The Rebirth of California Fish & Game Code Section 5937: Water for Fish

The story of 5937 is a story of California’s failure to protect the public trust. The California Legislature has consistently made protection of fish a priority, passing increasingly protective laws, using exceptionally clear language, and reiterating the State’s interest in the safekeeping of its natural resources. Even as the Legislature sought to protect the people’s riches, however, the State neglected to enforce these laws. CDFG has been unable or unwilling to enforce 5937 directly, the Attorney General disavowed the law’s primary purpose, the Water Board pretended 5937 did not exist, and the judiciary prevented private litigants from asserting 5937 violations. By the late 1950s, 5937 was law in name only, and California’s fish paid the price of non-enforcement. The resurgence of the public trust doctrine in California, and recognition of the private litigant’s role in its enforcement, saved 5937 and so brought new hope to California’s native fish and fisheries, although they are still in peril. Strict 5937 enforcement in the future, either by private litigants or by state agencies, is a prerequisite for recovery of California’s native fish. Section 5937 is a straightforward law with broad power to rehabilitate aquatic ecosystems and the habitat they depend on. Maintaining diverse and abundant fish populations in streams below dams stands as a public trust duty and a legislative mandate; under California law, these fisheries must be restored, and robust 5937 enforcement will play a central role in their restoration.

The full story of litigation around this section of the Fish and Game Code is told in The Rebirth of California Fish & Game Code Section 5937: Water for Fish

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