Tag: Department of Fish and Wildlife

Salmon Advocates Reel in Victory under CESA in Third District

In Central Coast Forest Association v. Fish and Game Commission (2018) 2 Cal.5th 594 (Central Coast Association II), on remand from the Supreme Court, the Third District Court of Appeal ruled in favor of the Fish and Game Commission, upholding the Commission’s denial of a request to move the southern boundary of Central California Coast salmon habitat range, and so delist the population occurring in that range as an endangered species. The court found that the Commission acted within its discretion when it determined that the southern evolutionary significant unit (ESU) was not a separate species from the threatened northern coho salmon, that the southern coho salmon ESU was native to California, and that it should be protected wherever it is currently found. The California Endangered Species Act (CESA) promotes the protection of wildlife, and the Legislature affords the Commission substantial deference in how CESA is interpreted to achieve that goal.

Factual and Procedural Background

In 1995 the Commission listed the southern coho salmon ESU as endangered, due to habitat loss and degradation. In 2000, the Commission amended this ruling, and additional populations of coho salmon occurring north of San Francisco were listed as either endangered or threatened in different regions.

This case is the culmination of two prior appeals in the Third District, and a ruling by the California Supreme Court, in Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594 (Central Coast Association I). The petitioner is an association of timber companies that operate in areas where the southern coho migrates and spawns. Two months before the Commission’s 2004 amended listing decision, petitioner Big Creek Lumber requested that the Commission consider its petition to delist the southern ESU, alleging that new evidence had been made available since the Commission’s 1995 determination, and so the 1995 listing was improper.

Based on the Department of Fish and Wildlife’s (DFW) findings and the Commission’s independent analysis, the Commission denied the delisting request in 2005. The petitioners challenged that decision in superior court, which remanded the matter back to the Commission. The Third District again reversed the judgment on appeal. On remand, the trial court again found for the petitioners, and was once again reversed by the Third District on appeal. The Third District then held that the petitioners committed a procedural error, as a delisting petition must be directed at events that occur after the decision to list a species, and not on new evidence that the original listing decision was improper. This holding was reversed by the Supreme Court in Central Coast Forest Association I. The Supreme Court held that a delisting petition can be based on new evidence, showing that the original decision to list the species was improper. The Court then remanded the case back to the Third District, with instructions to address specific issues and resolve the case on the merits. This decision followed.

Evidentiary Standard and Standard of Review

Under CESA, the evidentiary burden is on the petitioner, and judicial review is deferential to the agency. Petitioners must present enough evidence to lead a reasonable person to conclude that there is a substantial possibility that delisting would be justified, should the agency accept the petition. The Commission evaluates a petitioner’s evidence for reliability and credibility, and weighs it against DFW’s written findings. Because these matters are technical and scientific in nature, the Commission’s findings are afforded deference, and the DFW’s findings, upon which the Commission relies, are given substantial deference. The court reviews the Commission’s determination under administrative mandamus and draws all inferences in favor of the Commission. The court can reverse the agency only if the evidence clearly weighs against the agency’s findings.

Third District’s Decision

The petitioner argued that the southern coho is not native to California under CESA based on studies of archeological sites in the area and historical records and samples. They also argued that natural conditions in the region are too harsh to support a southern coho population, and that the record of hatchery plantings in the area’s streams include hatchery fish from out-of-state stocks.

After reviewing both the petitioner’s evidence and the Commission’s findings, the court upheld the Commission’s determination that the petitioner’s evidence was speculative, incorrect, irrelevant, or at best supported a contradictory inference, from which more than one conclusion could be drawn. The court stated that it was within the Commission’s discretion to draw different conclusions.

For example, reliable museum samples demonstrated that coho salmon existed south of the San Francisco, before hatcheries. The court stated that the low number of specimens was not dispositive, and the lack of conclusive evidence of the historic presence of the southern coho in the record could not be used to prove a negative—that the salmon did not exist. Finally, the petitioner’s contention that the existing samples are “strays” from other areas was unsupported by the evidence.

Notably, the court agreed with the Commission’s contention that “hatchery-influenced” fish are still considered native. While there is some evidence that out-state-stock was used in California hatcheries, there is no evidence to support a conclusion that current population consists entirely of non-native fish. Further, the inability to survive without hatchery support is not evidence for delisting a species.

In making these determinations, the Court agreed with the Commission that “native” means that the species as a whole is native to California and rejected the petitioner’s argument, as a matter of law, that once the focus of the term “species” is narrowed to a particular geographic area, “nativeness” is only viewed relative to that region. CESA emphasizes that the protection of species is of statewide concern.  Similarly, the “range” of a species is not determined by its historic range, which may be influenced by human activity, but it is protected wherever found.

Additionally, the court disagreed with the petitioner’s interpretation of the federal Endangered Species Act, and found that an endangerment listing does not require that an individual population must be an important component in the evolutionary legacy of the species.

Federal policy provides that a population of pacific salmonids can only be considered an ESU if it is substantially reproductively isolated from other nonspecific populations and represents an important component in the evolutionary legacy of the species. Based on a brief reference in a 2002 report stating that the southern ESU may be evolutionarily distinct, the petitioner argued that the Commission must find that the southern coho is evolutionarily distinct and important to the species in order to qualify as an ESU. The court held that the Commission correctly interpreted the federal guidance as protecting the southern coho, as a population of the California Central Coast ESU. The federal policy definition of ESU applies to the entire ESU, not just each individual population.

The court also addressed specific issues raised by the Supreme Court to be resolved on remand, reiterating that range means “current range” and not the historic area once occupied by a population. Additionally, a portion of an endangered species may be delisted only if it can be defined as a separate species, subspecies, or ESU that is not endangered. Because the southern coho is at risk for extinction, it is not eligible to be “carved out” from the California Central Coast ESU and delisted.

Sara Dudley

California Department of Fish and Game Changes Its Name

As of January 1, 2013, the Department of Fish and Game will be known as the Department of Fish and Wildlife (DFW). Governor Brown signed AB 2402 into law on September 25, 2012, thereby enacting the name change. DFW will use new internet (www.wildlife.ca.gov) and email addresses, but the old URL and email addresses will continue to work indefinitely. Many department materials will still use the old name, however. AB 2402 reduced the cost associated with the name change by preventing DFW from undergoing a wholesale turnover of materials.

According to DFW, the name was changed to better reflect its evolving responsibilities. Congressman Huffman, who introduced the bill when he was still in the California Assembly, further commented that the old name reflected previous duties of the agency to set hunting seasons and limits. DFW’s mission continues to be “to manage California’s diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment by the public.”

Twelve states continue to use “game” in the name of the agency overseeing wildlife (Alaska, Arizona, Arkansas, Idaho, Nebraska, New Hampshire, New Mexico, North Dakota, Pennsylvania, South Dakota, Virginia and Wyoming).

For further information, please see: http://www.dfg.ca.gov/about/namechange.html and http://cdfgnews.wordpress.com/