Court Upholds Listing of Coho Salmon
"Evolutionarily Significant Units" Under the California Endangered Species Act
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 & Game ("Department").

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 the
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 CESA’s focus is protecting species within the state, which is the extent of the state’s regulatory authority.” The court emphasized that this reading “furthers the Legislature’s 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 CESA’s 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.

For assistance, please contact the following:

Marc R. Bruner, Partner, marc.bruner@bingham.com, 925.975.5176
Cecily T. Talbert, Practice Group Leader,
cecily.talbert@bingham.com, 925.975.5339

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© 2007 Bingham McCutchen LLP