The Supreme Court of California recently ruled that under the California Endangered Species Act (CESA), plaintiffs may use a delisting petition, supported by new evidence, to challenge a prior decision by the California Fish and Game Commission to list an endangered species—even in the absence of changes that occur after the listing of the species. The decision recognizes that commission listing decisions should reflect evolving scientific understanding.

Background

The CESA directs the commission to establish a list of endangered species and a list of threatened species. CESA also requires the commission to add or remove species from either list if it finds that such an action is warranted based on sufficient scientific information. Under Section 2071 of the Fish and Game Code, any “interested person may petition the [C]ommission to add a species to, or to remove a species from” the lists. A multistep process exists under the statute for processing these petitions.

In 1995, the commission added coho salmon in streams south of San Francisco to the endangered species list. In 2004, it added coho salmon from San Francisco north to Punta Gorda as endangered species.

Plaintiffs Central Coast Forest Association and Big Creek Lumbar Company petitioned the commission to delist just coho salmon south of San Francisco from the register of endangered species. Plaintiffs claimed that because the fish were artificially introduced into that area and had since been hatchery maintained, they were not “native” within the CESA’s meaning and therefore did not qualify for listing. The commission rejected the petition, and the plaintiffs sought writ relief in the superior court. The superior court found that the record did not contain substantial evidence to support the commission’s decision.

The court of appeal did not reach the merits of the plaintiffs’ arguments. Instead, it reversed the superior court’s decision and held that the plaintiffs’ petition failed on procedural grounds: the petition 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.” 

California Supreme Court’s Central Coast Forest Assn. v. Fish & Game Co. Decision

The Supreme Court determined that “no 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.”

The Supreme Court noted that the CESA contains three different mechanisms for revisiting listing decisions: (1) “an interested person may petition the [C]ommission to . . . remove a species from” the list of endangered species (§ 2071); (2) “[t]he [D]epartment may, in the absence of a petition from an interested party, recommend to the [C]ommission that it . . . remove a species from” the list (§ 2072.7); and (3) “[t]he [D]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)).  In particular, the third provision states, “Notwithstanding any other provision of this section, the [C]ommission or the [D]epartment may review a species at any time based upon a petition or upon other data available to the [D]epartment and the [C]ommission.” (§ 2077, subd. (d), emphasis added.)

The Supreme Court concluded that these provisions allow the use of a delisting petition to challenge a listing decision based on new evidence. By contrast, the court of appeal, in concluding that a delisting petition is an improper vehicle for challenging an “original listing” decision of the commission, relied not on the statute itself, but on the commission’s delisting regulation. The Supreme Court found that the commission’s regulation was not “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.’”

The Supreme Court remanded the matter back to the court of appeal to consider the petition’s merits, including (1) whether the term “native species” in the definition of “endangered species” (§ 2062) means “native to the area” in which the species is listed, as plaintiffs assert, or “indigenous to California,” as the commission claims; and (2) under what circumstances, if any, CESA permits the commission to delist only a portion of the listed species—here, coho salmon south of San Francisco.

© 2017 Perkins Coie LLP