Tag: California Endangered Species Act

Salmon Advocates Reel in Victory under CESA in Third District

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In Central Coast Forest Association v. Fish and Game Commission (2018) 2 Cal.5th 594 (Central Coast Association II), on remand from the Supreme Court, the Third District Court of Appeal ruled in favor of the Fish and Game Commission, upholding the Commission’s denial of a request to move the southern boundary of Central California Coast salmon habitat range, and so delist the population occurring in that range as an endangered species. The court found that the Commission acted within its discretion when it determined that the southern evolutionary significant unit (ESU) was not a separate species from the threatened northern coho salmon, that the southern coho salmon ESU was native to California, and that it should be protected wherever it is currently found. The California Endangered Species Act (CESA) promotes the protection of wildlife, and the Legislature affords the Commission substantial deference in how CESA is interpreted to achieve that goal.

Factual and Procedural Background

In 1995 the Commission listed the southern coho salmon ESU as endangered, due to habitat loss and degradation. In 2000, the Commission amended this ruling, and additional populations of coho salmon occurring north of San Francisco were listed as either endangered or threatened in different regions.

This case is the culmination of two prior appeals in the Third District, and a ruling by the California Supreme Court, in Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594 (Central Coast Association I). The petitioner is an association of timber companies that operate in areas where the southern coho migrates and spawns. Two months before the Commission’s 2004 amended listing decision, petitioner Big Creek Lumber requested that the Commission consider its petition to delist the southern ESU, alleging that new evidence had been made available since the Commission’s 1995 determination, and so the 1995 listing was improper.

Based on the Department of Fish and Wildlife’s (DFW) findings and the Commission’s independent analysis, the Commission denied the delisting request in 2005. The petitioners challenged that decision in superior court, which remanded the matter back to the Commission. The Third District again reversed the judgment on appeal. On remand, the trial court again found for the petitioners, and was once again reversed by the Third District on appeal. The Third District then held that the petitioners committed a procedural error, as a delisting petition must be directed at events that occur after the decision to list a species, and not on new evidence that the original listing decision was improper. This holding was reversed by the Supreme Court in Central Coast Forest Association I. The Supreme Court held that a delisting petition can be based on new evidence, showing that the original decision to list the species was improper. The Court then remanded the case back to the Third District, with instructions to address specific issues and resolve the case on the merits. This decision followed.

Evidentiary Standard and Standard of Review

Under CESA, the evidentiary burden is on the petitioner, and judicial review is deferential to the agency. Petitioners must present enough evidence to lead a reasonable person to conclude that there is a substantial possibility that delisting would be justified, should the agency accept the petition. The Commission evaluates a petitioner’s evidence for reliability and credibility, and weighs it against DFW’s written findings. Because these matters are technical and scientific in nature, the Commission’s findings are afforded deference, and the DFW’s findings, upon which the Commission relies, are given substantial deference. The court reviews the Commission’s determination under administrative mandamus and draws all inferences in favor of the Commission. The court can reverse the agency only if the evidence clearly weighs against the agency’s findings.

Third District’s Decision

The petitioner argued that the southern coho is not native to California under CESA based on studies of archeological sites in the area and historical records and samples. They also argued that natural conditions in the region are too harsh to support a southern coho population, and that the record of hatchery plantings in the area’s streams include hatchery fish from out-of-state stocks.

After reviewing both the petitioner’s evidence and the Commission’s findings, the court upheld the Commission’s determination that the petitioner’s evidence was speculative, incorrect, irrelevant, or at best supported a contradictory inference, from which more than one conclusion could be drawn. The court stated that it was within the Commission’s discretion to draw different conclusions.

For example, reliable museum samples demonstrated that coho salmon existed south of the San Francisco, before hatcheries. The court stated that the low number of specimens was not dispositive, and the lack of conclusive evidence of the historic presence of the southern coho in the record could not be used to prove a negative—that the salmon did not exist. Finally, the petitioner’s contention that the existing samples are “strays” from other areas was unsupported by the evidence.

Notably, the court agreed with the Commission’s contention that “hatchery-influenced” fish are still considered native. While there is some evidence that out-state-stock was used in California hatcheries, there is no evidence to support a conclusion that current population consists entirely of non-native fish. Further, the inability to survive without hatchery support is not evidence for delisting a species.

In making these determinations, the Court agreed with the Commission that “native” means that the species as a whole is native to California and rejected the petitioner’s argument, as a matter of law, that once the focus of the term “species” is narrowed to a particular geographic area, “nativeness” is only viewed relative to that region. CESA emphasizes that the protection of species is of statewide concern.  Similarly, the “range” of a species is not determined by its historic range, which may be influenced by human activity, but it is protected wherever found.

Additionally, the court disagreed with the petitioner’s interpretation of the federal Endangered Species Act, and found that an endangerment listing does not require that an individual population must be an important component in the evolutionary legacy of the species.

Federal policy provides that a population of pacific salmonids can only be considered an ESU if it is substantially reproductively isolated from other nonspecific populations and represents an important component in the evolutionary legacy of the species. Based on a brief reference in a 2002 report stating that the southern ESU may be evolutionarily distinct, the petitioner argued that the Commission must find that the southern coho is evolutionarily distinct and important to the species in order to qualify as an ESU. The court held that the Commission correctly interpreted the federal guidance as protecting the southern coho, as a population of the California Central Coast ESU. The federal policy definition of ESU applies to the entire ESU, not just each individual population.

The court also addressed specific issues raised by the Supreme Court to be resolved on remand, reiterating that range means “current range” and not the historic area once occupied by a population. Additionally, a portion of an endangered species may be delisted only if it can be defined as a separate species, subspecies, or ESU that is not endangered. Because the southern coho is at risk for extinction, it is not eligible to be “carved out” from the California Central Coast ESU and delisted.

Sara Dudley

First District Holds Timber Management Plan Does Not Violate CEQA

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The court held that a Nonindustrial Timber Management Plan (NTMP) approved by the California Department of Forestry and Fire Protection (Cal Fire) authorizing logging on 615 privately owned acres in Mendocino County did not violate CEQA. Center for Biological Diversity v. Cal. Dept. of Forestry and Fire Protection (Dec. 30, 2014) ___ Cal.App.4th ___, Case No. A138914.

Timberland use in California is primarily governed by the Forest Practice Act and Forest Practice Rules. An NMTP is a long-term plan for sustained yield timber production utilized by owners of less than 2500 acres of timberland and whose focus is not manufacturing forest products. Though Cal Fire’s approval of timber operations is generally subject to CEQA, the Forest Practice Act’s regulatory scheme is a certified regulatory program. An NTMP functions as the equivalent of an EIR.

In October 2008, the Bower family submitted a proposed NTMP to Cal Fire seeking authorization for timber harvesting activities northeast of Gualala. Petitioners took issue with the fact that Cal Fire approved, and the Department of Fish and Wildlife (DFW) did not object to, logging activity on a 17-acre section that DFW identified as a Late Succession Forest Stand (LSFS). This LSFS was considered a potential functional nesting habitat for a threatened seabird, the marbled murrelet. At the same time, there was no known history of any actual murrelet nesting in the LSFS.

Following a preharvest inspection of the Bowers’ property, a forester asserted the LSFS had only marginal potential for marbled murrelet occupation. A revised NTMP submitted in 2009 required retention of several large-diameter trees to benefit wildlife. Cal Fire issued responses to public comments on the NTMP and approved the document, concluding that large wildlife trees were being preserved, and species largely dependent on late seral habitat features would not be adversely impacted. DFW did not submit a nonconcurrence.

Petitioners filed a petition for a writ, complaint for breach of public trust, and request for injunctive relief. Petitioners contended that Cal Fire, in approving the NTMP, had failed to comply with CEQA and the Forest Practice Rules. They insisted the cumulative impacts of the proposed logging would eliminate enough large trees in the LSFS to render the stand unsuitable for murrelet nesting. Petitioners also argued the NTMP violated the California Endangered Species Act (CESA) by authorizing logging that would be adverse to nesting habitat essential for the survival and recovery of the murrelet.

Reviewing Cal Fire’s approval under the substantial evidence standard, the court denied the petition. It characterized petitioners’ contentions as disagreements over the evidence—parties drawing “dramatically differing conclusions from the same record.” The calculations and comparisons petitioners attempted to make, even if accurate, did not offer a complete description of the resulting environment, the court stated. Furthermore, Cal Fire was entitled to choose between differing expert opinions. Petitioners failed to affirmatively show that there was no substantial evidence in the record to support Cal Fire’s findings. The court also rejected petitioners’ claims that the NTMP did not analyze a reasonable range of alternatives.

Petitioners also claimed the NTMP should have been recirculated based on “significant new information” added prior to certification. They cited to a 2009 one-page memorandum from a Cal Fire biologist recommending additional protective measures for large tree retention. Each of the biologist’s recommendations were addressed in additional mitigation measures. The court found that the memo disclosed no new environmental impacts nor any substantial increase in the severity of an impact. The mitigation measures added in response to the memo were discussed in a second review, in which petitioners participated, and were accepted eight days prior to the close of the public comment period.

Petitioners’ CESA claims failed because Cal Fire found that implementation of the plan, as mitigated, would not result in take, jeopardy, or adverse modification of habitat in violation of the CESA. That finding was supported by substantial evidence.

Petitioners’ claim against DFW also failed. Petitioners cited no authority for the proposition that an NTMP is subject to review through traditional mandamus under CCP section 1085, particularly when the petition is not directed to the agency with authority to approve or reject the project. DFW’s decision not to actively oppose Cal Fire’s decision was merely an exercise of agency discretion.