Young v. Cal. Fish & Game Comm'n

235 Cal. Rptr. 3d 366, 24 Cal. App. 5th 1178
CourtCalifornia Court of Appeal, 5th District
DecidedJuly 2, 2018
DocketE067151
StatusPublished
Cited by50 cases

This text of 235 Cal. Rptr. 3d 366 (Young v. Cal. Fish & Game Comm'n) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Young v. Cal. Fish & Game Comm'n, 235 Cal. Rptr. 3d 366, 24 Cal. App. 5th 1178 (Cal. Ct. App. 2018).

Opinion

MILLER, J.

*1181Plaintiff and appellant Kele Young, owner and operator of the Magic Jungle Wildlife Preserve, a wildlife sanctuary located in Lucerne Valley, appeals the denial of her petition for writ of mandate (Writ) brought against respondents and defendants *368California Fish and Game Commission (Commisssion); California Department of Fish and Wildlife (Department); Charlton H. Bonham, Director of California Department of Fish and Wildlife; and Sonke Mastrup, Director of California Fish and Game Commission (collectively, Wildlife Agencies). This appeal is a dispute over the refusal of the Wildlife Agencies to waive an approximately $300 inspection fee required pursuant to California Code of Regulations, title 14 (CCR) sections 671.1 and 703, required to be paid in order for Young to renew the permit for the Magic Jungle.

Young makes the following claims on appeal: (1) The lower court erred and demonstrated bias by ignoring Fish and Game Code section 2150, subdivision (c), and CCR 671.1, subdivision (b); (2) courts have a duty to avoid absurd results; (3) the lower court erred and demonstrated bias by not applying Code of Civil Procedure section 1094.5, subdivisions (b) and (c) ; (4) the lower court erred by not applying the mandatory requirements of Government Code section 11500 ; (5) the lower court erred and demonstrated bias by making factual findings that were without support, which may be drawn from the facts in the record; (6) the lower court erred and demonstrated bias by permitting extra record evidence; (7) the lower court erred and demonstrated bias by not weighing all of the evidence before it; (8) the lower court erred and demonstrated bias by refusing to consider the opinion of the Fifth Circuit Court of Appeal and the truth of matters asserted in it; (9) the lower court erred and demonstrated bias by not issuing writ relief pursuant to Code of Civil Procedure section 1085, subdivision (a) ; (10) the lower court erred and demonstrated bias by denying the Writ because writ relief was warranted here; (11) the lower court erred and demonstrated bias by alleging that CCR section 671.1, subdivision (b)(10), did not provide for a waiver of the application, nor inspection fee; and (12) the lower court's failure to issue a statement of decision is reversible error per se.

A majority of Young's claims have been waived by her making only conclusory allegations and providing no legal authority and/or by failing to provide any citation to the record. The only issues that are properly reviewed by this court are whether the Wildlife Agencies could refuse to waive the inspection fee without consideration of the "justified reasons" or whether it was in the "best interests" of the public to waive the fee in light of Fish and Game Code section 2150, subdivision (c), and CCR section 671.1, subdivision (b)(1); and if reversal is warranted due to the trial court failing to issue a statement of decision.

*1182FACTUAL AND PROCEDURAL HISTORY

A. THE DEPARTMENT'S DENIAL OF RENEWAL APPLICATION

Young, as an individual, operated the Magic Jungle, which housed restricted species wildlife, including one leopard, one mountain lion, two Indochinese Leopards and two Siberian Tigers. The first permit for the Magic Jungle had been issued by the Department in approximately 1990 and renewed each year thereafter. On August 8, 2013, Young filed her restricted species permit renewal application (Renewal Application) with the Department to renew her permit for the Magic Jungle. She included information on the Renewal Application that she had one to five enclosures for animals and checked that the standard inspection fee would be $227.91. Young represented on the Renewal Application that the Magic Jungle was exempt from payment of the permit fee, non-refundable application fee and inspection fee. Her existing *369permit was set to expire on November 9, 2013.

The Department notified Young on July 14, 2014, that her Renewal Application was incomplete because the inspection fee had not been paid. The Department advised Young that it had agreed to waive the $56.14 permit fee and the $56.65 non-refundable application fee. However, she had to pay the $227.91 inspection fee. She was given 30 days to pay the fee. The Department explained that in order for a permit to be renewed, "The applicant must submit all of the documentation, information and fees required as part of the application process (Sections 671.1 (c)(2)(A) and 703, Title 14, of the CCR )."

The Department provided an internal memorandum regarding the waiving of the permit and application fee, which stated, "Based on Department staff's knowledge of [Young]'s facility from past inspections and the care she is giving to her animals, we determined it is in the best interest of the animals and the Department to waive the permit application fee pursuant to Title 14, Section 671.1(b)(1)." It noted, "The fee waiver is only for the permit application fees and does not waive [Young]'s inspection fees. Title 14, Section 671 does not provide the [Department] the authority to waive any other fees."

In the denial of the Renewal Application, the Department advised Young that she could pay the $227.91 inspection fee along with a corrected application within 30 days. She was advised that if she chose not to pay the fee, her facility would have to transfer the animals to another facility. She could appeal the decision to the Commission but would need to submit the inspection fee, which would be refunded if she was successful on appeal.

Notice of denial of the Renewal Application was sent to Young by the Department on September 19, 2014.

*1183B. COMMISSION REVIEW

Young filed a notice of appeal from the denial of her Renewal Application. On November 4, 2014, a request to set a hearing on the appeal of the denial of the Renewal Application was filed with California's Office of Administrative Hearings (OAH). On March 12, 2015, the OAH issued its proposed decision pursuant to CCR section 671.1, subdivision (c)(7)(A).1 The OAH proposed decision summarized the proceedings in front of the Department.

Numerous exhibits were considered by the OAH. These included a letter from the Commission that it would be submitting the appeal for decision to the OAH and that all submissions would be in writing. Young objected to the OAH deciding the matter. The exhibits also included Young's opening brief. Young argued that Fish and Game Code sections 200, 220, 240, 1002, 2116, 2118.5 and 2150, subdivision (b)2 ; CCR section 671.1, subdivisions (b), (b)(3), and (b)(10); and CCR section 671.8 all provided that the Department had the authority to waive the inspection fee.3

*370Young asked that the OAH take judicial notice of the Fish and Game Code sections and CCR sections cited in her brief.

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Bluebook (online)
235 Cal. Rptr. 3d 366, 24 Cal. App. 5th 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-cal-fish-game-commn-calctapp5d-2018.