subsequent

adoption of regulations without adequate consideration given to overall classification

objectives had "contributed to fragmented management, poor compliance with

regulations, and a lack of effective enforcement." (§ 36601, subd. (a)(9).)

       Thus, the Legislature's express intent was that "[w]ith the single exception of state

estuaries, . . . the classifications currently available for use in the marine and estuarine

environments of the state shall cease to be used and that a new classification system shall

be established, with a mission, statement of objectives, clearly defined designation

                                               6
guidelines, specific classification goals, and a more scientifically-based process for

designating sites and determining their effectiveness." (§ 36601, subd. (b).) The

Legislature declared that "[t]he mission of the state MMA system is to ensure the long-

term ecological viability and biological productivity of marine and estuarine ecosystems

and to preserve cultural resources in the coastal sea . . . ." (§ 36620.) The Legislature

found and declared a need to redesign California's MMAs to establish and manage a

system using science and clear public policy directives to achieve the objectives of

conservation, education and research, sustainable use of marine resources, and providing

opportunities for public enjoyment of natural and cultural marine and estuarine resources.

(Ibid.) Under the new classification system, there are six MMA classifications: (1) state

marine reserves, (2) state marine parks, (3) state marine conservation areas, (4) state

marine cultural preservation areas, (5) state marine recreational management areas, and

(6) state water quality protection areas. (§§ 36602, subd. (d) & 36700 [defining the six

classifications].) State marine reserves, state marine parks, and state marine conservation

areas are also statutorily designated as MPAs. (§ 36602, subd. (e).)

       The Improvement Act directed the Secretary of the California Resources Agency

(Resources Agency)6 to establish a "State Interagency Coordinating Committee"

(Coordinating Committee), consisting of representatives from various state agencies with

jurisdiction or management interests over MMAs, including the DFG, Department of



6     In 2008 Resources Agency was renamed the Natural Resources Agency. (Gov.
Code, §§ 12800, 12802, 12805; Stats. 2008, ch. 205, §§ 1-2, 4.)

                                             7
Parks and Recreation, California Coastal Commission, State Water Resources Control

Board, and State Lands Commission. (§ 36800.) Section 36800 provides that the

Coordinating Committee "shall review proposals for new or amended MMAs to ensure

that the minimum required information is included in the proposal, to determine those

state agencies that should review the proposal, and to ensure consistency with other such

designations in the state. The committee shall also serve to ensure the proper and timely

routing of site proposals, review any proposed site-specific regulations for consistency

with the state system as a whole, and conduct periodic reviews of the statewide system to

evaluate whether it is meeting the mission and statement of objectives." (Ibid.) The

Coordinating Committee is also responsible for reclassifying any MMA in existence on

January 1, 2002, that has not been reclassified in accordance with the MLPA, with the

directive that the reclassification process "shall occur to the extent feasible in conjunction

and consistent with the MMA master planning process created pursuant to the [MLPA]."

(§ 36750.) The existing MMAs must be reclassified under the classification system

described in section 36700, which defines the Improvement Act's six MMA

classifications noted above.

       The Coordinating Committee and appropriate "managing agencies"7 were directed

to cooperate to develop, on or before January 1, 2002, "[d]esignation guidelines based on



7      The Improvement Act refers to "designating entities" and "managing agencies." A
"designating entity" is "the Fish and Game Commission, State Park and Recreation
Commission, or State Water Resources Control Board, each of which has the authority to
designate specified state marine managed areas." (§ 36602, subd. (b).) A "managing
agency" is either "the Department of Fish and Game or the Department of Parks and
                                              8
the classification goals adopted for the state system of MMAs . . . ." (§ 36850.) The

designation guidelines "shall be used to provide a general sense of requirements for

designating a site in any particular classification, and may include characteristics such as

uniqueness of the area or resource, biological productivity, special habitats, cultural or

recreational values, and human impacts to the area. These designation guidelines shall be

provided on a standard set of instructions for each classification." (Ibid.) The

Coordinating Committee was also directed to establish, on or before January 1, 2002, the

"standard set of instructions for each classification to guide organizations and individuals

in submitting proposals for designating specific sites or networks of sites." (§ 36870.)

Section 36900 provides that "[i]ndividuals or organizations may submit a proposal to

designate an MMA directly through the [Coordinating Committee] or an appropriate

designating entity. Proposals submitted to a designating entity shall be forwarded to the

[Coordination Committee] to initiate the review process."

       Concurrently with the Improvement Act, the Legislature amended Fish and Game

Code sections 1580, and enacted Fish and Game Code sections 1590 and 1591. Fish and

Game Code section 1580 had previously authorized the DFG and the Commission to

establish terrestrial, fresh water, and marine ecological reserves. The Legislature

amended Fish and Game Code section 1580 to exclude marine reserves from the scope of




Recreation, each of which has the authority to manage specified state marine managed
areas." (§ 36602, subd. (b).)

                                              9
that statute,8 and passed Fish and Game Code section 1590, which authorized the

Commission to "designate, delete, or modify state marine recreational management areas

established by the commission for hunting purposes, state marine reserves, and state

marine conservation areas, as delineated in subdivision (a) of Section 36725 of the

[Improvement Act]." (Fish & G. Code, § 1590.)9 Fish and Game Code section 1591

provides that any proposals for MPAs made after January 1, 2002, must follow the

guidelines set forth in the Improvement Act, and that pursuant to section 36750 of the

Improvement Act, all MPAs in existence on that date and not reclassified in accordance




8       Fish and Game Code section 1580 currently provides: ";The Legislature hereby
declares that the policy of the state is to protect threatened or endangered native plants,
wildlife, or aquatic organisms or specialized habitat types, both terrestrial and nonmarine
aquatic, or large heterogeneous natural gene pools for the future use of mankind through
the establishment of ecological reserves. For the purpose of establishing those ecological
reserves, the department, with the approval of the commission, may obtain, accept on
behalf of the state, acquire, or control, by purchase, lease, easement, gift, rental,
memorandum of understanding, or otherwise, and occupy, develop, maintain, use, and
administer land, or land and nonmarine water, or land and nonmarine water rights,
suitable for the purpose of establishing ecological reserves. Any property obtained,
accepted, acquired, or controlled by the department pursuant to this article may be
designated by the commission as an ecological reserve. The commission may adopt
regulations for the occupation, utilization, operation, protection, enhancement,
maintenance, and administration of ecological reserves. The ecological reserves shall not
be classified as wildlife management areas pursuant to Section 1504 and shall be exempt
from Section 1504." (Italics added.) The 2000 amendment also deleted the word
"marine" from the phrase, "large heterogeneous natural marine gene pools" in the former
statute. (See Stats. 1993, ch. 667, § 1 (A.B. 521).)

9       Section 36725, subdivision (a), provides that the Commission "may designate,
delete, or modify state marine recreational management areas established by the
commission for hunting purposes, state marine reserves, and state marine conservation
areas."

                                            10
with the MLPA must be reclassified as a state marine reserve, state marine park, or state

marine conservation area. (Fish & G. Code, § 1591, subd. (a).)

                   FACTUAL AND PROCEDURAL BACKGROUND

       The NCC regulations at issue in this appeal were the result of a "public-private

partnership," the genesis of which is discussed in Coastside, supra, 158 Cal.App.4th

1183. The DFG was unable to meet the statutory time limit for submitting a proposed

final master plan to the Commission under the MLPA due to inadequate funding.

(Coastside, supra, at pp. 1196-1198.) Recognizing the DFG's long history of having

insufficient funding to meet its statutory mandates, the Legislature declared that "[w]hile

revenues have been declining, the [DFG's] responsibilities have increased in order to

protect public trust resources in the face of increasing population and resource

management demands. The [DFG's] revenues have been limited due to a failure to

maximize user fees and inadequate non-fee-related funding. The limited department

revenues have resulted in the inability of the department to effectively provide all of the

programs and activities required under this code and to manage the wildlife resources

held in trust by the department for the people of the state." (Fish & G. Code, § 710.5,

subd. (a).) Thus, the Legislature declared that "[t]o fulfill its mandates, the [DFG] must

secure a significant increase in reliable funding, in addition to user fees." (Fish & G.

Code, § 710.5, subd. (c).) Toward that end, the Legislature declared its intent that the

DFG "shall cooperate with the Legislature, recreational users, conservation organizations,

the commercial fishing industry, and other interested parties to identify and propose new

alternative sources of revenue to fund the department's necessary marine conservation,

                                             11
restoration, and resources management, and protection responsibilities." (Fish & G.

Code, § 710.7, subd. (c).)

       In 2004, after it became clear that the DFG lacked sufficient resources to meet its

statutory deadline to prepare the draft master plan, the Resources Agency, the DFG, and

Resources Legacy Foundation (RLF), a private nonprofit foundation, entered into a

memorandum of understanding (MOU) to facilitate the implementation of the MLPA by

pursuing a set of stated objectives referred to as the California Marine Life Protection Act

Initiative (Initiative or MLPA Initiative). In a written "Conceptual Overview" of the

Initiative that was attached as an exhibit to the MOU, those objectives were identified as

submitting the DFG's "Master Plan Framework" to the Commission by May 2005,

preparing a comprehensive strategy for long-term funding of planning, management and

enforcement of MPAs, designing and submitting the DFG's draft proposal for alternative

networks of MPAs in an area along the central coast to the Commission by December

2005, developing recommendations for coordinating the management of marine protected

areas with the federal government by November 2006, and securing agreement and

commitment among state agencies with marine protected area responsibilities by

November 2006 to complete statewide implementation of the Master Plan by 2011. The

MOU listed the same objectives.

       The conceptual overview of the Initiative stated that the Initiative would require

leadership, policy advisors, stakeholder input, general public participation, science,

resource management and technical expertise, interagency coordination, public-private

partnership, and phased design and implementation. Regarding public-private

                                             12
partnership, the overview stated: "Due to the limited staffing and funding resources of

the Resources Agency and [the DFG], this proposal is dependent upon supplementing

public funding with private resources to enhance the state's capacity to accomplish the

science, analysis, planning, and coordination necessary to achieve the objectives on time.

While private funding will support much of the costs of the Initiative, the work will be

open and transparent."

       The MOU adopted a phased approach to the MLPA master plan, stating that

"[b]ased on its prior and ongoing efforts to prepare a draft Master Plan, the [DFG] has

determined that it will be most effective to prepare the Master Plan in phases.

Specifically, the [DFG] intends as part of the first phase to prepare a Master Plan

Framework that will then be used to develop networks of MPAs within individual

regions." The MOU stated the Master Plan Framework would "include a timeline to

design and implement MPAs in phases by region, beginning with the development of

alternative networks of MPAs for one specific region, namely, an area along the central

coast, as part of the first phase." The MOU provided that the Secretary for the Resources

Agency would appoint seven to ten unpaid advisors to a "California MLPA Blue Ribbon

Task Force" to, among other duties, "oversee the preparation of the draft Master Plan

Framework and the proposal for alternative networks of MPAs in an area along the

central coast for the [DFG] pursuant to the MLPA and this MOU."

       The process implemented by the first MOU resulted in the Commission's approval

of a set of MPAs for the central coast region in April 2007. The regulations establishing

those MPAs became effective in September 2007. The first MOU process also resulted

                                            13
in the Commission's adoption of a "Revised Draft Master Plan for Marine Protected

Areas" (revised draft master plan) in February 2008.

       On January 1, 2007, the Resources Agency, the DFG, and RLF entered into a

second MOU for the North Central Coast study region (NCC MOU). The main objective

of the NCC MOU was "to achieve the objectives of the [MLPA] for the second phase of

developing a statewide network [MPAs]." Another stated objective of the NCC MOU

was "[t]o refine the MLPA Initiative process to benefit from and be responsive to the

lessons learned in the first phase of the MLPA process for the Central Coast . . . ." Like

the first MOU, the NCC MOU provided that the Secretary for the Resources Agency

would appoint members of a Blue Ribbon Task Force (the Task Force). The Task Force's

duties under the NCC MOU were, among other things, to "guide the development of

alternative MPA proposals, modify proposals presented to the Task Force by the

Regional Stakeholders Group[10] as the Task Force deems appropriate and craft

alternative MPA proposals for presentation to the . . . Commission" and to "recommend



10     The revised master plan explains that "regional stakeholder groups are composed
of individuals from each study region who are able and willing to provide information
that will assist in developing alternative proposals for MPAs in their region. The chair of
the task force and the director of the [DFG] solicit nominations, and select from the
nominees regionally representative groups that meet regularly over the course of each
regional process. The stakeholder groups provide local knowledge for refining regional
profiles and informing the MLPA planning process, evaluate existing MPAs, provide
information to other stakeholder group members that may be helpful in designing
alternative MPA packages, develop alternative MPA proposals, conduct outreach to
constituent groups, and identify potential panel speakers to present stakeholder group
recommendations and commentary at task force and other public meetings."


                                            14
to the . . . Commission a range of alternative proposals and a preferred MPA alternative

proposal for the next phase of the MLPA Initiative process[.]" The NCC MOU called for

extensive involvement by the DFG in the development of the MPA proposals.

       In June 2008, the Task Force presented to the Commission five proposals for

designating MPAs in the North Central Coast region. One proposal was to take no action

and leave the 13 existing MPAs for the NCC region as they were. Three other proposals

were from work groups within the Regional Stakeholders Group. The fifth proposal,

developed in a meeting between members of the Regional Stakeholders Group and the

Task Force, integrated elements of the three proposals from the Regional Stakeholders

Group and was presented to the Commission as the "Integrated Preferred Alternative."

       After conducting seven public hearings over a 14-month period, on August 5,

2009, the Commission adopted the Integrated Preferred Alternative proposal with minor

modifications.11 The Commission prepared a final statement of reasons regarding its

adoption of the NCC regulations, including responses to comments (i.e., objections and

recommendations) received at public hearings on the proposed regulations, as required by

Government Code section 11346.9 of the Administrative Procedure Act (APA). (Gov.



11      The extensive public involvement in the process leading to Commission's adoption
of the Integrated Preferred Alternative proposal as the NCC regulations is reflected by the
following statement by a commissioner at the Commission's August 5, 2009 meeting:
"You know, I counted the number of public meetings that we've have [sic] in the North
Central Coast since 2007. That's in the documentation. And no fewer than 38 public
meetings since 2007 on the North Central Coast alone. In fact, I've been involved in
public processes like this for more than 20 years, like everybody else up here. And I
have never seen a more inclusive or elaborate public process than this one."

                                            15
Code, § 11340 et seq.) The Office of Administrative Law approved the NCC regulations

and they became effective on May 1, 2010.

       In February 2011, Coastside, United Anglers of Southern California, and Robert

C. Fletcher filed an "Amended Petition for Writ of Mandate and Complaint for

Declaratory and Injunctive Relief" (the complaint) challenging the NCC regulations and

regulations designating MPAs in the South Coast study region. At issue in this appeal are

the complaint's third cause of action for writ of mandate and fourth cause of action for

declaratory and injunctive relief. Those causes of action challenged the NCC regulations

and were asserted by Coastside only. The trial court bifurcated the claims concerning the

NCC regulations from those concerning the South Coast regulations and adjudicated only

the former claims.12

       Regarding the third and fourth causes of action, the court first ruled that Coastside

failed to exhaust its administrative remedies provided by Government Code section

11346.9 of the APA. Although the trial court correctly noted that exhaustion of


12     The complaint's first and second causes of action, asserted by United Anglers of
Southern California and Fletcher, challenged the South Coast regulations under the
MLPA and Improvement Act. The sixth and seventh causes of action brought by United
Anglers of Southern California and Coastside challenged the South Coast regulations
under the California Environmental Quality Act (CEQA). (§ 21000 et seq.) The fifth
cause of action for declaratory and injunctive relief brought by all plaintiffs challenged
both the NCC regulations and South Coast regulations on the ground the Commission
violated the California Coastal Act (§ 30000 et seq.) by adopting those regulations
without obtaining a coastal development permit. The court rejected that claim, ruling that
designation of MPAs falls within a statutory exception to the permit requirement. (The
court later clarified that it had adjudicated the fifth cause of action as to the NCC
regulations only.) Coastside does not challenge the court's ruling on the fifth cause of
action on appeal.

                                             16
administrative remedies is a jurisdictional prerequisite to seeking judicial relief, it

proceeded to rule on the substantive issues raised by Coastside.13

       The court ruled that the Commission had not exceeded its statutory authority in

adopting the NCC regulations. The court noted Fish and Game Code section 2861,

subdivision (c) (now subdivision (b)), "expressly permits [the Commission] to designate

new MPAs prior to a final Master Plan." The court additionally ruled that the

Coordinating Committee review process under Public Resources Code sections 36800

and 36900 was not required for the NCC regulations for two reasons. First, the court

concluded that "the designation authority contained in [Fish and Game Code]

section 1590 is not subject to the Coordinating Committee review process contained in

the [Improvement Act] because it exists as a stand-alone statute that is outside the

[Improvement Act]." Second, the court concluded that Coordinating Committee review

was not required because under Public Resources Code sections 36800 and 36900, the

Commission's "rulemaking process involving MPA designations only applies to external

MMA proposals from individuals and organizations, not managing and designating

entities." Accordingly, the court denied Coastside's petition for writ of mandate and, in

doing so, impliedly and necessarily denied Coastside's request for declaratory and

injunctive relief under its fourth cause of action. Coastside filed this appeal after




13     The court rejected the Commission's arguments that Coastside's claims were
barred by the doctrines of estoppel, waiver, and laches.

                                              17
voluntarily dismissing its remaining claims in the fifth, sixth, and seventh causes of

action of the complaint.

                                        DISCUSSION

                           I. Exhaustion of Administrative Remedies

       Coastside contends the trial court erred in denying Coastside's petition on the

ground it failed to exhaust its administrative remedies provided by the APA. The

doctrine of exhaustion of administrative remedies requires that " 'administrative remedies

be pursued as a jurisdictional prerequisite to seeking judicial relief from an administrative

action.' [Citation.] 'In general, a party must exhaust administrative remedies before

resorting to the courts. [Citations.] Under this rule, an administrative remedy is

exhausted only upon "termination of all available, nonduplicative administrative review

procedures." [Citations.]' [Citations.] 'This rule is not a matter of judicial discretion, but

rather is a jurisdictional prerequisite.' [Citations.] Moreover, it applies whether relief is

sought by a petition for traditional or administrative mandate. [Citation.] ' "[E]xhaustion

of administrative remedies furthers a number of important societal and governmental

interests, including: (1) bolstering administrative autonomy; (2) permitting the agency to

resolve factual issues, apply its expertise and exercise statutorily delegated remedies; (3)

mitigating damages; and (4) promoting judicial economy." ' " (SJCBC, LLC v. Horwedel

(2011) 201 Cal.App.4th 339, 346.) Whether the doctrine of exhaustion of administrative

remedies applies in a given case is a legal question that we review de novo. (Citizens for

Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873.)



                                              18
       "The APA establishes the procedures by which state agencies may adopt

regulations. The agency must give the public notice of its proposed regulatory action

(Gov. Code, §§ 11346.4, 11346.5); issue a complete text of the proposed regulation with

a statement of the reasons for it (Gov. Code, § 11346.2, subds. (a), (b)); give interested

parties an opportunity to comment on the proposed regulation (Gov. Code, § 11346.8);

respond in writing to public comments (Gov. Code, §§ 11346.8, subd. (a); 11346.9); and

forward a file of all materials on which the agency relied in the regulatory process to the

Office of Administrative Law (Gov. Code, § 11347.3, subd. (b)), which reviews the

regulation for consistency with the law, clarity, and necessity (Gov. Code, §§ 11349.1,

11349.3)." (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 568.)

       Citing City of Coachella v. Riverside County Airport Land Use Com. (1989) 210

Cal.App.3d 1277, 1288 for the proposition that " '[a]n administrative remedy exists where

the administrative body is required to actually accept, evaluate and resolve disputes or

complaints[,]' " the Commission argues that the instant action is barred under the doctrine

of exhaustion of administrative remedies because Government Code section 11346.9

required it to hear, evaluate and respond to any challenges brought during the

administrative hearings on the proposed NCC regulations, and Coastside actively

participated in the rulemaking process without raising any objection to the Commission's

procedure or authority to adopt MPAs.14



14    Government Code section 11346.9, subdivision (a)(3), requires an agency's final
statement of reasons for adopting, amending, or repealing a regulation to include: "A
summary of each objection or recommendation made regarding the specific adoption,
                                             19
       We have found no authority for the proposition that the public comment and

response-to-comment requirements of the APA constitute an administrative remedy that

must be exhausted before challenging the validity of an administrative regulation in a

judicial action or proceeding. In cases applying the exhaustion doctrine, the

administrative procedure in question generally is provided by the statute or statutory

scheme under which the administrative agency is exercising the regulatory authority

challenged in the judicial action. (See Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 566

["[M]ere possession by some official body of a continuing supervisory or investigatory

power does not itself suffice to afford an 'administrative remedy' unless the statute or

regulation under which that power is exercised establishes clearly defined machinery for

the submission, evaluation and resolution of complaints by aggrieved parties."].) Thus, it

is questionable whether the Legislature intended the APA's public comment procedure

applicable to agencies in general to constitute an administrative remedy that must be

exhausted before challenging the validity of a regulation in a court action.

       Assuming, without deciding, that the APA's public comment procedure constitutes

an adequate administrative remedy for a claim that an administrative regulation was


amendment, or repeal proposed, together with an explanation of how the proposed action
has been changed to accommodate each objection or recommendation, or the reasons for
making no change. This requirement applies only to objections or recommendations
specifically directed at the agency's proposed action or to the procedures followed by the
agency in proposing or adopting the action. The agency may aggregate and summarize
repetitive or irrelevant comments as a group, and may respond to repetitive comments or
summarily dismiss irrelevant comments as a group. For the purposes of this paragraph, a
comment is ' irrelevant' if it is not specifically directed at the agency's proposed action or
to the procedures followed by the agency in proposing or adopting the action."

                                              20
adopted without statutory authority, we conclude that the "alternative judicial remedy"

exception to the exhaustion requirement allows Coastside to pursue its judicial challenge

to the NCC regulations notwithstanding its failure to pursue that administrative remedy.

Under the alternative judicial remedy exception, "[t]he exhaustion requirement does not

apply . . . if the Legislature indicates its intent to allow judicial relief notwithstanding the

failure to exhaust administrative remedies by providing for a judicial proceeding as an

alternative to the administrative remedy." (Syngenta Crop Protection, Inc. v. Helliker

(2006) 138 Cal.App.4th 1135, 1159-1160.) The California Supreme Court articulated the

exception as follows: " 'It is . . . well settled that where a statute provides an

administrative remedy and also provides an alternative judicial remedy the rule requiring

exhaustion of the administrative remedy has no application if the person aggrieved and

having both remedies afforded him by the same statute, elects to use the judicial one.' "

(City of Susanville v. Lee C. Hess Co. (1955) 45 Cal.2d 684, 689.)

       Although the Supreme Court referred to the alternative remedies being afforded by

the "same statute," cases have applied the alternative judicial remedy exception where the

administrative remedy and alternative judicial remedy are provided by different statutes

within the same statutory scheme. (See, e.g., San Elijo Ranch, Inc. v. County of San

Diego (1998) 65 Cal.App.4th 608, 613-614 [exhaustion doctrine did not preclude city

from pursuing judicial remedy to enforce its conditional use permit issued to county for

expansion of county's landfill because California Integrated Waste Management Act

gives local governmental entities both an administrative and a judicial remedy to enforce

their reasonable land use conditions or restrictions on solid waste management facilities];

                                               21
Muir v. Steinberg (1962) 197 Cal.App.2d 264, 269-270 [exception applied where

administrative remedy and judicial remedy were in different sections of the Water

Code].)

       The APA provides a judicial remedy as an alternative to challenging the validity

of a regulation through the pre-adoption public comment process. Government Code

section 11350, subdivision (a), states: "Any interested person may obtain a judicial

declaration as to the validity of any regulation or order of repeal by bringing an action for

declaratory relief in the superior court in accordance with the Code of Civil Procedure.

The right to judicial determination shall not be affected by the failure either to petition or

to seek reconsideration of a petition filed pursuant to Section 11340.7[15] before the

agency promulgating the regulation or order of repeal. The regulation or order of repeal

may be declared to be invalid for a substantial failure to comply with this chapter, or, in

the case of an emergency regulation or order of repeal, upon the ground that the facts

recited in the finding of emergency prepared pursuant to subdivision (b) of Section

11346.1 do not constitute an emergency within the provisions of Section 11346.1."

       Although Government Code section 11350, subdivision (a), specifies that a

regulation may be declared invalid for failure to comply with the chapter that comprises

the APA or because it was improperly adopted as an emergency regulation, it does not



15      Government Code section 11340.7, subdivision (a), provides the right to file "a
petition requesting the adoption, amendment, or repeal of a regulation . . . ." Subdivision
(c) of section 11340.7 provides the right to "request reconsideration of any part or all of a
decision of any agency an any petition submitted."

                                              22
limit a declaratory relief action challenging the validity of a regulation to those grounds.

(See Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 320 [validity of a Board

policy is properly raised through a declaratory relief action under Government Code

section 11350].) Because the APA expressly provides the judicial remedy of declaratory

relief to challenge the validity of a regulation and does not expressly require that such

challenges be first raised during the pre-adoption public comment period, we conclude

that bringing a challenge to the validity of a proposed regulation during the public

comment period is not a prerequisite to a judicial action.16 An interested person seeking

to challenge the validity of an administrative regulation may pursue either the APA's pre-

adoption administrative remedy or the post-adoption judicial remedy provided by

Government Code section 11350 or both.17 Accordingly, Coastside is entitled to a

judicial resolution of this matter despite its failure to raise its challenge to the validity of

the NCC regulations through the public comment procedure provided by the APA.



16     In the California Environmental Quality Act (CEQA), the Legislature expressly
provided that raising a challenge in a public comment procedure constitutes an
administrative remedy that must be exhausted before raising the challenge in a judicial
action. Section 21177 provides that no "action or proceeding may be brought pursuant to
Section 21167 unless the alleged grounds for noncompliance with this division were
presented to the public agency orally or in writing by any person during the public
comment period provided by this division or prior to the close of the public hearing on
the project before the issuance of the notice of determination." (See Citizens for Open
Government v. City of Lodi, supra, 144 Cal.App.4th at p. 875.)

17     The provision in Government Code section 11350, subdivision (a), that the right to
declaratory relief is not affected by the failure to petition to repeal or amend the
challenged regulation indicates that the Legislature did not intend that exhaustion of
administrative remedies be a prerequisite to a declaratory relief action under that statute.

                                               23
       Turning to the merits, we note that although Coastside complains about various

aspects of the process that led to the adoption of the NCC regulations, including the role

played by the Task Force that was formed under the NCC MOU, its opening brief

presents two discrete issues for our determination: (1) whether the Commission had

statutory authority to designate MPA's (i.e., adopt the NCC regulations) before the

conclusion of the MPLA's master plan process; and (2) whether the Commission lacked

statutory authority to adopt NCC regulations without prior review by the Coordinating

Committee.

           II. Commission's Statutory Authority to Adopt the NCC Regulations

       The NCC regulations challenged in this appeal are quasi-legislative regulations

because the Commission adopted them in accordance with the Legislature's delegation of

the power to make law. (Yamaha Corp. of America v. State Bd. of Equalization (1998)

19 Cal.4th 1, 7, 10 (Yamaha Corp.).) Quasi-legislative regulations "have the dignity of

statutes." (Id. at p. 10.) When a court assesses the validity of a quasi-legislative

regulation, the scope of its review is limited to determining whether the regulation is

within the law making authority delegated by the Legislature and whether the regulation

is reasonably necessary to implement the purpose of the delegating statute. (Id. at pp. 10-

11.)

       Coastside contends that the trial court erred in ruling that Fish and Game Code

sections 2589, subdivision (c), and 2861, subdivision (c) (now subdivision (b), authorized

the Commission to designate MPAs before completion of the master plan process.

Preliminarily, we presume the trial court's reference to Fish and Game Code section

                                             24
2859, subdivision (c), in that context was a clerical error and that the court intended to

refer to section 2861, subdivision (c). As noted, former section 2861, subdivision (c),

provides: "Nothing in this chapter restricts any existing authority of the department or

the commission to make changes to improve the management or design of existing MPAs

or designate new MPAs prior to the completion of the master plan." The trial court in its

ruling stated: "Fish and Game [Code] section 2861, [subdivision] (c) expressly permits

[the Commission] to designate new MPAs prior to a final Master Plan." Later in the

same paragraph the court reiterated that Fish and Game Code "section 2859,

[subdivision] (c) expressly confers authority to designate MPAs before the conclusion of

the master plan process." (Italics added.) As Coastside points out, Fish and Game Code

section 2859, subdivision (c), does not address the Commission's authority to designate

MPAs before completion of the master plan process; it provides: "The [C]ommission

shall hold at least two public hearings on the master plan and the Marine Life Protection

Program prior to adopting the plan and program. The [C]ommission may adopt the plan

and the program immediately following the second public hearing or at any duly noticed

subsequent meeting." Thus, it appears the court intended to reiterate that subdivision (c)

of section 2861 "expressly confers authority to designate MPAs before the conclusion of

the master plan process[,]" but mistakenly referred to section 2859 instead of section

2861.

        We conclude that the trial court correctly ruled that Fish and Game Code section

2861, subdivision (c), expressly authorized the Commission to designate MPAs before

completion of the master plan process. Coastside's argument to the contrary focuses on

                                             25
the qualifying language in section 2861, subdivision (c), that "[n]othing in [the MLPA]

restricts existing authority of the [DFG] or the [C]ommission to . . . designate new MPAs

prior to the completion of the master plan." (Italics added.) Coastside argues that the

trial court erred in relying on Fish and Game Code section 1590 as authority to designate

new MPAs prior to the completion of the master plan because that statute was not

"existing authority" when the Legislature enacted section 2861.18 We do not construe

the phrase "existing authority" in Fish and Game Code section 2861 to mean authority

existing at the time the Legislature enacted the MLPA, including section 2861; we

construe it to mean authority existing at the time the Commission designates a new MPA.

At the time the Commission adopted the NCC regulations, it had "existing authority" to

do so under Public Resources Code section 36725 and Fish and Game Code section 1590.

       However, even if we were to construe the phrase "existing authority" in Fish and

Game Code section 2861, subdivision (c), to mean authority existing when the MLPA

was enacted, we would still conclude that section 2861, subdivision (c), authorized the

Commission to designate new MPAs before completion of the master plan. When the

MLPA (including section 2861), was enacted in 1999, Fish and Game Code section 1580,



18     As noted, Fish and Game Code section 1590, authorizes the Commission to
"designate, delete, or modify state marine recreational management areas established by
the commission for hunting purposes, state marine reserves, and state marine
conservation areas, as delineated in [Public Resources Code section 36725] of the
[Improvement Act][,]" and Public Resources Code section 36725, subdivision (a),
provides that the Commission "may designate, delete, or modify state marine recreational
management areas established by the commission for hunting purposes, state marine
reserves, and state marine conservation areas."

                                            26
authorized the DFG, with approval of the Commission, to establish marine ecological

reserves to protect threatened or endangered marine aquatic organisms or "large

heterogeneous natural marine gene pools for the future uses of mankind . . . [,]" and

authorized the Commission to "adopt regulations for the occupation, utilization,

operation, protection, enhancement, maintenance, and administration of ecological

reserves." (Stats. 1993, ch. 667, § 1, p. 3845 (A.B. 521).) Fish and Game Code

section 1584 defines "ecological reserve" as "land or land and water areas that are

designated as an ecological reserve by the commission pursuant to Section 1580 and that

are to be preserved in a natural condition, or which are to be provided some level of

protection as determined by the commission, for the benefit of the general public to

observe native flora and fauna and for scientific study or research."19

       Fish and Game Code section 2852, subdivision (c), provides, in relevant part, that

an MPA is a marine area "and associated flora and fauna that has been designated by law,

administrative action, or voter initiative to protect or conserve marine life and habitat.

. . . MPAs are primarily intended to protect or conserve marine life and habitat, and are

therefore a subset of marine managed areas (MMAs), which are broader groups of

named, discrete geographic areas along the coast that protect, conserve, or otherwise

manage a variety of resources and uses, including living marine resources, cultural and



19      As noted, in 2000, after it enacted the MLPA, the Legislature amended Fish and
Game Code section 1580 by deleting references to marine ecological reserves and
limiting the scope of the statute to terrestrial and nonmarine aquatic ecological reserves.
(Stats. 2000, ch. 385, § 3, p. 2388.)

                                             27
historical resources, and recreational opportunities." Thus, the marine ecological reserves

that former Fish and Game Code section 1580 authorized the DFG and the Commission

to establish qualify as MPAs within the meaning of the MLPA because their purpose was

to protect and conserve marine life and habitat. Because the Commission had "existing

authority" when the MLPA was enacted to designate new marine ecological reserves that

are substantially equivalent to MPAs as defined in the MLPA, even under Coastside's

construction of the phrase "existing authority" in Fish and Game Code section 2861,

subdivision (c), the Commission had authority to designate new MPAs for the North

Central Coast study region through the NCC regulations before completion of the MPLA

master plan.

        III. Applicability of the Requirement of Coordinating Committee Review

       Coastside's main challenge to the NCC regulations is that the Commission was

required to comply with the Improvement Act in designating MMAs, but failed to

comply with section 36800, which provides that the Coordinating Committee "shall

review proposals for new or amended MMAs to ensure that the minimum required

information is included in the proposal, to determine those state agencies that should

review the proposal, and to ensure consistency with other such designations in the state."

It is undisputed that there was no Coordinating Committee review of the MMA proposals

that became the NCC regulations. Coastside contends the Commission's failure to

comply with the Coordinating Committee requirement of section 36800 renders the NCC

regulations void.



                                            28
       Coastside first argues that the trial court erred in ruling that Fish and Game Code

section 1590 authorized the Commission to designate MMAs as a "stand-alone statute"

outside the Improvement Act and, therefore, Coordinating Committee review was not

required. We agree that Fish and Game Code section 1590 does not provide "stand

alone" authority to designate MMAs outside the Improvement Act. It is well settled that

the provisions of a statute may be incorporated by reference and become a part of another

statute. (Greene v. Town of Lakeport (1925) 74 Cal.App. 1, 9; Don v. Pfister (1916) 172

Cal. 25, 27-28; Palmero v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59 ["[W]here

a statute adopts by specific reference the provisions of another statute, regulation, or

ordinance, such provisions are incorporated in the form in which they exist at the time of

the reference . . . ."].) Fish and Game Code section 1590 expressly authorizes the

Commission to designate marine recreational management areas, state marine reserves,

and state marine conservation areas20 "as delineated in subdivision (a) of Section 36725

of the Public Resources Code." (Italics added.) The quoted language of Fish and Game

Code section 1590 clearly incorporates Public Resources Code section 36275,

subdivision (a), by reference. "To 'delineate' means ' . . . to describe in detail, esp. with

sharpness or vividness' [citation]; '. . . to describe, portray, or set forth with accuracy or in

detail.' " (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480.)

Accordingly, we construe the language in Fish and Game Code section 1590 giving the


20      State marine recreational management areas, state marine reserves, and state
marine conservation areas all fall within the definition of "marine managed area" set forth
in section 36602, subdivision (d).

                                               29
Commission the authority to designate MMAs "as delineated in subdivision (a) of

Section 36725" to mean that the Commission's authority to designate MMAs is whatever

authority is described and set forth in section 36275, subdivision (a), which is part of the

Improvement Act. It follows that any statutory limits, qualifications, or conditions that

apply to the Commission's designating authority under Public Resources Code section

36725, subdivision (a), apply equally to the Commission's designating authority under

Fish and Game Code section 1590. This point is underscored by Fish and Game Code

section 1591, subdivision (b), which provides that "[s]tate marine recreational

management areas established by the commission for hunting purposes, state marine

reserves, and state marine conservation areas shall be designated, deleted, or modified by

the commission pursuant to [the Improvement Act]. The restrictions and allowable uses

applicable to those areas are as set forth in that act."21 (Italics added.)

       Thus, resolution of the issue of whether the Commission adopted the NCC

regulations in excess of its statutory authority under section 36725, subdivision (a), turns

on whether the requirement of Coordinating Committee review under section 36800

applies to the proposed MMAs that became the NCC regulations and, if so, whether it

was a mandatory requirement. We conclude that Coordinating Committee review under

section 36800 was not required for MMA proposals that became the NCC regulations

and, therefore, the Commission acted within its statutory authority in adopting them.



21    Subdivision (a) of section 1591 of the Fish and Game Code refers to the
Improvement Act.

                                             30
        In construing section 36800 and related statutes, we are mindful that " 'an

individual statute must be construed in the context of the comprehensive statutory scheme

of it is a part. Statutes or statutory sections relating to the same subject must be

harmonized, both internally and with each other, to the extent possible. Where

uncertainty exists, appellate courts must construe provisions in a reasonable, common

sense fashion taking into consideration the practical consequences that will flow from a

particular interpretation.' " (Wirth v. State of California (2006) 142 Cal.App.4th 131,

140.)

        As noted, section 36800 provides that the Coordinating Committee "shall review

proposals for new or amended MMAs to ensure that the minimum required information

is included in the proposal, to determine those state agencies that should review the

proposal, and to ensure consistency with other such designations in the state. The

committee shall also serve to ensure the proper and timely routing of site proposals,

review any proposed site-specific regulations for consistency with the state system as a

whole, and conduct periodic reviews of the statewide system to evaluate whether it is

meeting the mission and statement of objectives." (Italics added.)

        Section 36900 provides: "Individuals or organizations may submit a proposal to

designate an MMA directly through the [Coordinating Committee] or an appropriate

designating entity. Proposals submitted to a designating entity shall be forwarded to the

committee to initiate the review process." (Italics added.) Section 36870 provides that

"[o]n or before January 1, 2002, the committee shall establish a standard set of

instructions for each classification to guide organizations and individuals in submitting

                                              31
proposals for designating specific sites or networks of sites. On or before January 1,

2003, the relevant site proposal guidelines shall be adopted by each designating entity. [¶]

(a) At a minimum, each proposal shall include the following elements for consideration

for designation as an MMA: [¶] (1) Name of individual or organization proposing the

designation." (Italics added.) Section 36870, subdivision (b) provides: "The following

elements, if not included in the original proposal, shall be added by the proposed

managing agency in cooperation with the individual or organization making the

proposal, prior to a final decision regarding designation . . . ." (Italics added.) Section

36900, subdivision (a), reiterates that the Coordinating Committee "shall review

proposals to ensure that the minimum required information is included in the proposal, to

determine those state agencies that should review the proposal, and to ensure consistency

with other such designations of that type in the state."

       Reading section 36800 and 36900 in the context of the entire scheme of which

they are a part, we conclude that section 36900 specifies which MMA proposals must be

sent to the Coordinating Committee (proposals prepared by individuals and

organizations), and section 36800, along with section 36900, subdivision (a), directs what

the Coordinating Committee is required to do with those proposals. In other words,

section 36800 provides simply that the Coordinating Committee shall review proposals,

and section 36900 specifies that the proposals subject to its review will be those

submitted by individuals and organizations.

       Further, we construe the terms "individuals" and "organizations" as used in the

statutory scheme as referring to individuals and organizations outside of the group of

                                              32
state agencies that are involved in the MMA designation process under the Improvement

Act, such as the Commission, the DFG, the Resources Agency, the Department of Parks

and Recreation, and the State Water Resources Control Board. The fact that section

36800 requires the Coordinating Committee to determine which "state agencies" should

review a proposal indicates that the statute contemplates proposals coming to the

Coordinating Committee from outside persons or organizations rather than from state

agencies. Section 36870 requires the Coordinating Committee to "establish a standard set

of instructions for each classification to guide organizations and individuals in submitting

proposals[,]" and section 36870, subdivision (a), requires proposals to state the name of

the "individual or organization proposing the [MMA] designation." If the Legislature

intended that MMA proposals from state agencies be subject to Coordinating Committee

review, it presumably would have required that a proposal identify the individual,

organization, or agency making the proposal.

       Section 36870, subdivision (b), provides that certain "elements, if not included in

the original proposal, shall be added by the proposed managing agency in cooperation

with the individual or organization making the proposal, prior to a final decision

regarding designation . . . ." (Italics added.) This provision shows that the Legislature

distinguished managing agencies from individuals or organizations making proposals and

intended that the role of a managing agency in the Coordinating Committee review

process is to assist individuals or organizations in making proposals that meet the

standards set forth in section 36870.



                                             33
      Coastside argues that even if Coordinating Committee review is required only for

proposals from individuals and organizations and not for proposals from managing

agencies or designating entities, Coordinating Committee review was required for the

NCC regulations because they were proposed by the Task Force and not by DFG or the

Commission. Coastside contends the Task Force was neither a designating entity nor a

managing agency and therefore was either an "individual" or an "organization" under the

Improvement Act. The Commission contends that the Task Force was not an external

individual or entity, but was an arm of the DFG.

      We conclude that the proposal the Commission adopted as the NCC regulations is

properly viewed as a proposal from the DFG and the Resources Agency rather than one

from an outside organization. The Secretary of the Resources Agency appointed the

members of the Task Force under the NCC MOU, and the NCC MOU recited that the

DFG sought to obtain the assistance of the Resources Agency and RLF in preparing the

alternative MPA proposals for the North Central Coast study region. Under the NCC

MOU, the DFG played an extensive role in developing those proposals, including

participating in the appointment of the Regional Stakeholders Group; appointing a

Science Advisory Team; fully participating in the deliberations of the Task Force,

Science Advisory Team and Regional Stakeholders Group and sharing its analysis and

concerns regarding MPA proposals; assigning key personnel to assist in achieving the

objectives of the MOU; providing the Task Force, Science Advisory Team and Regional

Stakeholders Group a statement of feasibility criteria that the DFG would use in

analyzing site alternatives for the second phase of the MLPA process; participating as a

                                            34
member of a steering committee to guide the flow of work required to achieve the

objectives and commitments of the NCC MOU and providing provide staff support for

the Science Advisory Team and the Regional Stakeholders Group; advising the

Commission on the alternative MPA proposals and the Task Force's recommendation to

the Commission for a preferred MPA alternative proposal; and making available to the

Task Force and Science Advisory Team any public data and other technical resources

within the possession of the DFG that are relevant to marine conservation and that are

useful to help complete the objectives of this MOU. In short, the Task Force was a

creation of the Resources Agency that operated on behalf of the Resources Agency and in

partnership with the DFG to prepare alternative MPA proposals to present to the

Commission. In doing so, it was performing governmental functions and was not acting

as an outside entity presenting proposals to the Commission. Because the Task Force

was not the type of outside organization contemplated by sections 36870 and 36900, its

proposals that became the NCC regulations were not subject to Coordinating Committee

review.

      Even if we were to decide that section 36800 required Coordinating Committee

review for the proposed NCC regulations, we would uphold the regulations

notwithstanding the Commission's failure to comply with section 36800 because we

conclude the statutory requirement of Coordinating Committee review is directory rather

than mandatory. The "mandatory-directory" distinction is different from the distinction

between mandatory and permissive statutory provisions. (Galbiso v. Orsosi Public

Utility Dist. (2010) 182 Cal.App.4th 652, 664.) In the context of the dichotomy between

                                           35
mandatory and permissive statutory provisions, " 'the term "mandatory" refers to an

obligatory [procedure] which a governmental entity is required to [follow] as opposed to

a permissive [procedure] which a governmental entity may [follow] or not as it chooses.

By contrast, the "directory" or "mandatory" designation does not refer to whether a

particular statutory requirement is "permissive" or "obligatory," but instead simply

denotes whether the failure to comply with a particular procedural step will or will not

have the effect of invalidating the governmental action to which the procedural

requirement relates.' " (People v. McGee (1977) 19 Cal.3d 948, 958-959.) " '[Many]

statutory provisions which are "mandatory" in the obligatory sense are accorded only

"directory" effect.' " (Id. at p. 959.)

       If a failure to comply with a statutory requirement "is determined to have an

invalidating effect, the statute is said to be mandatory; if the failure is determined not to

invalidate subsequent action, the statute is said to be directory. . . . [I]n evaluating

whether a provision is to be accorded mandatory or directory effect, courts look to the

purpose of the procedural requirement to determine whether invalidation is necessary to

promote the statutory design." (People v. McGee, supra, 19 Cal.3d at p. 958.) " 'If the

procedure is essential to promote the statutory design, it is "mandatory" and

noncompliance has an invalidating effect. If not, it is directory.' " (City of Santa Monica

v. Gonzalez (2008) 43 Cal.4th 905, 924.) "[A] finding that the procedure is mandatory

generally follows where the protection of individuals is involved; however, where the

object or purpose is merely to secure the orderly conduct of business, a finding that the

procedure is directory is the usual result." (Thomas v. Shewry (2009) 170 Cal.App.4th

                                              36
1480, 1487.) "When the object is to subserve some public purpose, the provision may be

held directory or mandatory as will best accomplish that purpose . . . ." ' " (People v.

McGee, at p. 962, italics omitted.)

       The word "shall" in a statute does not necessarily denote a mandatory requirement;

it may be construed as directory or permissive. (Fort Emory Cove Boatowners Assn. v.

Cowett (1990) 221 Cal.App.3d 508, 532.) "Whether a statute is mandatory or directory

depends on the legislative intent as ascertained from a consideration of the entire act."

(Ibid.; People v. Lara (2010) 48 Cal.4th 216, 227.) "When a statute does not provide any

consequence for noncompliance, the language should be considered directory rather than

mandatory." (In re C.T. (2002) 100 Cal.App.4th 101, 111; People v. Lara, at p. 227 [The

Legislature's failure to include a penalty or consequence for noncompliance with a

statutory procedure indicates a directory rather than mandatory requirement.].) Further,

in the absence of prejudice, lack of strict compliance with a statute does not render

subsequent proceedings void. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 880;

Crane v. Board of Supervisors (1936) 17 Cal.App.2d 360, 368 [statutory requirement is

directory when noncompliance results in no injury or prejudice to the substantial rights of

interested persons].)

       There is no penalty or consequence in the Improvement Act for a designating

entity's adoption of an MMA proposal as a regulation without first subjecting the

proposal to Coordinating Committee review under section 36800. The absence of such

penalty or consequence supports our view that the Coordinating Committee review

requirement is directory rather than mandatory.

                                             37
       Looking to the purpose of Coordinating Committee review, we conclude that

invalidating the NCC regulations is not necessary to promote the statutory design. As

stated in section 36800 (and reiterated in section 36900, subdivision (a)), the purpose of

Coordinating Committee review of MMA proposals is "to ensure that the minimum

required information is included in the proposal, to determine those state agencies that

should review the proposal, and to ensure consistency with other such designations in the

state." The Coordinating Committee is also responsible for ensuring that existing MMAs

are reclassified in accordance with the Improvement Act (§ 36750), establishing standard

instructions for each of the six MMA classifications defined in section 36700 to guide

organizations and individuals in submitting MMA proposals (§ 36870), and forwarding

MMA proposals to a scientific review panel to be established by the Secretary of the

Resources Agency (§ 36900, subds. (a) & (b)).

       The NCC regulations adhere to the classification system mandated by the

Improvement Act,22 and there is no dispute as to whether the Integrated Preferred

Alternative proposal that the Commission adopted as the NCC regulations complied with

the requirements for proposals set forth in section 36870. The Coordinating Committee

function of determining which state agencies should review the proposal was unnecessary

to achieve the objective of interagency coordination in the adoption of the NCC


22     An attachment to the DFG's revised draft master plan listed designation criteria for
various types of MMAs and noted that "[p]ursuant to statute, these designation criteria
have been developed by the State Interagency Coordinating Committee for Marine
Managed Areas to assist individuals or groups in developing site proposals."


                                            38
regulations, because the involvement of interested agencies—both state and federal—was

built into the NCC MOU process. The NCC MOU stated that the Resources Agency

sought "to ensure comprehensive and coordinated management, conservation and

enhancement of California's ocean resources for their intrinsic value and for the benefit of

current and future generations[,]" and would "provide state policy leadership and

direction, including coordination with state agencies in furtherance of the state

commitments made in this MOU." As noted, under the NCC MOU, the DFG was

extensively involved in the development of the Integrated Preferred Alternative proposal

adopted by the Commission. The administrative record reflects that the Department of

Parks and Recreation also supported and provided substantial input into the Integrated

Preferred Alternative proposal, and that the proposal was supported by numerous other

public agencies, including the Coastal Commission and the federal Bureau of Land

Management. The Regional Stakeholders Group, which was extensively involved in the

NCC MOU process, included representatives from state and federal agencies as well as

private entities.

       The adoption of the NCC regulations satisfied the Coordinating Committee

objective of ensuring consistency with other MMA designations in the state because the

NCC regulations were developed as one of five phases of an overall MLPA master plan

for the entire state prepared through the MLPA Initiative. Finally, the requirement under

section 36900 of scientific review after Coordinating Committee review was substantially

met as to the NCC regulations. Under the NCC MOU, the DFG appointed a "Science

Advisory Team," whereas under section 36900, subdivision (b), the Secretary of the

                                             39
Resources Agency is responsible for establishing a "scientific review panel" to evaluate

MMA proposals. This deviation in the NCC MOU from the statutory procedure is

insignificant and does not warrant invalidating the NCC regulations. The MLPA

Initiative provided: "The charge to the [Science Advisory Team] is to provide the

scientific knowledge and judgment necessary to assist the [DFG] with: (1) meeting the

objectives of the MLPA Initiative, (2) providing input to the [Task Force], and (3)

completing the north central coast portion of the California Master Plan for MPAs.

Principally, the [Science Advisory Team] is charged with reviewing and commenting on

scientific papers relevant to the implementation of the MLPA, reviewing alternative MPA

proposals, reviewing draft master plan documents, addressing scientific issues presented

by those documents, and addressing scientific questions raised by the [Task Force] or

stakeholders." The function of the scientific review panel under section 36900 is "to

evaluate proposals for technical and scientific validity, including consideration of such

things as site design criteria, location, and size." (§ 36900, subd. (b).) The Science

Advisory Team's involvement in the development of MMA proposals through the NCC

MOU process sufficiently satisfied the requirement of scientific review under section

36900.

         Thus, we conclude that invalidating the NCC regulations on the ground they did

not undergo pre-adoption Coordinating Committee review under section 36800 is not

necessary to promote the statutory purpose of such review, or the broader statutory

objectives of implementing a coordinated network of MPAs and MMAs (Fish & G.

Code, § 2853, subd. (b)(6)); Pub. Resources Code, § 36601). As noted, when the object

                                             40
of a statutory provision is to serve a public purpose, "the provision may be held directory

or mandatory as will best accomplish that purpose. . . ." ' " (People v. McGee, supra, 19

Cal.3d at p. 962, italics omitted.) The ultimate object of Coordinating Committee review

under section 36800 is to further the Improvement Act's broader goal of implementing a

coordinated and consistent system of MMAs for the public good. In our view, this public

purpose of the Improvement Act and the related public purposes of the MLPA are far

better served by our holding the Coordinating Committee review requirement to be

directory than they would be if we were to hold the NCC regulations are invalid on the

ground they were not subjected to Coordinating Committee review before adoption.

       The NCC regulations are the product of years of hard work by a multitude of

interested persons, agencies, and organizations to accomplish the Improvement Act's

mission of ensuring "the long-term ecological viability and biological productivity of

marine and estuarine ecosystems and to preserve cultural resources in the coastal sea, in

recognition of their intrinsic value and for the benefit of current and future generations[,]"

(§ 36620), and the MLPA's objective of creating a system of MPAs that 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." (Fish & G. Code, § 2851, subd. (h).) We are satisfied that the NCC

regulations accomplish these broad public purposes of the MLPA and Improvement Act.

Considering the enormous investment of time and effort by so many that went into their

creation, we are loathe to hold the NCC regulations invalid and undo the arduous process

that resulted in their adoption absent a compelling reason to do so. We find no such

                                             41
reason and conclude the trial court correctly ruled that the Commission acted within its

statutory authority in adopting the NCC regulations.

                                   IV. Evidentiary Issues

       Coastside contends the trial court committed reversible error by excluding

evidence that it unsuccessfully challenged the South Coast regulatory process on the

same grounds it asserts in this action as to the NCC regulations. Coastside argues the

excluded evidence was relevant to show that it was excused from any requirement to

exhaust its administrative remedies before filing this action because it would have been

futile to pursue them. (See Unnamed Physician v. Board of Trustees (2001) 93

Cal.App.4th 607, 620.) Because we have determined that the doctrine of exhaustion of

administrative remedies does not apply in this case, this issue is moot and we need not

address it.

       Coastside also contends the trial court erroneously excluded evidence that in

another action relating to the MLPA filed in Sacramento County Superior Court (the

Sacramento action), the Commission took the position that the Task Force is not a state

agency and, therefore, was not required under the Public Records Act (Gov. Code, § 6250

et seq.) to produce documents the plaintiff Robert Fletcher requested in that action. As

noted, Fletcher was also a plaintiff (but is not an appellant) in the present action.

       We review rulings on the admissibility of evidence for abuse of discretion. (Dart

Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) However,

even if the trial court improperly excluded evidence, the error does not require reversal

unless the appellant shows the ruling was prejudicial—i.e., that it is reasonably probable

                                              42
the appellant would have obtained a more favorable result absent the error. (Saxena v.

Goffney (2008) 159 Cal.App.4th 316, 332.)

       We find no abuse of discretion in the trial court's decision to exclude evidence of

the position taken by the Commission in the Sacramento action. It was proper for the

court to base its decision regarding the status of the Task Force solely on the argument

and evidence before it in this case, and to not consider argument presented in a different

context in a separate superior court action. Even if we were to decide it was an abuse of

discretion to exclude the evidence, we would not find the exclusion prejudicial. The trial

court took judicial notice of the order in which the Sacramento court ruled that the Task

Force is a state agency within the meaning of the Public Records Act. It is clear from the

text of that order that the Commission's position in the Sacramento action on the

governmental status of the Task Force was the opposite of its position in this case, and

that Fletcher's position on that issue in the Sacramento action is the opposite of

Coastside's position in this case. Because the trial court was aware of the Commission's

position in the Sacramento action from the order it judicially noticed, it is not reasonably

probable that the court would have ruled differently on the issue of the Task Force's

status if it had admitted additional evidence of the argument the Commission presented to

trial court in the Sacramento action. In any event, regardless of how the trial court might

have ruled on the status of the Task Force had it admitted the evidence in question, in

light of our conclusion that the Task Force is not a private entity or nongovernmental

organization, the court's exclusion of that evidence cannot be deemed prejudicial.



                                             43
                              V. Request for Judicial Notice

       Coastside requests that we take judicial notice of the following materials: two

fiscal summaries—one from the state Assembly Committee on Appropriations and one

from the state Senate Appropriations Committee—concerning Assembly Bill No. 993,

the bill to establish the MLPA; four documents posted on the DFG's Web site that

concern implementation of the MLPA in the San Francisco Bay study region (the 5th and

final study region in the phased implementation of the MPLA); the Commission's "Final

Statement of Reasons for Regulatory Action" regarding its adoption of MPAs for the

South Coast study region; and an "Enrolled Bill Report" for Assembly Bill No. 2800, the

bill to establish the Improvement Act. We deny the request for judicial notice because

the materials in question are either irrelevant or unnecessary to our resolution of the

issues raised on appeal. (Hughes Electronics Corp. v. Citibank Delaware (2004) 120

Cal.App.4th 251, 266; County of San Diego v. State of California (2008) 164 Cal.App.4th

580, 613, fn. 29.)




                                             44
                                     DISPOSITION

      The order denying Coastside Fishing Club's petition for writ of mandate is

affirmed. The parties shall bear their own costs on appeal.




                                                                         O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.




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