Delisting Process Can Be Used To Challenge Original Species Listing
- William Fulton
- Feb 28, 2017
- 4 min read
Reversing an appellate court decision, the California Supreme Court ruled Monday that a “delisting petition” may move forward in an effort to de-list a species under the California Endangered Species Act, even if the petition does not contain any new information that emerged after the original listing of the species. “ o provision of CESA directly establishes that the Commission may not base a decision to delist on new evidence showing that the listed species does not qualify for listing,” wrote Justice Ming Chin for a unanimous court. In particular, Chin noted, Section 2077, subd. (a) of the Fish & Game Code requires the Department of Fish 7 Wildlife to review the status of endangered species every five years and states: “Notwithstanding any other provision of this section, the ommission or the epartment may review a species at any time based upon a petition or upon other data available to the epartment and the ommission.” The opinion is a victory for the lumber industry, which is trying to de-list the coho salmon in certain parts of California. The case arose from an attempt by the Central Coast Forestry Association and Big Creek Lumber Company to de-list the coho salmon, but only in areas south of San Francisco. (the coho salmon is also listed in areas north of San Francisco.) The Third District Court of Appeal ruled the other way on the issue, concluding that a provision contained in the ESA’s implementing regulations require that a delisting petition be “directed to events that occur after the listing of the species.” The case emerged from the Fish & Game Commission’s 1995 decision to list the coho salmon south of San Francisco as endangered. After the Commission found the coho salmon north of San Francisco to be endangered seven years later, the Central Coast Forestry Association and Big Creek began challenging the 1995 decision on several fronts, one of which was that “a petition to delist a species may not be employed to challenge a final determination of the Commission.” The commission’s decisions were initially challenged by the California Forestry Association, which lost its case in 2007. (California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535.) Central Coast and Big Creek filed a separate lawsuit claiming that the listing of the coho salmon south of San Francisco violated the ESA’s requirement that endangered species be indigenous. The plaintiffs claimed that the coho was not native to streams south of San Francisco. After lengthy proceedings in front of the Fish & Game Commission and in court, Sacramento County Superior Court Judge Gail D. Ohanesian ruled that the Commission “has authority and discretion to decline to provide CESA protection to coho populations south of San Francisco if they did not have a historical presence there and if their current presence is not the result of natural expansion of their range.” On appeal, the Third District Court of Appeal ruled that administrative mandamus was the only means available to review a final decision on listing by the Fish & Game Commission and that a delisting petition could only be used to address the status of a species at the time the delisting petition was filed – not to challenge a final ruling from the past. The Supreme Court reversed. Noting that the appellate court’s ruling was based primarily on a regulation, not the actual statute, the court concluded that the Fish & Game Code provides three ways for a species to be delisted: First, “an interested person may petition the omission to . . . remove a species from” the list of endangered species (§ 2071); Second, “he epartment may, in the absence of a petition from an interested party, recommend to the ommission that it . . . remove a species from” the list (§ 2072.7); and Third, “he epartment shall review species listed as an endangered species . . . every five years to determine if the conditions that led to the original listing are still present” (§ 2077, subd. (a)). The court noted that the third code provision permits the Fish & Game Commission to rely on a petition or any available data in considering the five-year review. The Court of Appeal relied on Fish & Game Regulation 670.1, which says that de-listing is warranted “if the Commission determines that its continued existence is no longer threatened” – implicitly suggesting that de-listing can occur only if conditions have changed since the original commission decision. “We do not agree with the Court of Appeal that this provision’s use of the phrase “no longer threatened” was intended to preclude delisting where new evidence shows that the species never qualified as endangered, and to permit consideration only of ‘events that occur after the listing of the species,” Chin wrote for the court. In light of the considerations discussed above — the Act’s language, structure, and legislative history — the language of the regulation cannot carry the weight the Court of Appeal gave it.” The Case: Central Coast Forest Association v. Fish & Game Commission, No. S208181 (February 27, 2017) The Lawyers: Tara L. Mueller, Deputy Attorney General, tara.mueller@doj.ca.govJames Buchal, Murphy & Buchal, jbuchal@mbllp.com