e-Bulletin: California Court of Appeal Announces Low Standard for Species to Achieve “Candidate” Status under CESA

A California Court of Appeal decision earlier this week lowered the standard for placing a species on a “candidate species” list.  On September 2, 2008, California’s Third District Court of Appeal held that the California Fish and Game Commission (“Commission”) must place a species on a “candidate species” list and give full consideration to a petition to list it as “endangered” if there is “a substantial possibility that the requested listing could occur.”  (Emphasis added.)  This decision establishes a very low standard for environmental groups and other petitioners to meet the initial listing threshold of the California Endangered Species Act (“CESA”).  This is significant because once a species is added to the “candidate” status list -- a decision which must be made within 90 days of receiving a listing petition -- the species may not be “taken” without Department of Fish and Game (“DFG”) approval.

When a petition to list is submitted to the State, DFG staff prepares a written report to evaluate whether the petition should be accepted for full consideration or summarily rejected.  That written evaluation is provided to the Commission, which generally takes public testimony on the matter and then issues a decision.  If the Commission decides to reject the petition as being unsupported by sufficient scientific and other evidence, the matter is concluded.  If the Commission accepts the petition for full consideration, DFG undertakes a comprehensive evaluation of the species, which takes approximately 12 months.  DFG staff then makes a final recommendation to the Commission, which decides whether to place the species on California’s endangered species list.  However, unlike the federal Endangered Species Act, CESA provides candidates full protection during the 12-month “full consideration” period. 

The court’s September 2^nd decision in Center for Biological Diversity v. California Fish and Game Commission (Case No. C055059), arises from the Commission’s decision to reject the Center for Biological Diversity’s (“Center”) petition to list the California tiger salamander (“CTS”), an amphibian native to Central California, as a potential endangered species.  The Commission summarily rejected fully processing the Center’s listing petition for three main reasons.  First, the Commission found that the petition presented an absence of historic population counts and conflicting evidence regarding populations, to enable the Commission to determine whether the population was decreasing.  The Commission determined that studies cited by the Center to show a decline in population surveyed only a very limited portion of the species’ total range or used questionable sampling methods.  Second, the Commission was not persuaded by the Center’s allegation that the loss of native land required listing because “[l]ittle or no evidence was presented by the Center correlating salamanders within the actual ‘habitat’ allegedly being impacted.”  (Slip Opinion at p. 15.)  Finally, the Commission determined that the petition did not include any actual data on population abundance.  Instead, the petition relied on inferences that a decrease in the potential habitat caused an overall population decline.  The Commission determined that inferences and anecdotal information could not be used to accurately establish a case for listing.  Ultimately, the Commission found that the petition lacked sufficient information for a reasonable person to conclude that there was a substantial possibility that listing could occur.

Unsatisfied with the Commission’s findings, the Center challenged the decision.  At trial, the Sacramento County Superior Court sided with the Center and ordered the Commission to accept the initial petition to list the CTS under CESA, to declare the CTS a candidate species, and to proceed with the listing process.  The Commission appealed.

The Court of Appeal affirmed the trial court’s decision against the Commission, holding that the standard for accepting a petition for listing a species is whether there is “sufficient information to indicate that the petitioned action may be warranted.”  (Slip Opinion at p. 21, citing Fish and Game Code, § 2074.2, subd. (a)(2).)  The court explained the elements of this standard as follows:

The term “sufficient information” in section 2074.2 means that amount of information, when considered with the Department [of Fish and Game’s] written report and the comments received, that would lead a reasonable person to conclude the petitioned action may be warranted.

The phrase “may be warranted” is appropriately characterized as a substantial possibility that listing could occur.

“Substantial possibility,” in turn, means something more than the one-sided “reasonable possibility” test for an environmental impact report but does not require that listing be more likely than not. (Slip Opinion at p. 21, internal quotations and citations deleted)

The Commission had argued that its decision not to list must be upheld if the record provides “substantial evidence to support a rationally based doubt regarding a serious threat of extinction.”  (Slip Opinion at p. 23.)  The Court of Appeal rejected this argument, stating:

[T]he standard, at this threshold in the listing process, requires only that a substantial possibility of listing could be found by an objective, reasonable person.  The Commission is not free to choose between conflicting inferences on subordinate issues and thereafter rely upon those choices in assessing how a reasonable person would view the listing decision.  Its decision turns not on rationally based doubt about listing, but on the absence of any substantial possibility that the species could be listed after the requisite review of the status of the species by the Department under section 2074.6 [of the Fish and Game Code].  (Slip Opinion at p. 23.)

Importantly, the court determined that the Commission must review the evidence in the light most favorable to accepting the petition.  Thus, the court rejected the Commission’s findings that the Center’s evidence was based on inferences and anecdotal evidence and only limited scientific studies.  The court suggested that information and argument opposing listing a species is generally irrelevant at this early stage of the CESA process, stating:

All that is required is a substantial possibility that the requested listing could occur.  A counter showing or argument that raises only a conflicting inference about a portion of the showing in favor of the petition, unless that counter inference is very strong, will not, for an objective, reasonable person, diminish the possibility that listing could occur to an “insubstantial” level.  (Slip Opinion at p. 25.)

Conclusion

Under the rationale of the Center for Biological Diversity decision, those seeking to list a species as endangered under CESA must only put forth limited factual or scientific information demonstrating reasonable inferences to advance their request past the initial administrative threshold.  Conversely, those opposing a petition for listing must provide almost uncontroverted scientific evidence if they hope to overcome the near presumption in favor of full consideration of the petition.  If the low standard is met, the Commission is required to advance the petition to full consideration, i.e., to the full, 12-month DFG evaluation of the species’ status.  More importantly, once that initial threshold is met, the species achieves candidate status, which allows it protection from “take” under CESA during the 12-month evaluation period.   

Please contact your BB&K Environmental and Natural Resources attorney for more information on this case and how it may affect your projects 

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