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Central Coast Forest Association v. Fish and Game Commission

Supreme Court of California

February 27, 2017

CENTRAL COAST FOREST ASSOCIATION et al., Plaintiffs and Respondents,
v.
FISH AND GAME COMMISSION, Defendant and Appellant.

         Sacramento County Super. Ct. No. 07CS00851 Ct. App. 3 C060569 Gail D. Ohanesian Judge [*]

          Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Mary E. Hackenbracht, Kathleen A. Kenealy and Robert W. Byrne, Assistant Attorneys General, Sara J. Russell, Gavin G. McCabe, Tara L. Mueller and Cecilia L. Dennis, Deputy Attorneys General, for Defendant and Appellant.

          Deborah A. Sivas, Robb W. Kapla and Molly Loughney for Environmental Law Clinic, Center for Biological Diversity, Turtle Island Restoration Network, California Trout, Central Coast Forest Watch and Lompico Watershed Conservancy as Amici Curiae on behalf of Defendant and Appellant.

          Murphy & Buchal and James L. Buchal for Plaintiffs and Respondents.

          Damien M. Schiff and Anthony L. Francois for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Respondents.

          Chin, J.

         The California Endangered Species Act (CESA or the Act) (Fish & G. Code, § 2050 et seq.)[1] directs the Fish and Game Commission (Commission) to “establish a list of endangered species” (§ 2070), which “means a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease” (§ 2062). In 1995, the Commission added to the list coho salmon (coho) in streams south of San Francisco. In 2004, it joined this coho population with coho from San Francisco north to Punta Gorda, and since then has included “Coho salmon... south of Punta Gorda (Humboldt County)” in its list of endangered species. (Cal. Code Regs., tit. 14, § 670.5, subd. (a)(2)(N).)[2]

         In this proceeding, plaintiffs and respondents Central Coast Forest Association (Central Coast) and Big Creek Lumber Company (Big Creek) (collectively “plaintiffs”) filed a petition asking the Commission to “redefine the southern boundary of [its coho listing] to exclude coastal streams south of San Francisco, effectively delisting coho salmon south of San Francisco from the register of endangered... species.” They asserted that, because these fish were “artificially introduced” into the area and have since been “hatchery maintained, ” they are not “native” within the meaning of CESA and “do not qualify for listing.” The Court of Appeal did not reach the merits of plaintiffs' argument, holding that the petition failed for a procedural reason: it attacked the Commission's final listing decisions in 1995 and 2004 as having no basis, and “a petition to delist a species may not be employed to challenge a final determination of the Commission.”

         Consistent with the Commission's concession that the Court of Appeal erred, we reverse. We remand the matter to the Court of Appeal for consideration of the petition's merits, rather than address them here in the first instance.

         Factual, Procedural, and Statutory Background

         CESA implements “the policy of the state to conserve, protect, restore, and enhance any endangered species or any threatened species and its habitat.” (§ 2052.) These species, the Act declares, “are of ecological, educational, historical, recreational, esthetic, economic, and scientific value to the people of this state, and the conservation, protection, and enhancement of these species and their habitat is of statewide concern.” (§ 2051.)

         Under CESA, “a native species or subspecies” qualifies as “endangered” if it “is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease.” (§ 2062.) A “native species or subspecies” qualifies as “threatened” if it is “not presently threatened with extinction, ” but “is likely to become an endangered species in the foreseeable future in the absence of... special protection and management efforts.” (§ 2067.) It is the Commission's duty to “establish a list of endangered species and a list of threatened species, ” and to “add or remove species from either list if it finds, upon the receipt of sufficient scientific information... that the action is warranted.” (§ 2070.) The Commission's list of endangered and threatened species appears in section 670.5 of title 14 of the California Code of Regulations.

         Any “interested person may petition the [C]omission to add a species to, or to remove a species from” these lists. (§ 2071.) A multi-step process exists for processing these petitions. First, the Department of Fish and Game (Department), upon a referral from the Commission (§ 2073), “evaluate[s] the petition on its face and in relation to other relevant information the [D]epartment possesses or receives, ” and prepares a “written evaluation report” that includes a recommendation as to whether the Commission should “reject[]” the petition or “accept[] and consider[]” it, depending on whether “there is sufficient information to indicate that the petitioned action may be warranted.” (§ 2073.5, subd. (a). italics added.) During this evaluation, any “person may submit information to the [D]epartment relating to the petitioned species.” (§ 2073.4, subd. (a).) Second, the Commission, after “consider[ing] the petition, the [D]epartment's written report, [and] written comments received, ” determines whether the petition “provides sufficient information to indicate that the petitioned action may be warranted.” (§ 2074.2, subd. (e)(1) & (2), italics added.) Upon finding that the petition does not provide such information, the Commission rejects it. (§ 2074.2, subd. (e)(1).) Upon finding that the petition does provide such information, the Commission “accept[s]” it “for consideration.” (§ 2074.2, subd. (e)(2).) Third, as to an accepted petition, the Department then conducts a more comprehensive “review of the status of the [petitioned] species” and produces a written report, “based upon the best scientific information available to the [D]epartment, which indicates whether the petitioned action is warranted.” (§ 2074.6.) Finally, after receiving the Department's report, the Commission determines whether the petitioned action “is warranted” or “is not warranted.” (§ 2075.5, subd. (e).)

         In December 1993, the Commission received a petition “to list the coho salmon populations south of San Francisco Bay... as a threatened species” under CESA. In June 1995, the Commission found that the information in the petition “warrant[ed] listing that species as endangered” instead of only threatened. It subsequently amended Regulations section 670.5 to declare “Coho salmon... south of San Francisco ...


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