A one-way Endangered Species Act?

December 18, 2012 | By DAMIEN SCHIFF

Last week, the California Third District Court of Appeal issued its decision in Central Coast Forestry Association v. California Fish & Game Commission.  The court, in an opinion authored by Justice Blease and joined by Justice Robie, held that, under the California Endangered Species Act, one can seek delisting of an already protected species on only two grounds:  (1) the species has gone extinct; or (2) the species has recovered.  The court rejected the petitioners’ position that one can also seek delisting on the grounds that new data show that the original listing was in error.  In so holding, the court of appeal interpreted the California ESA contrary to the federal ESA.  The court also interpreted the statute to create a strange regime where a landowner can continue to be subject to the statute’s strictures notwithstanding that the species in question should never have been listed in the first place.  How did the court of appeal majority reach this peculiar result?

First, the court interpreted the state ESA as authorizing judicial review of Commission decisions through administrative mandamus, only.  That holding is particularly odd given that the same court’s decision in California Forest Association v. California Fish & Game Commission, also interpreting the state ESA, was based on an ordinary mandamus petition (a fact I should know as I was the lead PLF attorney for the petitioner.  N.B. I and a colleague have written a stinging critique of this exceptionally poor decision).

Second, the court deferred to the Commission’s delisting regulations, which provide for delisting only on the grounds mentioned above.  (In contrast, the federal analogue regulations expressly authorize delisting based on new information that demonstrates the original listing to have been in error).

Thus, the court concluded that the only way to challenge a Commission listing is through administrative mandamus brought immediately after the listing.  Once the time for filing such a petition has passed, or once any challenge has been adjudicated, then the listing arguably becomes unassailable.

Justice Nicholson’s dissent makes two main points.

First, precluding reconsideration of the Commission’s decision to list, even reconsideration initiated by the Commission itself, is inconsistent with the proposition, which the majority concedes, that a listing is a quasi-legislative,notquasi-adjudicative action.  Finality is to be expected in the latter, but certainly not in the former instance.  Indeed, the ability to reconsider for almost any reason is a classic attribute of legislative power.

Second, the doctrine of judicial deference to agency interpretations of statutes still leaves the judiciary as ultimate arbiter of a statute’s meaning.  To the extent that the Commission’s regulations preclude delisting on the basis of new information showing the original listing to have been error, then the court should not defer to the regulation.  The Commission’s interpretation is inconsistent with federal practice, and would produce absurd results.  For example, the Commission’s interpretation means that a landowner would be precluded from an otherwise productive use of his private property in order to protect a listed species that does not qualify for listing.

If the court of appeal’s decision stands, what will be the impacts to California property owners?  Arguably, the decision is not as far-reaching as one might think.  To begin with, nothing in the decision precludes a property owner from petitioning for delisting on the grounds that the species has recovered.  Thus, the property owner will fall into the lurch only in the (arguably) unusual circmstance where the erroneously listed species is actually endangered but otherwise does not qualify for listing.

When can that scenario arise?  I can think of at least two circumstances, one of which is present here.  The petitioners in Central Coast Forestry Association challenged the Commission’s listing of a population of coho salmon that dwells south of San Francisco Bay.  The petitioners argued that new evidence demonstrates that the coho salmon were never native to streams south of San Francisco.  And because the statute authorizes protection only for “native” species, the coho south of San Francisco is legally ineligible for listing.  But, as the court of appeal ruled, delisting is not allowed for that type of argument.

A second scenario, related to the first, is where new evidence shows that the listed population is not a separate species or subspecies but rather is part of a larger taxonomic unit that, as a whole, is not in danger of extinction.  As I read the court of appeal’s decision, one cannot seek delisting on this basis.

Now, could the court of appeal’s decision raise due process issues?  I should think so.  For example, let’s say someone is criminally prosecuted for “taking” a listed species, and he defends on the grounds that the species is not validly listed.  Arguably, the court of appeal’s decision would preclude the defendant from challenging the legality of the listing, because it would be outside administrative mandamus.  Similarly, let’s say that a person received no notice of the pending listing, and had no reason to be concerned anyway because the species did not dwell on his property, but after the listing the species now is found on the property.  Under the court of appeal’s decision, the property owner could not challenge the restrictions to which his property is now subject, notwithstanding that he had no meaningful opportunity to comment on the listing.

I think it fair to say that this is a bad decision, both as a matter of legal analysis and policy.  I hope that the petitioners seek review in the California Supreme Court.