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Court of Appeal Affirms Expansive Interpretation of California Endangered Species Act Listing Provisions

By: Paul S. Weiland
01/07/08

On November 20, 2007, the Third Appellate District issued an opinion affirming the decision of the California Fish and Game Commission (Commission) to list two populations of coho salmon under the California Endangered Species Act (CESA). California Forestry Association v. California Fish and Game Commission, (2007) 156 Cal. App. 4th 1535. In affirming the listing decision, the court interpreted the terms "species" and "subspecies" in CESA with reference to their nonscientific meaning – rejecting arguments that the scientific meaning of those terms should be applied. Additionally, the court interpreted CESA as requiring that listing decisions be based solely on a species’ status within California, thereby rejecting the Plaintiff-appellants’ textualist argument that CESA requires that listing decisions be based on the entirety of a species’ range. This decision may be expected to provide a basis for listing other populations of species or subspecies even when the species or subspecies are not at risk of extinction.

Coho salmon are one of five separate species of Pacific salmon, and they naturally occur in the north Pacific Ocean from Hokkaido, Japan to eastern Russia, around the Bering Sea to mainland Alaska, and south to Monterey Bay, California. In 2005, Plaintiff-appellants, the California Forestry Association and others, filed a challenge in state court to two separate listing decisions by the Commission. Specifically, they challenged the Commission’s decision to list a population of coho salmon that reside along California’s central coast as endangered and the Commission’s decision to list a population of coho salmon that reside on California’s northern coast and in southern Oregon as threatened.

CESA defines an endangered species as "a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes…" Cal. Fish & Game Code § 2062. And CESA defines a threatened species as "a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant that, although not presently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts required by this chapter. Id. § 2067.

Plaintiff-appellants argued that a population of coho salmon cannot be listed because it does not meet the definition of an endangered or threatened species as "a native species or subspecies." Furthermore, plaintiff-appellants argued that a population of coho salmon cannot be listed based on consideration of its range only in California. The court rejected both arguments and instead deferred to the Commission’s expansive reading of CESA in light of the fact that it is a remedial statute.

If the decision stands, it will have significant policy implications. Importantly, because the court interpreted the term subspecies to be a subgroup of a species, the court’s decision could expand the pool of species eligible for listing to include any population of the species irrespective of the size of that population, the ecological significances of that population, and that relationship of the population to the viability of the species as a whole. Plaintiff-appellants filed a petition for review of the decision with the California Supreme Court on December 28, 2008.

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