On September 2, 2008, the Third District of the California Court of Appeal decided that the California Fish and Game Commission (“Commission”) erred by rejecting at the threshold a petition to list the California tiger salamander (“CTS”) under the California Endangered Species Act ("CESA"). The Commission had rejected the petition in 2004, finding that it provided insufficient information to indicate that listing “may be warranted,” the standard for the accepting a petition for further evaluation under Fish and Game Code section 2074.2. The petitioner sued, and the trial court granted the petitioner’s request to overturn the Commission’s decision. The decision has major implications for the administration of the California Endangered Species Act.
On appeal, the Commission argued that its decision must be upheld because there was substantial evidence in the record to support its decision. The appellate court disagreed, noting that the Commission is not “free to choose between conflicting inferences” and that the appropriate test is whether an objective reasonable person would conclude that there is a substantial possibility that listing could occur. The court found that the information supporting the petition, including the Department of Fish and Game’s evaluation of the petition, presented a prima facie showing that the CTS is threatened or endangered under CESA. The court found that once a petition makes a such a showing, the Commission must accept it “unless the countervailing information and logic persuasively, wholly undercut some important component of that prima facie showing.” The court also upheld the trial court’s decision to order the Commission to accept the petition rather than remanding it to the Commission for further consideration.
While the court says it is following the only prior appellate decision on this issue, Natural Resources Defense Council v. Cal. Fish & Game Comm’n (1994) 28 Cal.App 4th 1104 (“NRDC”), its decision greatly diminishes the Commission’s ability to weigh evidence in the record under section 2074.2 as compared to that allowed under NRDC. The NRDC court explained that “we can say with some assurance that the CEQA fair argument standard sets too low a threshold for section 2074.2 and the trial court correctly rejected it. This is principally because the section 2074.2 determination is a quasi-adjudicatory one that contemplates the Commission weighing the evidence for and against candidate listing and deciding essentially a question of fact in the process.” The NRDC court also rejected a suggestion by the Commission that the standard be that listing was “reasonably probable,” stating “the standard of ‘reasonably probable that listing will occur’ sets too high a mark. But these two standards are helpful in delineating the spectrum of meaning and point to a standard located between them.”
It is not known if the Commission intends to pursue an appeal. If not, the appellate court’s decision directing the Commission to accept the petition will initiate the second stage of the listing process and result in the designation of the CTS as a candidate species. Unless the Commission authorizes take of the candidate species, which it may do under CESA, incidental take permits from the Department of Fish and Game will be required for activities that result in take of CTS during the 12-month candidacy period. This is true even if a project has federal take authorization for impacts to CTS. At the end of the candidacy period, the Commission must decide whether listing of the species is warranted.
This decision opens the door for the filing of petitions to list species under CESA as it sets a low floor for accepting a petition for candidacy. This could have significant effect on the regulated community as the determination that a species is a candidate for listing provides protection for the species against take.
Robert J. 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.