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Fish & Game Commission Ordered To Consider Salamander Protection

The California Fish and Game Commission must consider listing the California tiger salamander on the state endangered species list, the Third District Court of Appeal has ruled.

The court determined that the Commission should have accepted a petition filed by the Center for Biological Diversity (CBD) and considered adding the salamander to the list of species protected by the California Endangered Species Act (CESA). "The Commission acted outside the range of its discretion in denying the petition," the court concluded.

Although the ruling was a victory for the environmental group, it was a blow to the development industry, landowners and local governments that for years have fought restrictions and struggled to accommodate the amphibian (see CP&DR Environment Watch, February 2006, July 2004).

California tiger salamanders historically lived throughout the Central Valley and the foothills of both the Coast Range and the Sierra Nevada. The species extended from Colusa County in the north to Tulare and Santa Barbara counties in the south. The salamanders breed in large seasonal ponds (vernal pools) and spend the rest of their lives within about a quarter mile of their breeding ponds. However, about 80% of the state's vernal pools have been lost to farming or urban development. Several of the salamander's distinct population segments are listed under the Federal Endangered Species Act (ESA).

Five years ago, CBD submitted its petition requesting the listing for the California tiger salamander. Under the state law, the Department of Fish and Game evaluates a petition and other relevant information, and prepares a report and recommendation for the Fish and Game Commission. That panel then decides whether to accept the petition and commence a 12-month process to decide on the listing, or to reject the petition.

The department staff recommended the Commission accept the petition. During a 2004 hearing, Brad Shaffer, a University of California, Davis, ecology professor and salamander researcher, testified about threats to the species, including hybridization with an imported species of salamander, loss of habitat, and competition and predation by nonnative fish and bullfrogs. Shaffer estimated there were about 4,500 breeding female California tiger salamanders remaining.

The Central California Tiger Salamander Coalition, composed of development and business interests, argued against the petition. The coalition countered much of Shaffer's testimony about habitat loss, estimated the species population was as high as 700,000 to 800,000, and argued the species had adequate protection.

The Commission voted 3-2 to reject the petition. It found there was insufficient information on population trends, there was credible evidence the population was not declining, testimony on loss of native wetland habitat was unpersuasive, there was insufficient information about the degree and immediacy of threats to the species, and existing protections through the federal Endangered Species Act, the Clean Water Act, the state's Porter-Cologne Act and the California Environmental Quality Act were adequate.

The CBD then sued, and Sacramento County Superior Court Judge Lloyd Connelly in December 2006 ruled against the Commission. On appeal, a unanimous three-judge panel of the Third District upheld Connelly's decision.

Under the Fish and Game Code and Natural Resources Defense Council v. Fish & Game Com., (1994) 28 Cal.App.4th 1104, the standard for accepting a petition for consideration is "sufficient information to indicate that the petitioned action may be warranted," the court noted. The term "sufficient information" is defined as that which "would lead a reasonable person to conclude the petitioned action may be warranted." The term "may be warranted" means that there is a "substantial possibility" the listing could occur. The term "substantial possibility" means a greater chance than a "reasonable possibility." The court found that the CBD petition and supporting information easily passed these tests.

"[T]he information supporting the petition presents a prima facie showing that the California tiger salamander species is a threatened or endangered species within the meaning of the CESA," Third District Justice Kathleen Butz wrote. "The points raised by the Commission, concerning the strength of the information in favor of the petition, would not lead the objective, reasonable person to conclude there is no substantial possibility that listing could occur."

The coalition countered only some of the points in support of the petition, the court determined. In addition, the Commission did not address the threat of hybridization or show why a dual listing under CESA and the federal ESA was not warranted in this case when 177 species already have dual protection, the court concluded.

The Commission has asked the state Supreme Court to overturn the Third District. Assuming that does not happen, the Commission will have one year to decide whether to list the salamander as threatened or endangered. In the meantime, the species must receive the same level of protection the listing would provide.

The Case:
Center for Biological Diversity v. California Fish and Game Commission, No. C055059, 08 C.D.O.S. 11650, 2008 DJDAR 13889. Filed September 2, 2008.
The Lawyers:
For CBD: Amy Minteer, Chatten-Brown & Carstens, (310) 314-8040.
For the commission: William Cunningham, attorney general's office, (916) 445-9555.