California Legal Brief

The Rule of Dummer v. City and County of San Francisco is that a public agency owning a reservoir has discretionary authority to evaluate and determine terms and conditions for a fishing program before submitting a water supply permit application, and is not subject to mandamus for immediate permit application submission, under circumstances where the agency has made the required water purity determination and is actively taking steps to comply with applicable permitting requirements including CEQA review.

Appeal from denial of petition for writ of mandate in Superior Court, Alameda County.

Plaintiff Appellant was Timothy James Dummer — a licensed California fisherman seeking public access to fish at the Calaveras Reservoir.

Defendants Respondents were City and County of San Francisco and San Francisco Public Utilities Commission — the public entities owning and operating the Calaveras Reservoir that provides drinking water to 2.7 million Bay Area residents.

The suit sounded in mandamus seeking to compel immediate water supply permit application and opening of reservoir to public fishing. No cross-claims.

The key substantive facts leading to the suit were Dummer previously obtained a writ in "Dummer I" requiring the City to determine whether fishing could occur without affecting water purity. The City complied, determining in Resolution 22-0135 that shoreline fishing could occur subject to CEQA review and state approval, but then began planning for a fishing program including safety improvements, infrastructure protection, and regulatory compliance rather than immediately opening the reservoir.

The procedural result leading to the Appeal: The trial court denied Dummer's petition for writ of mandate, ruling that Dummer failed to identify any breach of a ministerial duty by the City, finding no mandatory time requirement for permit submission and that the City was not abusing discretion in addressing preconditions before applying for an amended water supply permit.

The key question(s) on Appeal: Whether Dummer is entitled to mandamus relief compelling the City to immediately obtain an amended water supply permit and open the Calaveras Reservoir in its natural state to public fishing based on alleged ministerial duties under Fish and Game Code section 5943, Health and Safety Code section 117045, and constitutional provisions.

The Appellate Court held that the Health and Safety Code provisions give the City discretionary authority to evaluate and determine appropriate terms and conditions for controlling fishing access at the reservoir, subject to SWRCB approval, and that mandamus cannot compel immediate permit submission where the City is actively working to gather required information and documentation for a compliant application, as the statutory schemes contemplate discretionary programmatic planning rather than immediate access without regard to safety, environmental, and regulatory requirements.

The case is inapplicable when a public agency refuses to take any steps toward discharging statutory duties, fails to make the required water purity determination, or acts unlawfully or arbitrarily in the permitting process rather than diligently working toward compliance.

The case leaves open whether mandamus relief might be available if the City or SWRCB act unlawfully or arbitrarily in future stages of the permitting process, and does not resolve the scope of constitutional fishing rights in artificial reservoirs or the interplay between various immunity statutes and regulatory compliance obligations.