Upholds Listing of Coho Salmon
"Evolutionarily Significant Units" Under the California Endangered
December 7, 2007
On Nov. 20, 2007, in California Forestry Association v. California Fish
& Game Commission, the Third District Court of Appeal upheld the
decision by the California Fish & Game Commission ("Commission")
to list two coho
salmon evolutionarily significant units as endangered and
threatened under the California Endangered Species Act ("CESA").
In upholding the listing decision, the court deferred to the scientific
expertise of the Commission and the California Department of Fish &
The court first rejected the claim that the CESAauthorizes the listing
only of species or subspecies, and not of smaller
subgroups such as evolutionarily significant units. The
court reasoned that laws providing for the conservation of natural resources
should be liberally construed, and it also noted the scientific evidence
that the genetic structure and biodiversity among California stocks
of coho salmon were important in evaluating and protecting the species.
As a result, the court upheld the decision to list separately under
CESA the Southern Oregon/Northern California unit as threatened and
the Central Coast unit as endangered.
The court also deferred to the Commission and the Department in determining
that the term range under the CESA refers to a species
California range only, thereby entitling a species to protection
if it is threatened with extinction throughout all, or a significant
portion, of its California range (as opposed to its worldwide range).
The court determined that it is reasonable to infer that the CESAs
focus is protecting species within the state, which is the extent of
the states regulatory authority. The court emphasized that
this reading furthers the Legislatures policy of protecting
these species and their habitat for the value of Californians.
The court next upheld the decision by the Commission and the Department
to distinguish between hatchery raised and naturally spawning fish.
The court emphasized that the CESAs definition of fish
refers specifically to wild fish.
Finally, the court rejected the claim under the California Administrative
Procedure Act that the CESA listings were unnecessary and duplicative
since the two coho units were already protected under the federal Endangered
Species Act. The court explained that the protections provided by the
two statutes were not the same. State listing and permitting decisions
are based only the conditions within the state, whereas listing
and permitting decisions under the federal scheme may take account of
conditions present in the species' entire geographic range.
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© 2007 Bingham McCutchen LLP