On February 27, 2017, the California Supreme Court issued its unanimous opinion in Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594, reversing an appellate decision holding that Plaintiff’s petition to delist coho salmon south of San Francisco from the register of endangered species was procedurally improper.

Background

In 1995, the Fish and Game Commission (Commission) listed coho salmon populations south of San Francisco as endangered under the California Endangered Species Act (CESA) (Fish and G. Code, § 2050 et seq.). In 2004, the Commission joined this population with coho Salmon north of San Francisco (to Punta Gorda in Humboldt County) as members of an “evolutionary significant unit.” That same year, Central Coast Forest Association and Big Lumber Creek Lumber Company (Plaintiffs) petitioned to delist coho salmon south of San Francisco Bay. The delisting petition argued that the coho salmon south of San Francisco had been artificially introduced into the area and have since then been maintained via hatcheries, and so are not “native” within the meaning of CESA. The Commission denied the petition.

The trial court found in favor of plaintiffs and the Commission appealed. In a 2–1 decision, the Third District Court of Appeal held that the petition to delist the endangered coho salmon under CESA failed for the procedural reason that, according to the Court of Appeal, CESA only authorizes delisting when a species is no longer endangered. Where, as in the case before it, plaintiffs challenge the original listing decision, they must do so via a mandamus action in state court. Based on this perceived procedural flaw, the Court of Appeal did not reach a decision on the merits of the case.

The Supreme Court granted review of the case in February 2013.

The Supreme Court’s Decision

The Supreme Court held that the Court of Appeal erred in concluding that a delisting petition is an improper vehicle for challenging an “original listing” decision of the Commission. The Court explained that no provision of CESA directly establishes that the Commission’s decision to delist cannot be based on new evidence showing that the listed species does not qualify for listing. Rather, CESA’s delisting mechanisms make clear that the delisting decision can be made “at any time based upon a petition or other data available to the [D]epartment and the [C]ommission.” (Fish and G. Code, § 2077, subd. (d).) Moreover, CESA includes requirements for the Department of Fish and Wildlife to make delisting recommendations based on the “best scientific information available,” reflecting a Legislative intent that the Commission’s decisions should evolve along with scientific understanding. Other provisions in CESA similarly suggest that the Commission has broad authority to reconsider its listing decision based on new information. The Court held, therefore, that the appellate court erred in holding that it is procedurally improper to use a delisting petition as a mean to challenge the Commission’s decision to list a species as endangered.

Although the Court had granted review of the question whether the delisting petition filed by plaintiffs for coho salmon contained sufficient information to warrant the Commission’s further consideration, the Court chose not to reach that question. Instead, given its reversal of the procedural ruling, the Court found it appropriate to remand the matter to the Court of Appeal to consider the unresolved issues on the merits in the first instance.