February 22, 2018

New brief in California Coho listing challenge

By Damien M. Schiff Senior Attorney

Yesterday PLF filed an amicus letter urging the California Supreme Court to grant review in Central Coast Forest Association v. Fish & Game Commission. In this case, the California court of appeal upheld (on remand from the state’s high court*) the Commission’s decision to protect various ephemeral and hatchery-dependent populations of Coho salmon that dwell in creeks and streams south of San Francisco. The Association argued among other things that protecting these populations under the California Endangered Species Act is illegal, because they are not native to the area, and in fact persist today only because of hatcheries that use out-of-state stock.**  The court of appeal, however, rejected these and the rest of the Association’s arguments, and the Association now has sought review for the second time in the California Supreme Court.

Our letter brief addresses the underlying question of the scope of the Commission’s listing power under the California Endangered Species Act. The Commission has designated the Coho populations at issue as part of an “evolutionarily significant unit” of the larger pan-Pacific Coho species. In other words, this Central California Coast population of protected Coho is not itself a species or subspecies, but simply a very small subgroup of the Coho species. We argue that the Commission has no authority to protect such subpopulations under the California Endangered Species Act, which is expressly limited to “species or subspecies.” Unfortunately, a 2007 decision from the court of appeal, California Forestry Association v. Fish & Game Commission, upheld the Commission’s power to protect subpopulations, and the California Supreme Court denied review of that decision.***

Now, however, is an even better opportunity for the high court to address this critical issue of statutory interpretation. The court of appeal’s decision below extends the rule of California Forestry Association to the point that the Commission potentially may protect any population, no matter how marginal in itself, so long as doing so may further the Act’s conservation goals.**** Whether the Commission may protect such subpopulations is a question of significance not just for property owners, but for wildlife advocates as well. That is so because every time an agency chooses to protect marginal or factitious populations, scarce budget resources are drawn away from protecting undeniably significant populations. As the noted wildlife biologist Rob Roy Ramey has explained, the listing of “an invalid taxon . . . . affects other species because limited conservation resources are then misallocated.”

We should know in the next month or two whether the California Supreme Court will take up the case.

*In that decision, the state supreme court held that the California Endangered Species Act allows interested parties to petition to delist species on the ground that post-listing evidence shows that the original listing was in error.

**Unlike those of its federal counterpart, the protections of the California Endangered Species Act are limited to “native species and subspecies.”

***My colleague Joshua Thompson and I wrote an entire law review article on the errors of the California Forestry Association decision.

****See, e.g., slip op. at 52 (“[N]either [the California Endangered Species Act] nor any state regulation requires that a population be an important component of the evolutionary legacy of the species before it can be included as an endangered species.”).

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