“Fishing is an art of patience and timing.” – Daan Uijterwaal
In a published opinion filed May 29, 2026, the First District Court of Appeal (Div. 3) affirmed a judgment denying a petition for a writ of ordinary mandamus to compel public agency respondents, including the City and County of San Francisco (“City”) and the San Francisco Public Utilities Commission (“SFPUC”), to immediately obtain an amended water supply permit and open the City-owned Calaveras Reservoir in its natural state to public fishing. Timothy James Dummer v. City and County of San Francisco, et al. (2026) ___ Cal.App.5th ___. The Court held that the writ was properly denied because plaintiff and appellant Dummer had not demonstrated any failure by the public agency defendants to perform a ministerial duty under applicable law.
Relevant Factual Background and Litigation History
City’s Calaveras Reservoir, located in Alameda and Santa Clara Counties, contains rainbow and steelhead trout and other fish species; it also supplies drinking water to 2.7 million Bay Area residents and is governed by the Alameda Watershed Management Plan. The management plan was adopted by the SFPUC, after CEQA review, in 2001 to meet the primary goal of water quality protection and secondary goals of watershed management; significantly, it currently prohibits public access and fishing at the Calaveras Reservoir.
Plaintiff and Appellant Dummer, a licensed California fisherman who has long sought to fish the Calaveras Reservoir, filed a prior writ of mandate action in 2019, raising claims under the State Constitution, Fish and Game Code, and Health and Safety Code, and seeking to compel the City to immediately determine that public fishing would not affect the purity and safety of the reservoir’s water and to obtain a valid water supply permit setting forth terms and conditions under which such fishing may occur. The trial court in that action recognized that the right to public fishing in a reservoir is a qualified right, with the primary issue being whether it could occur without affecting the water’s purity. It granted a limited-scope writ finding the City had a present ministerial duty to determine whether public fishing could occur in the reservoir without affecting the water’s purity and safety for drinking and domestic purposes under Health and Safety Code § 117045. It also indicated that if City determined that public fishing could so occur, then City would also be required under that same law to (1) develop and propose a CEQA-reviewed fishing program with time, place, and manner restrictions, and any necessary facilities, and (2) apply to the State Water Resources Control Board (“SWRCB”) for an amended water supply permit and include with its application whatever program terms and conditions it deemed necessary for public fishing to occur. The Dummer I trial court emphasized that, at that time, City had no ministerial duty except to immediately commence the evaluation required to make the initial determination, taking into consideration all the factors in the applicable Health & Safety Code statutory provisions.
In response to the trial court’s order, the City adopted Resolution 22-0135 determining that, subject to CEQA review and the SWRCB’s analysis, shoreline public fishing can occur under terms set by the SFPUC’s General Manager without affecting the purity and safety for drinking and domestic purposes of the reservoir’s water. The resolution further authorized the City’s General Manager to develop the terms and conditions of a fishing program allowing such limited shoreline public fishing, to be reviewed by City’s Planning Department under CEQA; to seek a corresponding amendment of City’s SWRCB drinking water permit; and to present to the City corresponding amendments to the governing watershed management plan.
After adopting Resolution 22-0135, the City undertook planning for the fishing program and determined it would require various improvements to ensure public and staff safety, to protect the watershed and drinking water quality, and to safeguard SFPUC infrastructure; these improvements included access road widening, expansion of the paved landing area to accommodate public parking and restrooms, security fencing, and directional signage.
After learning that the Calaveras Reservoir would not be immediately opened for fishing while the City planned and evaluated its fishing program, an apparently impatient Dummer filed the instant writ action, combined with a complaint for declaratory and injunctive relief and damages (“Dummer II”), asserting the City had mandatory and ministerial duties to immediately obtain the required SWRCB water supply permit under Health & Safety Code § 117045 and immediately provide public fishing access during open season under Fish and Game Code § 5943 and the California Constitution, article I, § 25, and article X, §§ 2 and 4.
The trial court denied the Dummer II petition for failure to show the City’s breach of any ministerial duty. It concluded that the Health and Safety Code and its implementing regulations imposed no mandatory time period for the City to apply for an amended water supply permit; that the Fish & Game Code does not provide for immediate fishing access prior to the City’s satisfaction of other legal requirements; and that the Constitution imposes no ministerial duty to open a reservoir for fishing absent compliance with applicable state statutes and implementing regulations. The trial court ruled the City did not abuse its discretion by not yet having applied for the amended water supply permit, in light of its ongoing efforts to address and resolve all necessary preconditions, including describing terms and conditions, obtaining CEQA review, and amending the watershed management plan. After Dummer dismissed his damages claim, the trial court entered its final judgment, which Dummer appealed. The Court of Appeal affirmed.
The Court of Appeal’s Opinion
Required Showing for Mandate Relief, and Applicable Standard of Review
After ruling on numerous requests for judicial notice, the Court of Appeal set forth the standard of review and the applicable statutory schemes (under the Fish and Game Code, Health and Safety Code, and CEQA) in some detail before beginning its analysis. The key issue was whether Dummer was entitled to a writ of mandate compelling the City to immediately apply to the SWRCB for an amended water supply permit and immediately open the reservoir, in its natural state without improvements, to public fishing. The Court recited the legal principles governing the availability of ordinary mandamus relief as follows:
To obtain mandamus relief under Code of Civil Procedure sections 1085 and 1086, “the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to performance of that duty.” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129; see Los Angeles County Prof. Peace Officers’ Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869.) “’A ministerial duty is an act that a public agency or officer is required to perform in a prescribed manner in obedience to the mandate of legal authority without regard to any personal judgment concerning the propriety of the act.’” (Water Audit California v. Merced Irrigation Dist. (2025) 111 Cal.App.5th 1147, 1181 (Water Audit California) [quoting Siskiyou Hospital, Ins. v. County of Siskiyou (2025) 109 Cal.App.5th 14, 41].) [¶] Though mandamus is appropriate to compel a public entity to exercise its discretion as lawfully prescribed, it cannot be used to compel the exercise of discretionary powers in a particular manner. (Water Audit California, supra, 111 Cal.App.5th at pp. 1180-1184; AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 704 (AIDS Healthcare).) The use of mandatory language in a statute creating a duty does not necessarily mean the duty is ministerial; instead, “’the duty is discretionary if the [public entity] must exercise significant discretion to perform the duty.’” (Mooney v. Garcia (2012) 207 Cal.App.4th 229, 233.)”
(Slip. Opn., p.8.)
The Court proceeded to interpret and determine the applicability of the various statutory and constitutional provisions Dummer cited in support of his mandamus claims de novo; it more deferentially reviewed the trial court’s factual findings – such as the finding that the City was engaged in ongoing efforts to address and resolve water permit application preconditions at the time Dummer II was filed – for substantial evidence support.
Applicable Statutory and Constitutional Law
The Court prefaced its analysis with a discussion of relevant provisions of the Fish and Game Code, the Health and Safety Code, CEQA, and the State Constitution. While Fish & Game Code § 5943(a) provides in mandatory language that a dam owner “shall accord to the public for the purpose of fishing, the right of access to the waters impounded by the dam during the open season for the taking of fish in the stream or river[,]” the right is made expressly subject to Fish and Game Commission regulations, one of which Dummer pointed out authorizes catch-and-release fishing at Calaveras Reservoir performed only with artificial lures and barbless hooks. At the same time, Health and Safety Code §§ 7626-7627 provide that any recreational use on or around a domestic water supply reservoir is prohibited unless specifically authorized in a water supply permit; these statutes’ implementing regulations require detailed information about the nature, location, extent and intensity of the proposed public use – including environmental information and the public owner’s program to control and provide facilities for the user – to be provided in the permit application, including CEQA review documentation for any watershed management plan amendment required to allow the new recreational use. (See, e.g., Cal. Code Regs., tit. 17, § 7626(b).)
The State Constitution recognizes “the right to fish” and prohibits laws criminalizing people entering public lands to fish in water containing State-planted fish.
Applicable Laws Create No Ministerial Duty
To Take Immediate Actions As Desired By Dummer
Health and Safety Code § 117045 provides that prior to opening a reservoir to public fishing, a public owner shall determine such fishing will not affect the water’s purity and safety, and shall also obtain from the SWRCB a valid water supply permit containing terms and conditions for conducting the public fishing. Dummer read the statute to mean that the SWRCB would itself determine terms and conditions, and that the City had no discretion to delay submitting a permit application pending its efforts to consider and propose appropriate conditions, such that the City was required to immediately obtain an amended water supply permit and open the reservoir – in its natural condition and without any improvements – to public fishing.
The Court of Appeal disagreed for numerous reasons. To begin with, the City had never concluded public fishing could safely immediately occur without further steps and preconditions, and none of the statutes compelled such a result. The relevant Health and Safety Code sections do not contain language preempting CEQA or other potentially applicable statutory schemes or purport to apply “notwithstanding any other law.” And while under section 117045 the SWRCB ultimately determines the final water supply permit terms and conditions, the law doesn’t operate to deprive the public reservoir owner of its authority to evaluate and discretion to decide what terms and conditions to propose in its permit application. Moreover, section 115830 makes clear that recreational uses on water supply reservoirs are subject to permitting regulations in Title 17 that expressly require applications to contain a host of detailed information, including as to the public owner’s program to control the use and related facilities, and also including environmental documentation where the program qualifies as a CEQA “project.” Per the Court:
Since all such information and documentation must be submitted with a permit application, the permitting scheme can only be understood as requiring a public owner to evaluate and propose programmatic elements for controlling public fishing in its reservoir, including those that require the owner’s compliance with environmental laws such as CEQA. (Health & Saf. Code, §§ 117040, 117045, 117060; Tit. 17, § 7626, subd. (b).) Critically, these requirements enable SWRCB to make informed decisions regarding the terms and conditions of any permit it approves.”
(Slip Opn., at p. 15.)
Nor did the Fish and Game Code statute authorizing year-round fishing in the context of revising sport-fishing regulations create a ministerial duty to open Calaveras Reservoir immediately without a fishing program or site improvements in place. Per the Court:
[B]ecause that particular project [of promulgating revised statewide sport-fishing regulations], in and of-itself, did not require or call for any new facilities, construction, land alteration, or land use changes, there was no need or occasion to review the environmental effects of proposed infrastructure and facilities that might be necessary to ensure that fishing could occur without compromising the purity of the reservoir water and the safety and welfare of the public. We may reasonably surmise that type of individualized project review was left to reservoir owners when complying with the Commission’s new regulations, the Health and Safety Code and its permit application process, and CEQA.”
(Slip Opn., at pp. 16-17.)
And even if Dummer’s cited Constitutional provisions applied (which the City disputed), neither they nor Fish and Game Code § 5943 “purport[] to guarantee an unrestricted right to fish without regard to regulatory requirements or other important state interests, such as addressing potentially significant environmental concerns.” (Slip Opn., at p. 17, fn. omitted.)
The Court of Appeal found helpful guidance on this point in the California Supreme Court’s opinion in State of California v. San Luis Obispo Sportsman’s Assn. (1978) 22 Cal.3d 440, 448 (“SLO Sportsman’s”), which explained that “the public right to fish “must yield in appropriate factual situations to the reasonable exercise of the state’s inherent power to protect public safety and welfare.” (Emph. added by Court of Appeal.) While the Court of Appeal acknowledged that SLO Sportsman’s “did not address the issue of CEQA-imposed mandates, [it] conclude[d] the quoted passage reasonably encompasses not only our state’s interest in protecting water purity but also its strong policy of protecting the environment.”
The Court readily rejected the remainder of Dummer’s constitutional and statutory arguments, as well as his claims of improper delay and alleged efforts by the City to “frustrate” the SWRCB’s regulatory authority, observing that “[t]he evident purpose of City’s actions is to propose a CEQA-compliant public fishing program which SWRCB can then consider through the water supply permit process.” Per the Court:
The upshot of the Health and Safety Code provisions at issue is that the law recognizes the authority and discretion of the City to evaluate and determine the terms and conditions it deems necessary to control fishing access at the reservoir, subject to approval by SWRCB. [citation] Dummer offers no authority suggesting mandamus is appropriate to compel the City’s immediate submission of a permit application without making its determinations. [citation] Indeed, his insistence that the City immediately submit a permit application without doing so goes beyond an effort to compel compliance with Health and Safety Code section 117045 and impermissibly attempts to control the City’s discretion in determining the appropriate parameters of a proposed fishing program. [citations]”
(Slip Opn., at pp. 21-22.)
The Court concluded by observing that substantial evidence supported the trial court’s findings that the City’s failure to apply for an amended permit at the time Dummer II was filed was not arbitrary or beyond the bounds of reason, and “that the City was moving forward and taking appropriate steps to identify and document the terms and conditions that would garner SWRCB’s approval for a permit.” While thus concluding Dummer’s current appeal lacked merit, the Court left the door open for future litigation should the City not diligently finish its tasks and submit a permit application as anticipated, or should it act unlawfully in future stages of the permitting process.
Conclusion and Implications
The Court of Appeal interpreted and reconciled a number of statutory provisions and schemes from different Codes – including CEQA’s environmental review scheme – to explicate the required steps in the process for opening a public agency’s drinking water reservoir to public fishing. Despite seemingly mandatory language in some provisions regarding the “right to fish,” the required permitting process is one that by its nature requires considerable time to accomplish and the exercise of a substantial amount of discretion by the public reservoir owner.
Dummer’s arguments that various discrete laws created ministerial duties for the City to take immediate actions to open its reservoir to public fishing – without the exercise of any discretion to determine the terms and conditions required to accommodate and control such recreational use – grossly oversimplified and misread the statutory scheme established by the Health and Safety Code and, of course, CEQA. While Dummer will most likely be able to fish the Calaveras Reservoir at some point in the future, that day is not yet here and he will have to patiently wait a reasonable time for the permitting process to play out, and thereafter for the permitted improvements enabling public fishing to be constructed. Much like successfully fishing, effectively pursuing ordinary mandamus litigation to enforce an agency’s legal duty to exercise its discretion to achieve an end result requires both patience and good timing.
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