A ruling that could result in more plant and animal listings under the California Endangered Species Act will stand. The state Supreme Court on February 13 declined to review a decision by the Third District Court of Appeal, which held that "evolutionary significant units" of a species may qualify for protection, and that state officials need only consider a species' range within California.
The California Forestry Association and the California Chamber of Commerce had asked the state Supreme Court to overturn the Third District decision. However, only Justice Marvin Baxter voted to accept the case.
"[T]he court's decision could expand the pool of species eligible for listing to include any population of the species irrespective of the size of that population, the ecological significance of that population, and the relationship of that population to the viability of the species as a whole," Paul Weiland, a Nossaman, Guthner, Knox & Elliott attorney who frequently represents the development industry, wrote in an analysis of the decision.
The case concerned a California Fish and Game Commission decision regarding coho salmon. Nearly eight years ago, 10 environmental groups calling themselves the Salmon and Steelhead Recovery Coalition petitioned the Commission to list coho salmon north of San Francisco Bay as endangered under the California Endangered Species Act (CESA). The Department of Fish and Game, which advises the Commission, separately evaluated two coho units: the Southern Oregon/Northern California Coast evolutionary unit, which populates waters from Punta Gorda (on the Humboldt County coast) into southern Oregon, and the Central Coast unit, which lives between Punta Gorda and Monterey Bay. The department found that both units qualified for protected status, and in August 2002 the Commission designated the Southern Oregon/North California Coast unit as threatened, and the Central Coast unit as endangered. After the department prepared a recovery plan, the Commission in August 2004 amended state regulations to reflect the listings. The recovery plan called for measures such as decreased pumping from rivers by farmers, and less logging near waterways.
In June 2005, the Forestry Association, the Chamber, the California Cattlemen's Association and other groups challenged the listings in court. Sacramento County Superior Court Judge Gail Ohanesian ruled for the Commission, and the Third District upheld that decision on appeal.
The listing opponents had four primary arguments: CESA permits protection of species and subspecies, but not "evolutionary significant units;" the Commission failed to consider coho salmon range in Oregon; the Commission did not adequately consider the role of hatchery salmon; and the Commission violated the Administrative Procedures Act.
The first two arguments — concerning evolutionary significant units, and species' range — were of primary importance. Property rights groups in California and nationally have repeatedly contested the definition of evolutionary significant units and their role in species protection regulations. The Commission argued that its listing of evolutionary significant units comported with the 1984 version of CESA, which provided automatic protection to more than a dozen variety of plants whether or not they comprised a species or subspecies. The court sided with the Commission.
"[D]eference to the Commission and the department's interpretation of the term ‘species or subspecies' as including evolutionary significant units is appropriate here given their central roles in the listing process, their scientific expertise, and their longstanding adherence to the policy that the CESA allows listings of evolutionary significant units," Justice Ronald Robie wrote for the Third District.
Regarding the coho salmon's range, the court said the Commission was under no obligation to consider the coho's entire geographic range. Listing opponents contended the Commission had to account for the coho's Oregon habitat. Although the statute is ambiguous, the court ruled, "It is reasonable to infer that the CESA's focus is protecting species within the state, which is the extent of the state's regulatory authority."
The court quickly dismissed the hatchery coho salmon question by noting that § 45 of the Fish and Game Code defines fish to mean "wild fish."
Concerning the Administrative Procedures Act, the listing opponents contended the Commission's ruling was unnecessary and duplicative because coho salmon have been protected for years by the federal Endangered Species Act, and other federal and state laws (although the Bush administration has taken numerous steps to reduce salmon protection). The court ruled that the Commission's decision was not unnecessary because CESA implementation requires the adoption of regulations. The Commission's listing of the species was not duplicative because CESA and the federal ESA do not serve the same function, the court ruled. The CESA is concerned only with protecting a species in California. Plus, the two acts have different provisions for allowing "incidental take" of protected species, the court noted.
The Case:
California Forestry Association v. California Fish and Game Commission, No. C053866, 07 C.D.O.S. 13318, 2007 DJDAR 17252. Filed November 20, 2007.
The Lawyers:
For the Forestry Association: Damien Schiff, Pacific Legal Foundation, (916) 419-7111.
For the Commission: Tara Mueller, attorney general's office, (510) 622-2100.
