ea seat b Department of Fish and Game RECEIVED Flex. iS Memorandum COMMISSION Date: March 2, 2014 201 HAR ~2 AKIO: 12 To: Fish and Game Commission Cf \ or From: John McCamman, ee Department of Fish cS Subject: Correction: Frogs and Turtles Discussion of February 3, 2011 At the February 3 Commission meeting, | indicated that | was required under the relevant code section to issue permits for importation of live frogs and turtles for the food market if the applicant met all of the criterion outlined in the code. | characterized this as “shall issue” language. That was consistent with my understanding at the time, After | got an email from a Commissioner questioning that conclusion, ! went back and reviewed my conversations with several involved staff and determined that | had indeed misinterpreted what | was advised, which was: “we are precluded from denying a permit without cause related to the terms and conditions.” | took that as “shall issue" language, which it is not. Here is what lam being advised: ‘Section 236 does not contain “mandatory” language per se, but it also does not provide any discretion with regard to permit issuance for live turtles and frogs, except to some extent with regard to long-term permits. Section 236(c) establishes the procedure for issuing standard importation permits. That procedure simply involves filing out a basic form application at least 10 days prior to importation, payment of the permit fee, and Department approval of the application. The regulation does not contemplate any exercise of discretion in determining whether fo issue the permit, and the application form itself requires only very basic information (name and address, species to be imported, etc). If the application is properly filled out, | don't believe the regulation as drafted provides any discretion to deny a permit (though permits can be revoked on inspection under certain conditions). Section 236(c)(6) establishes the basis for long-term importation permits. That section provides discretion with regard to long-term live turtle and frog importation permits in several regards: (1) it says the Department "may" issue long term permits; (2) it authorizes the Department to issue those permits for "up to one year,” and (3) it only authorizes the Department to issue long-term permits for live frog and turtie importation if the Department determines that the species "represent no significant risk to the fish and wildlife resources of the state.” With regard to the "may" language, the regulation stil does not provide any criteria for the Department to consider in determining whether to issue the permit, and the permit application form is the same basic form described above for standard importation permits. So, any refusal to issue a long-term permit absent a determination that the live import of frogsFish and Game Commission March 2, 2011 Page 2 and turtles may present a risk to the fish and wildlife resources of the state would. arguably be arbitrary and capricious. In any event, a refusal to issue long-term permits would simply result in applicants seeking multiple standard permits, with the associated increased workload for the Department and likely litle reduction in the live import of the species. When | advised the Commission that | “shall issue" a permit, and that | was not able to exercise discretion if the applicant complied with the application procedures, | was correct in ‘substance, though not as to the reason. Further, as | have advised the Commission, we are continuing to issue short term, not long term importation permits. ‘Stopping the importation of frogs and turtles for the live animal market will require a change of the existing rules governing that importation. | have advised the Commission that changing those rules will address a small part of the problem (the much bigger sector being for the pet trade) and will result in the requirement to go through the regulatory process, including CEQA. | have further advised that this is a low priority for the use of the Department's very limited resources My personal apologies if | caused any misunderstanding as to the specific regulatory language; however, | stand by my conclusions and recommendation that the Commission not insist that the Department enter into the regulatory process on this issue.