More Answers Needed to Delist Endangered Species, Court Says

By William Vogeler, Esq. on February 28, 2017 | Last updated on March 21, 2019

In a judicial catch-and-release, the California Supreme Court said the state has authority to delist an endangered species in light of new scientific evidence.

Reversing a lower court decision that side-stepped the issue of delisting an endangered species, the high court sent the case back for a determination of the fate of the coho salmon. The justices unanimously said the Fish and Game Commission has the authority under the California Endangered Species Act to reconsider its prior decision to list the salmon has endangered.

"Specifically, the statute vests the Commission with authority to delist a species when it finds upon the receipt of sufficient scientific information that the 'action is warranted," Justice Ming William Chin wrote.

The Fish's Story

In 1995, the commission added the coho salmon in streams south of San Francisco to its endangered species list. In 2004, it joined this fish population with coho from San Francisco north to Punta Gorda, and later included coho salmon south to Humboldt County to the protected fish in the Coho Salmon Range.

Central Coast Forest Association and Big Creek Lumber Company filed a petition asking the commission to redefine the southern boundary to exclude coastal streams south of San Francisco, effectively delisting coho salmon south of San Francisco. They argued that the fish were artificially introduced into the area and "hatchery maintained," so that they were not "native" within the meaning of CESA and did not qualify for protection.

A trial court agreed, but the appellate court reversed on procedural grounds. The supreme court disagreed.

New Information

Seeking a determination on the merits of its decision to protect the fish, the commission appealed. The plaintiffs also said the appellate court erred by not considering new scientific information about the coho population.

The supreme court said the lower court will have to resolve many issues, including does "native species" in the definition of "endangered species" mean "native to the area" in which the species is listed, as plaintiffs assert, or "indigenous to California," as the Commission claims."

Environmental groups were watching the case to see whether the court would rule on the native species argument. The court sent that issue back to the appeals court.

"We don't accept that they are not native fish just because they are hatchery raised," said attorney Lisa Belenky of the Center for Biological Diversity, which filed a brief in the case.

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