Why I'm Feeling More Confident About Our October 2 Hearing

California Government Code Section 11340.7 and the petition process

In last week's CLIFFNotes, I expressed a little doubt.

I had found a few mistakes in our response to the Attorney General's reply in support of the demurrer. When you're representing yourself and staring at filings written by attorneys from the California Department of Justice, it's pretty easy to start wondering what you might have missed.

But something interesting has happened since then.

The more familiar I become with California Government Code section 11340.7, the more confident I feel about the basic argument we're taking into court on October 2.

And I keep coming back to what you see in the graphic above.

What does Section 11340.7 require?

Section 11340.7 establishes a process for petitions asking a state agency to adopt, amend, or repeal a regulation.

Our position is not that the Fish and Game Commission had to grant Petition 2025-003.

It didn't.

Our position is much simpler: the Commission had to complete the statutory petition process.

The Commission could deny the petition and explain why. It could grant it. It could take another action permitted by the statute and provide the required written notice.

What I don't see in Section 11340.7 is a fourth option:

That distinction has become increasingly important to me as I've prepared for the hearing.

We're not asking the court to legalize ferrets

This case is sometimes easy to misunderstand because the underlying subject is ferrets.

But we're not asking the Superior Court to decide whether ferrets should be legal in California.

We're not asking the court to order the Commission to approve our proposed regulation.

We're asking a much narrower question:

The Attorney General argues that the Commission satisfied its obligation when it granted our petition for "further consideration" and referred it to the Department of Fish and Wildlife.

The Commission's own website describes an accepted petition somewhat differently. It says that when the Commission grants a petition for further consideration, it may "add the petitioned change to its rulemaking schedule."

Fish and Game Commission Petition Process

That is one of the questions now before the court.

Does "further consideration" mean the statutory obligation is finished?

Or does it mean exactly what the words suggest — the petition is going forward for further consideration?

We've seen what happens when there is no ending

This isn't an abstract concern for us.

We've been here before.

In 2010 and 2011, we submitted the paperwork California told us was necessary to pursue a change in the ferret regulations. At Commission meetings we were told they had our petition and that it was being processed.

Then, in August 2011, we were told there weren't sufficient staff or resources to proceed.

There was no formal denial.

There was no final decision we could challenge.

The process simply stopped.

That history is one reason Petition 2025-003 matters so much to us. We don't want "further consideration" to become another bureaucratic waiting room with no exit.

And that's why I'm feeling better

I'm not predicting what will happen on October 2. Courts can interpret statutes differently, and the Attorney General has made its arguments for why the demurrer should be sustained.

But after months of briefs, exhibits and legal arguments, I've found it useful to return to the simplest question in the case:

The Fish and Game Commission itself says that accepted regulatory petitions are considered by the Commission and describes the actions it may take. Its petition information also explains the requirements for a petition to enter that process.

Petition 2025-003 entered that process.

Now, more than a year later, we're asking whether the State can leave it there without completing it.

On October 2, we'll finally get to put that question before the court.