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California Court of Appeal Affords Substantial Deference to Fish and Game Commission in Determining Whether Delisting Petitions May Move Forward

In January, the California Court of Appeal for the Third Appellate District upheld a decision by the California Department of Fish and Wildlife (CDFW) that a petition to delist coho salmon south of San Francisco from the list of endangered species in California did not contain sufficient scientific evidence to justify delisting. Deferring to CDFW, the Court of Appeal determined that coho salmon are native to the area south of San Francisco for purposes of the listing under the California Endangered Species Act (CESA) and that an endangered listing does not require that a population be an important component in the evolutionary legacy of the species. [Central Coast Forest Association, et al. v. California Fish & Game Commission, ___Cal.App.3d___, Case No C060569 (3rd Dist. Jan. 5, 2018).]

 

Background

In 1995, the California Fish and Game Commission (Commission) listed coho salmon in Scott and Waddell Creeks in Santa Cruz County as endangered under CESA. The Commission found that the number of coho salmon south of San Francisco had declined over 98 percent since the early 1960s. From 2000 to 2004, the Commission also considered adding coho salmon from the area north of San Francisco Bay to the Oregon border to the list of CESA endangered species. In 2004, the Commission amended the 1995 regulation listing coho salmon south of San Francisco by joining them with coho salmon north of San Francisco for purposes of listing. The Court of Appeal upheld the 2004 listing in a companion case.

Shortly before the Commission amended the 1995 regulation conjoining coho salmon north and south of San Francisco, Big Creek Lumber Company and the Central Coast Forest Association (petitioners) petitioned the Commission to delist the coho south of San Francisco. The petition requested that the Commission redefine the southern boundary of the Central California Coast coho salmon evolutionary significant unit to exclude coastal waterways south of San Francisco, effectively delisting the coho salmon south of San Francisco. The petition primarily challenged the facts underlying the 1995 decision to list the coho salmon south of San Francisco. In 2005, the Commission denied the delisting petition, which led to a remand and a challenge in the superior court. The petition eventually made its way to the California Supreme Court, which held that the petitioners could collaterally attack a determination by the Commission to list the coho salmon as endangered by filing a petition to delist the species, provided that new evidence was presented in the petition to demonstrate that the species did not quality for listing.

 

The Court of Appeal’s Decision

Under CESA, an endangered species is a “native species or subspecies…in serious danger of becoming extinct throughout all, or a significant portion, of its range.” Id. at 16. Petitioners argued that: 1) coho salmon were never native south of San Francisco because they never existed there prior to hatchery plantings; 2) coho are only found in streams south of San Francisco currently because of nonnative hatchery plantings; and 3) the coho south of San Francisco are not a unique species, subspecies, or part of an evolutionary significant unit. Id.

In order to prevail on their claims before the Commission, petitioners were required to present sufficient information to indicate that delisting “may be warranted.” Id. at *12. According to the court:

. . .‘may be warranted’ simply means ‘may be justified’ by criteria set forth in the statute and implied from the scientific evidence submitted in support of the petition and evaluated by [CDFW] staff in light of [CDFW’s] scientific information and expertise. Id.

The court further explained that:

. . .evidence is sufficient if it is credible and supports the petition, in this case delisting. In that sense it must be worthy of rational and relevant consideration. Id.

Thus, according to the court, the evidence contained in the delisting petition is sufficient to meet the “may be warranted” standard only if it is material to the criteria at issue, is credible, supports the petition, and, when weighed against CDFW’s written report, is strong enough to indicate that delisting may be justified. In turn, the court reviewed the Commission’s decision that the “may be warranted” threshold was not met based on a substantial evidence standard, which affords deference to the Commission’s decision and only allows the court to reverse the Commission’s decision if the evidence “clearly weighs against [it.]” Id. at *14. Petitioners offered four categories of evidence in support of their petition: archaeological evidence, historical accounts, natural conditions affecting the viability of coho south of San Francisco, and evidence of extensive hatchery plantings. Id. at *17.

 

Archaeological Evidence

Petitioners offered archaeological evidence based on studies relating to excavations of Native American refuse sites south of San Francisco that did not reveal salmonid remains. The Commission noted that petitioners omitted important qualifications to their claims found within the studies on which petitioners relied. The court agreed, noting that the inferences petitioners relied on were disputed by the very author of the studies on which the interferences were based. Id. at *38.

 

Historical Evidence

Historical accounts proffered by petitioners likewise did not convince the Commission that coho salmon were absent south of San Francisco. The Commission discounted the relevance of early newspaper articles cited by petitioners as non-scientific reports of already depressed salmonid populations. Considering a letter from the California Academy of Sciences ichthyology collections manager regarding the reliability of specimens in its possession, the Commission found that early scientific collection of coho produced clear evidence of historic coho populations south of San Francisco. The court agreed, noting that the specimens had been confirmed by experts to be coho salmon, regardless of a broken chain of custody argument advanced by petitioners. Id. at *39.

 

Environmental Evidence

Petitioners presented a host of environmental evidence relating to their position that the inhospitable conditions of the environment south of San Francisco could not support coho salmon populations. The Commission determined that the coho south of San Francisco are part of a larger metapopulation that includes population to the north; the structure complicates the assumptions of static survival estimates because these populations are connected by exchange; the three-year spawning cycle of coho also acts as an extinction buffer by retaining a stock of fish in the ocean; and the three-year life history, along with exchange among populations significantly improves the chances that coho could persist in the face of periodic poor ocean and freshwater conditions.

The Commission dismissed all of petitioners’ evidence relating to hatchery plantings and straying as “persuasive writing, not valid scientific evidence….” Id. at *35. In particular, the Commission found that petitioners had not provided evidence in the form of population size estimates or estimates of the ratio of hatchery to natural coho, or that favorable ocean conditions and human intervention had compensated for the two major droughts relied on by petitioners that would have extirpated the coho populations. Instead, the Commission favorably viewed CDFW’s stocking data and genetic diversity information as evidence that the presence of coho salmon south of San Francisco was not due merely to hatchery plantings or straying. The court agreed, finding that petitioners’ argument was based only on speculation that the self-sustaining population of coho was due to strays. Id. at *40. Moreover, the court observed that the CESA does not impose a requirement that a species must be self-sustaining in order to be considered native, and that persistence of the species is not a criteria for listing. Id. at **40, 42.

Finally, the court dismissed petitioners’ assertion that a listing of endangered requires that a population be an important component in the evolutionary legacy of the species. Id. at *52. The court held that the CESA does not impose such a requirement. Instead, evolutionary significant units as a whole must represent an important component in the evolutionary legacy of the species, not each individual population that makes up the evolutionary significant unit. Id. at *53.

 

Conclusion and Implications

This case demonstrates the potential difficulty a petitioner may have in challenging a Fish and Game Commission determination as to whether a CESA delisting petition may be warranted. Due to the substantial deference the Commission affords to CDFW and its staff, as well as the court’s substantial evidence standard, a petitioner seeking to delist an endangered species is likely in for an uphill battle. The court’s decision is available online at: http://www.courts.ca.gov/opinions/documents/C060569A.PDF

(Miles Krieger, Steve Anderson)