(Super. Ct. No. 07CS00851) APPEAL from a judgment of the Superior Court of Sacramento County, Gail D. Ohanesian, Judge.
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PUBLICATION
(Retired Judge of the Sacramento Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
The California Endangered Species Act (Fish and G. Code, § 2050 et seq.; hereafter CESA)*fn1 provides that a wild, native, species may be added to or removed from the regulation listing endangered species by a finding of the Fish and Game Commission (Commission) based on scientific information from the Department of Fish and Game (department)*fn2 . (§§ 2074.6, 2075.5.) The finding constitutes a final, quasi-legislative, determination to enact a regulation listing or delisting a species as endangered.*fn3 (§ 2070.) The standard for adding a species is that it is in serious danger of extinction. (§ 2062.) The standard for removing (delisting) a species is that its "continued existence is no longer threatened [with extinction] . . . ." (Cal. Code Regs., tit. 14, § 670.1, subd. (i)(1)(B), italics added.)
The procedure for adding or removing a species from the list of endangered species has two stages. It is initiated by a petition from an interested person or a recommendation from the department. (§§ 2071, 2072.7.) The petition or recommendation must contain scientific information relating to the present ability of the species to survive and reproduce. (§ 2072.3.) The petition is in effect an application for consideration of a proposal to adopt or amend a rule. In the first or preliminary stage the petition and the department's evaluation of it are submitted to the Commission for it to decide whether to accept the petition for consideration. (§§ 2073.5, 2074.2.) If accepted, the department submits a recommendation and written report to the Commission "based upon the best scientific information available . . . ." (§ 2074.6.) In the final stage, the Commission determines, based on the department's scientific report, whether the petitioned action is warranted. (§§ 2075, 2075.5.)*fn4 A final determination is judicially reviewable pursuant to Code of Civil Procedure section 1094.5. (§ 2076.)
The Commission added coho salmon in streams south of San Francisco (Santa Cruz County) to the list of endangered species in 1995 pursuant to a petition from the Santa Cruz County Fish and Game Advisory Commission. The Commission joined them with coho salmon north of San Francisco (to Punta Gorda) in 2004 as members of the Central California Coast (CCC) evolutionary significant unit (ESU)*fn5 pursuant to a petition from the Salmon and Steelhead Recovery Coalition.
The respondents Central Coast Forest Association and Big Creek Lumber Company own and harvest timber from lands in the area of the coho salmon spawning streams in the Santa Cruz Mountains. The respondent Big Creek Lumber Company received notice of the 1995 proceeding and participated in the 2004 proceeding but did not seek review of the final decision in either case. However, just before the 2004 decision became final, the respondents filed a petition seeking to redefine the southern boundary of the CCC ESU to remove (delist) coho salmon in coastal streams south of San Francisco from the register of endangered species.*fn6 The respondents sought review in the superior court, which ruled that the petition should be accepted for consideration. The court directed the Commission to re-examine the petition. The Commission did so and rejected the petition a second time. The trial court again ruled for the respondents and the Commission appeals from that decision.
The respondents do not claim that the coho salmon became extinct after the 1995 decision of the Commission, the regulatory standard for delisting. Rather, their delisting petition seeks to show that there was no basis for the Commission's 1995 finding that coho salmon is an endangered species. The respondents assert that there never were wild, native, coho salmon south of San Francisco and that the 1995 decision was "undertaken without benefit of the information in the 2004 Petition [and] proceeded on the false premise that the native range of coho salmon extended below San Francisco." They argue that "[t]he Petition may be understood . . . as demonstrating that the presumption [that wild, native, coho existed] which backed up the 1995 listing was simply wrong." (Italics omitted.)
The petition fails at the outset because a petition to delist a species may not be employed to challenge a final determination of the Commission. The delisting procedure is not a means by which new information may be submitted on the merits of a final determination. The exclusive means of judicial review of the merits is by administrative mandamus. (§ 2076.) Any other conclusion would undermine the finality of the administrative decision and bypass the standard by which a delisting decision is to be judged. Since a delisting petition may not be employed at all to challenge a final decision of the Commission it need not be reviewed at the preliminary stage.
We shall reverse the judgment of the superior court.*fn7
A. The 1995 Commission Decision
In 1993 the Santa Cruz County Fish and Game Advisory Commission filed a petition requesting the listing of coho salmon in Scott and Waddell creeks in Santa Cruz County south of San Francisco as endangered. In 1994 the Commission designated the coho salmon as a candidate species. (§ 2068.) It provided notice thereof to respondent Big Creek Lumber Company. The department conducted a status review and prepared a rulemaking file for the Commission setting forth scientific information showing that the coho salmon was an endangered species and recommending that it be listed as endangered.
The Commission accepted the recommendation and enacted a rule listing the coho salmon as endangered, effective December 31, 1995. (Cal. Code Regs., tit. 14, § 670.5, subd. (a)(2)(N), Register 95, No. 48 (December 31, 1995).) The Commission's determination states it was "based on the best available scientific information regarding the distribution, abundance, biology and nature of threats to coho salmon south of San Francisco Bay . . . ." The Commission found that "[c]oho salmon numbers south of San Francisco Bay have declined over 98 percent since the early 1960's and currently are restricted to one remnant population in Waddell Creek, one small naturalized (hatchery-influenced) population in Scott Creek, and a small hatchery-maintained, non-native run in the San Lorenzo River, Santa Cruz County. There is minimal possibility of successful natural expansion of the remnant Waddell and Scott Creek populations to neighboring drainages due to the functional extinction of two of the three brood year lineages, inadequate numbers of adult coho to naturally produce the necessary founder populations for successful recolonization of streams, loss of genetic and population viability, and general lack of secure adjacent suitable habitat."
The department recommended recovery measures. "The first priority should be to set minimum flows necessary to sustain the coho salmon on Scott and Waddell Creeks. . . . [¶] Following the establishment and maintenance of minimum flows, restoration of coho salmon habitat should be initiated to produce enough habitat to allow for more juvenile coho to be reared in Scott and Waddell Creeks. Instream habitat restoration in Scott and Waddell Creeks is a viable option [because] County and State regulations, land ownership patterns, and improvement in present land use practices can bring about better control of accelerated erosion in the watershed."
The Commission published a notice of its determination and distributed it to a list of interested persons including respondent Big Creek Lumber Company.
B. The 2004 Commission Decision
Five years later, in July 2000, the Commission received a petition from the Salmon and Steelhead Recovery Coalition to add coho salmon from the area north of San Francisco Bay to the Oregon border to the list of endangered species. In November of 2000, the department recommended to the Commission that it accept the petition for consideration. In April of 2001 the Commission held a hearing and took testimony from numerous persons including a representative of respondent Big Creek Lumber Company. In April of 2002 the department submitted a status report identifying two groups of coho salmon, one from Punta Gorda to the Oregon border, referred to as the Southern Oregon/Northern California Coasts ESU (SONCC ESU) and the other from south of Punta Gorda to the San Lorenzo River in Santa Cruz County, referred to as the CCC ESU.
The department based its determination on the scientific analysis of the reproductive isolation and genetic differences between the two groups. In April of 2002 the department submitted a written report on the status of the species to the Commission as required by section 2074.6. On May 28, 2002, the department recommended to the Commission that it "list coho salmon north of Punta Gorda (Humboldt Co.) as a threatened species and coho salmon south of Punta Gorda (Humboldt Co.) . . . as an endangered species . . . ." Coho salmon south of Punta Gorda were joined in the report with coho salmon south of San Francisco as the CCC ESU. On August 30, 2002, the Commission found "that coho salmon north of Punta Gorda and coho salmon south of Punta Gorda warrant listing as [respectively] threatened and . . . endangered," but delayed rulemaking for one year while the department prepared a recovery plan. On February 11, 2004, the Commission proposed a rule to "add the populations of coho salmon between San Francisco Bay and Punta Gorda, California, to the [California Code of Regulations, title 14,] Section 670.5 list as an endangered species . . . ." On February 25, 2004, the Commission staff issued a notice of intent to begin the "rulemaking process to add coho salmon north of Punta Gorda and coho salmon south of Punta Gorda to the list [respectively] of threatened and endangered species."
On August 5, 2004, the Commission amended the 1995 regulation that listed coho salmon south of San Francisco as endangered by joining them with coho salmon north of San Francisco. The rule, to be found at California Code of Regulations, title 14, section 670.5, subdivision (a)(2)(N), declares that the following species are endangered: "Coho salmon . . . south of Punta Gorda (Humboldt County), California." The context of the regulation makes clear that south of Punta Gorda included the streams south of San Francisco, the subject of the 1995 final determination of the Commission.
As noted, this court upheld the 2004 listing in California Forestry Assn. v. California Fish & Game Commission, supra, 156 Cal.App.4th 1535.
C. The Delisting Petition
Although the respondent Big Creek Lumber Company was given notice of the 1995 proceeding and participated in the 2004 proceeding it did not seek review of the Commission's findings in either matter pursuant to Code of Civil Procedure section 1094.5. Rather, the respondents initiated a separate, delisting proceeding asking that the Commission redefine the southern boundary of the CCC ...