Judge Lloyd Connelly of the Sacramento Superior Court ordered the California Fish and Game Commission to accept the petition to list the California tiger salamander under the California Endangered Species Act. Center for Biological Diversity v. California Fish and Game Commission, No. 05CS00233 (Cal. Super. Ct. Sacramento filed Dec. 14, 2006). Unless the order is stayed pending appeal or special rules are adopted by the Commission, the decision may raise concerns for projects that are currently operating with federal take authorization for CTS. It is not known if the Commission intends to appeal the decision.
Under state law, petitions to list a species as threatened or endangered are reviewed under a two-step process. The Commission first determines whether to accept the petition for further evaluation. A petition must be accepted if there is sufficient evidence that listing “may be warranted.” If the Commission rejects a petition, the process is over and the species is not listed. If the Commission accepts the petition, the species is designated a “candidate,” and, in the second step of the listing process, the Department of Fish and Game conducts a 12-month status review, at the end of which the Commission determines if the petitioned listing “is warranted.” Candidate species receive the same protection as threatened or endangered species, but the Commission may authorize take during the candidacy period subject to appropriate terms and conditions.
The Commission had rejected the petition to list the CTS in October of 2004, shortly after the species had been listed by the U.S. Fish and Wildlife Service under the federal Endangered Species Act. Judge Connelly’s decision overturned the Commission’s decision and ordered the Commission to accept the petition, which will initiate the second stage of the listing process and result in the designation of the CTS as a candidate species. Even if a project has federal take authorization for impacts to CTS, incidental take permits from the Department of Fish and Game will be required for activities that result in take of CTS during the candidacy period unless the Commission authorizes take of the candidate species. The Commission has a special teleconference scheduled for January 3, 2007, and its next regular meeting will occur on February 1, 2007. The agendas for these meetings have not been posted yet.
For more information please contact Robert J. Uram or S. Keith Garner. Robert Uram is a Partner in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco Office. Keith Garner, AICP, is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.