By Cori Badgley
In the recent case of California Forestry Association v. California Fish & Game Commission (2007) 2007 Cal. App. LEXIS 1896, the Court of Appeal for the Third Appellate District wrestled with the treatment of subspecies and species range in the California Endangered Species Act (“CESA”).
This case arose out of the listing of two types of coho salmon under CESA that are evolutionarily significant units but are scientifically considered the same subspecies. “Evolutionarily significant units” means that there is “genetic discontinuity/transition” among the different units. The first type of coho salmon is the Central California Coast coho evolutionarily significant unit (“the Central Coast unit”), and the second is the Southern Oregon/Northern California Coast coho evolutionarily significant unit (“the Southern Oregon/Northern California Coast unit”). The California Fish & Game Commission (“CFGC”) determined that the Central Coast unit should be listed as an endangered species and that the Southern Oregon/Northern California Coast unit should be listed as a threatened species. Among other issues raised, plaintiffs argued that the two types of coho salmon are not separate “subspecies” under CESA and that the species’ range that is evaluated under CESA extends past the borders of California to anywhere the species exists. The appellate court disagreed, holding that the term “subspecies” includes evolutionarily significant units and the term range refers to a species’ California range, not worldwide.
Plaintiffs argued that since CESA only used the terms species and subspecies, the logical conclusion is that any scientific unit smaller than a subspecies is excluded from coverage. If plaintiffs’ logic were followed, then the two coho salmon types would have to be evaluated as one subspecies, coho salmon, rather than as two distinct types. If this occurred, it is more likely that the coho salmon subspecies would not be listed, since the total population would be much greater if you combined the two evolutionarily significant units. Plaintiffs based this argument on two grounds: if the strict scientific definition of subspecies is followed, subspecies is distinct from an evolutionarily significant unit; and the Federal Endangered Species Act (“FESA”) on which CESA was based specifically includes “distinct population segments” in its definition of species. According to plaintiffs, the California legislature intended a narrower definition by not including “distinct population segments” in its definition of species. In rejecting plaintiffs’ arguments, the court relied heavily on the long-standing interpretation applied by the CFGC that subsets of subspecies are included in the definition of species. The court noted that CESA should be given a liberal construction and the CFGC’s interpretation was consistent with construing the law liberally. Additionally, the court found that the legislature’s failure to include FESA’s definition of species, in light of the goal of CESA, was intended to expand the definition under CESA beyond that of FESA. Therefore, the CFGC acted lawfully when it listed the two coho units as threatened and endangered, respectively.
CESA defines an endangered or threatened species as a species that is in danger “throughout all, or a significant portion, of its range.” (Id. at 17.) Once again, the plaintiffs looked to FESA in making arguments concerning the interpretation of CESA. This time plaintiffs argued that the same language under FESA has been held to mean major geographical areas, which do not have to adhere to national or state boundaries, and therefore, “range” under CESA has the same meaning. Plaintiffs also argued that CESA’s goal is to prevent extinction, and this goal is served by looking beyond California’s boundaries to evaluate the danger of extinction. The court again found that plaintiffs’ logic was flawed. According to the court, the statute’s purpose is to prevent extinction of species that are “native” to California, and the CFGC’s interpretation that range is confined to California furthers this purpose by ensuring that population levels are maintained within the state. In light of the statute’s purpose and the deference rightfully given to the CFGC, the court held that the term range under CESA means the species’ California range.
In the end, the court disregarded all of plaintiffs’ arguments based on the interpretation of FESA. The court emphasized that although similar, CESA and FESA are two different statutes, and CESA must be interpreted in light of its purpose to protect species within California.
Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.