California Appellate Court Restricts Use Of CESA Delisting Petitions

Nossaman LLP

In Central Coast Forest Assoc. v. California Fish and Game Commission (pdf), the California Court of Appeal, Third Appellate District held that a petition to delist the endangered coho salmon (Oncorhynchus kisutch) under the California Endangered Species Act (CESA), “fails at the outset because a petition to delist a species may not be employed to challenge a final determination of the Commission.”  The 2-1 decision is one of a small number of reported cases to interpret the listing provisions of the California Endangered Species Act (CESA).  The decision has important state-wide implications because it precludes the use of the CESA petition process to seek reconsideration of listing decisions of the Fish and Game Commission.  Persons seeking to challenge listing decisions will be required to file a lawsuit against the Commission.

In 1995, the Fish and Game Commission listed coho salmon south of San Francisco Bay as endangered.  Then in 2004, the Commission listed coho salmon south of Punta Gorda (which is located in Humboldt County) as an evolutionarily significant unit, which includes the south of San Francisco Bay population.  That same year Central Coast Forest Association and Big Lumber Creek petitioned to delist coho salmon south of San Francisco Bay.  According to the court, the basis for delisting cited in the petition was the assertion that the native range of coho salmon does not extend south of San Francisco.

The court noted that the regulations that implement CESA provide for delisting of a species “if the Commission determines that its continued existence is no longer threatened…”  In light of this regulatory provision, the court concluded that CESA only authorizes delisting where a species is no longer endangered.  In contrast, where, as here, petitioners challenge the original listing decision, the court held that the exclusive means to pursue that challenge is a mandamus action in state court.

The dissent countered that nothing in CESA forecloses the Commission from reconsidering its prior listing decisions.  Further, the dissent criticized the majority for relying on regulations rather than CESA itself, which authorizes delisting when such action “is warranted,” to determine the proper standard for delisting.  But the majority rejected this argument, responding as follows:  “The dissent complains that our opinion would preclude the use of new evidence to show the original listing was in error.  That is correct.”  Although the decision is tied to the facts in the case, it has the potential to affect future listing and delisting decisions including by limiting legislative review of final actions taken by the Commission.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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