Reported / Citable
Background
Timothy Dummer, a licensed California fisherman, has long sought to fish at the Calaveras Reservoir, a drinking-water reservoir in Alameda and Santa Clara counties owned by the City and County of San Francisco through the San Francisco Public Utilities Commission (SFPUC). The reservoir serves 2.7 million Bay Area residents and is governed by a watershed management plan that currently prohibits public access.
In an earlier lawsuit (Dummer I), the trial court ruled the City had a ministerial duty to determine whether fishing could occur without affecting water purity. The City complied, adopting a resolution finding that fishing could take place subject to CEQA review, terms set by the General Manager, and approval from the State Water Resources Control Board (SWRCB). The City then began planning a fishing program, including road widening, parking, restrooms, and security fencing.
Unhappy that the reservoir did not immediately open, Dummer filed a second petition for writ of mandamus seeking to compel the City to apply for an amended water supply permit and open the reservoir in its natural state, without improvements, right away.
The Court’s Holding
The First District Court of Appeal affirmed the trial court’s denial of Dummer’s petition. The court held that the Health and Safety Code recognizes a public owner’s authority and discretion to evaluate and propose the terms and conditions of a fishing program before submitting a water supply permit application to SWRCB. Nothing in the statute imposes a specific deadline for that application, and the City’s ongoing planning efforts did not constitute a failure to perform a ministerial duty.
The court also rejected Dummer’s arguments that Fish and Game Code section 5943, the California Constitution’s right-to-fish provision (article I, section 25), or the public trust doctrine entitled him to immediate access. Relying on SLO Sportsman’s, the court emphasized that the public right to fish must yield to the reasonable exercise of the state’s police power to protect public safety and welfare, including environmental review under CEQA.
Critically, the court found the Title 17 permitting regulations require a public owner to submit detailed information about its proposed fishing program—including sanitary facilities, surveillance plans, and CEQA documentation—with any permit application, reinforcing that the City must first make those determinations before it can meaningfully apply.
Key Takeaways
- A public agency that owns a drinking-water reservoir has discretion to develop a fishing program—including infrastructure, environmental review, and operational terms—before applying for a water supply permit from SWRCB.
- There is no statutory deadline for submitting a permit application under Health and Safety Code section 117045, and mandamus cannot compel immediate submission when the agency is still gathering required information.
- The public right to fish under Fish and Game Code section 5943 and the California Constitution is not absolute; it is subject to regulatory requirements, CEQA compliance, and protections for drinking water purity.
- The Fish and Game Commission’s CEQA negative declaration for statewide fishing regulations does not substitute for the site-specific environmental review a reservoir owner must complete before opening a particular reservoir to public access.
- Courts will not grant mandamus to control the manner in which a public agency exercises its discretion in designing a fishing program, only to compel the exercise of that discretion.
Why It Matters
This decision provides important guidance for public agencies that own or manage drinking-water reservoirs facing pressure to open facilities to recreational use. It confirms that reservoir owners retain significant discretion to plan, design, and obtain environmental review for recreational programs before committing to a water supply permit application. Agencies need not rush to open facilities in their natural state and can require infrastructure improvements they deem necessary for public safety and water quality.
For advocates and community members seeking recreational access to public water resources, the case underscores that the right to fish—while constitutionally recognized—must be balanced against other legal obligations including CEQA and drinking water regulations. Successful mandamus actions in this area will need to show that an agency has refused to act at all, not merely that it is proceeding at a pace the petitioner finds too slow.