By Leslie Walker and Nathan Jones

A recent case published by the Court of Appeal, Third Appellate District has struck down a decision by the California Fish and Game Commission (“Commission”) to deny listing the California tiger salamander (“salamander”) as a candidate species for listing under the California Endangered Species Act (“CESA”). In Center for Biological Diversity v. California Fish and Game Commission (2008) 166 Cal.App.4th 597, the court ruled that the Commission must accept a listing petition of a candidate species if the information would “lead a reasonable person to conclude there is a substantial possibility” that the species could be listed. Placing a species on the candidate list triggers a review by the Department of Fish and Game (“DFG”) to determine whether permanent listing under the CESA is required.

The Center for Biological Diversity (“CBD”) initially petitioned the Commission for candidate listing under the CESA in 2006. Under the CESA a petition for listing must be accepted for consideration if it is supported by sufficient information to lead a reasonable person to conclude there is a substantial possibility the requested listing could occur. (Fish & G. Code § 2074.2.). The term "sufficient information" means that amount of information, when considered with the DFG’s written report and the comments received, that would lead a reasonable person to conclude the petitioned action may be warranted. Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1108.

The Commission held a hearing in which outside scientific studies, State Fish and Game Department analyses, federal studies, and expert testimony presented to the Commission identified numerous objective habitat conditions that suggest the salamander is in imminent danger of being threatened or extinct. In addition, the salamander had been listed as either threatened or endangered under the Federal Endangered Species Act. Objectors to the hearing petition presented contrary evidence that salamander populations were difficult to measure, that the species may be more numerous than expected or reported, and that existing populations were not in danger of immediate threat because of existing protections for their habitat areas, which include vernal pools and wetlands. The Commission published its decision not to list the salamander as a candidate species, citing as its main reason the objector’s criticisms of the sufficiency of the petition and supporting information. CBD filed a petition for writ of mandate. The lower court sustained the writ and ordered the Commission to list the salamander as a candidate species. The Commission appealed.

After reviewing the facts de novo, the appellate court found that the “discretion” the Commission possesses is rather limited. Once a petition makes a prima facie showing that a species in threatened, the Commission must accept the candidate species listing petition “unless the countervailing information and logic persuasively, wholly undercut some important component of that prima facie showing…if the information clearly would lead a reasonable person to conclude that there is a substantial possibility that the listing could occur, rejection of the petition is outside the Commission’s range of discretion.” In its overall judgment, the court ultimately concluded that the information presented to the Commission represented a prima facie showing that the California tiger salamander species is a threatened or endangered species within the CESA. It criticized the Commission’s findings, concluding that the Commission relied too heavily on the objector’s arguments, which, according to the court, were insufficient to rebut the prima facie showing. Rather, the Commission’s seizure on subordinate issues raised by the objectors to justify their decision was improper:

A counter showing or argument that raises only a conflicting inference about a portion of the showing in favor of the petition, unless that counter inference is very strong, will not, for an objective, reasonable person, diminish the possibility that listing could occur to an “insubstantial” level.

Further finding that the Commission either discounted or ignored significant information that had been presented, and failed to address that information in its decision, the court upheld the lower court’s ruling that rejected the Fish and Game Commission’s claim that there was insufficient proof that the salamander was imperiled. Rather than send the decision back to the Commission for further deliberation, the court ordered the Commission to directly advance the tiger salamander to candidacy in light of the evidence of the species’ imperiled status.

This is only the second case to address the scope of the Commission’s discretionary power under the candidate species listing provisions of the CESA. Natural Resources Defense Council v. Fish & Game Comm. (1994) 28 Cal.App.4th 1104. As such, it appears that in overruling the Commission’s decision-making and limiting the scope of discretion of the Commission, the Third District Court of Appeal has set a low minimum threshold for listing of candidate species as potentially threatened or endangered. The results of this case may require, if the salamander is permanently listed, an incidental take permit from the Department of Fish and Game for numerous activities. Based on the opinion presented at the Commission, this could mean designating critical habitat at 2,100 feet around wetlands, vernal pools, and other locations to allow for sustainable species existence.

Leslie Walker is an associate at Abbott & Kindermann, LLP and Nathan Jones is a law clerk with the firm. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.