California Fish & Game Commission Adopts “Very, Very Low” Standard for Candidacy under California ESA

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El Niño has recently brought lots of rain to California, but it’s not quite time to start loading the animals two-by-two. However, the California Fish and Game Commission (Commission) did its part yesterday to save a potentially imperiled species by designating the Humboldt marten as a candidate species under the California Endangered Species Act (California ESA).

Humboldt marten, a mammal in the weasel family, can currently be found in forested areas in Northern California. Candidacy listing means the Humboldt marten now has full protection under the California ESA pending the review to list as threatened or endangered.  Those who work near Humboldt martens–mostly timber companies–now have two options during the candidacy period: (1) obtain authorization from the California Department of Fish and Wildlife (CDFW) to take Humboldt martens, which can be a time consuming process; or (2) assume the risk of an enforcement action for take violations if Humboldt martens are not avoided.

While this listing may appear to only affect a small geographic area, the decision has much broader implications for species listings throughout the state. In addressing the standard for candidacy under the California ESA, the president of the Commission remarked that the bar “is very, very low.”  But just how low does that bar go?  That can be difficult to tell.  For this hearing and the candidacy hearing in December for the tricolored blackbird, the Commission deferred to CDFW’s recommendations in favor of candidacy listing.  CDFW’s recommendations appear to be based mostly on recent declines in species populations.  Of course, one would expect declines for many species given the recent drought in California.

Now, don’t get me wrong–the Humboldt marten very well may deserve protection under the California ESA.  Population estimates are at around 100 individuals.  However, in 2015 the U.S. Fish and Wildlife Service (USFWS) declined to list the Humboldt marten under the Federal ESA.  The USFWS decision considered threats to marten populations throughout its entire range in California and Oregon.  At yesterday’s hearing, CDFW staff suggested that its review only concerned threats to the California portion of the population.  In my opinion, such a narrow review has no legal basis under the California ESA.  Instead, the Californa ESA definitions for threatened and endangered species refer to threats to species throughout all or a significant portion of their ranges without any reference to political boundaries on a map.  That also just seems like common sense — surely, California’s (or Oregon’s) martens do not stop when encountering that (invisible) California-Oregon border line.

Unfortunately, we should expect to see more candidacy listings under the California ESA over the coming years unless the Commission adopts a more rigorous review of CDFW’s recommendations for candidacy listings.

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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