February 28, 2013

California supreme court to decide whether fish and game commission should correct mistakes

By Anthony L. Francois Senior Attorney

In December we reported on a California appellate court decision which says that when the California Fish & Game Commission erroneously lists a species under the California Endangered Species Act (CESA), it cannot correct the mistake.  The case arises out of petition that a forestry association and a timber company filed with the Commission to de-list Coho salmon south of San Francisco, for the simple reason that they are not native to that range, and thus not eligible for listing.  Despite a trial court judge twice agreeing with them, they eventually had the doors slammed in their face by the court of appeal, which ruled that any errors made by the Commission were set in stone and could not be challenged.  A well reasoned Dissent in the opinion explains the errors made by the majority, and now the California Supreme Court may explain those errors as well.  Last month the plaintiffs in the case, Central Coast Forest Association and Big Creek Lumber Company, petitioned the California Supreme Court to review the case, and yesterday the Court agreed to do exactly that.

PLF looks forward to filing an amicus brief in the case, which will argue that the appellate court bent over backwards to protect the Fish & Game Commission from having to explain and correct its errors in listing Coho salmon where they are not eligible for listing under CESA.

What to read next