California Supreme Court Orders Court of Appeal to Consider Merits of CESA Decision on Coho Salmon

On February 27, 2017, the California Supreme Court reversed a Court of Appeal decision dismissing a petition for writ of mandate regarding the California Fish and Game Commission’s (Commission) rejection of a petition to delist the population of coho salmon (Oncorhynchus kisutch) south of San Francisco under the California Endangered Species Act (CESA).  Central Coast Forest Assoc. v. Fish and Game Comm’n, Case No. S208181, 2017 Cal. LEXIS 1540 (Cal. Feb. 27, 2017).  The California Supreme Court held that the Court of Appeal erred by failing to consider the merits of the Commission’s action, and by ruling on an improper procedural ground.

Under CESA, the Commission may examine the listing status of a species either on the petition of an interested individual, by the Commission’s own motion, and on a regular basis to assess whether listing is still warranted.  The Commission first listed coho populations below San Francisco as threatened in 1995, and then listed coho north of Punta Gorda as threatened, and coho between the San Francisco Bay and Punta Gorda as endangered in 2002.  Plaintiffs filed a petition in 2004 asking the Commission to redefine the southern boundary of the Central California coho population, effectively de-listing coho south of San Francisco, on the basis that the Commission’s decision to list the population south of San Francisco as endangered failed to meet the legal standard for listing.  The Commission adopted final regulations listing the southern population of coho as endangered in 2004.  In 2005, the Commission voted to reject plaintiffs’ petition.  On reconsideration, the Commission again decided to reject the petition in 2007.  Plaintiffs sought Superior Court review of the Commission’s 2007 decision, and the Superior Court directed the Commission to set aside its decision, and to undertake further review of plaintiffs’ delisting petition.  The Commission timely appealed.

On appeal, the Court of Appeal for the Third Appellate District reversed the Superior Court’s decision without reaching the merits of the case, concluding that the petition was a procedurally improper means of challenging the Commission’s 1995 and 2004 listing decisions.  On appeal, the California Supreme Court held that the Court of Appeal erred.  Specifically, the Supreme Court noted that CESA allows a delisting petition to challenge, based on new evidence, an earlier listing decision.  Because the Court of Appeal erred on procedural grounds, the Supreme Court remanded the case to the Court of Appeal to consider three specific questions: (1) whether the term native species refers to a listed species that is native to the geographic area in which it is listed or to a species that is native to California; (2) whether the term range refers to a species’ historic or present-day range; and (3) under what circumstances does CESA permit the Commission to delist only a portion of a listed species.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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