CENTRAL COAST FOREST ASSOCIATION v. CALIFORNIA FISH AND GAME COMMISSION

Respondents' Petition for Review

Cal.January 23, 2013

No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CENTRAL COAST FOREST ASSOCIATION and BIG CREEK LUMBER COMPANY, Plaintiffs and Respondents, SUPREME COURT FILED JAN 2.3 2013 Vv. CALIFORNIA FISH AND GAME COMMISSION, Frank A. McGui Defendant and Appellant. \ McGuire Clerk Deputy After an Opinion by the Court of Appeal, Third Appellate District (Case No. C060569) On Petition for Review ofthe Decision of the Court of Appeal, No. 060569 Sacramento County Super. Ct. No. 07CS0085 Honorable Gail D. Ohanesian, Judge PETITION FOR REVIEW James L. Buchal, SBN 258128 Murphy & Buchal LLP 3425 SE Yamhill Street, Suite 100 Portland, OR 97214 Tel: 503-227-1011 Fax: 503-573-1939 January 22, 2013 Atty. for Plaintiffs and Respondents TABLE OF CONTENTS INTRODUCTION...cccscccsecseetseeeeecescenseeeesaeeeaeeaeesaeesseeeaesneesaeseeeesereates 1 ISSUES PRESENTED FOR REVIEW........ essessssesssscaveasevssesessesesaseseatsesees 1 NECESSITY FOR REVIEW wu... ceeccsccessccssceceneessesessecseetesesneessecesnsessnnessees2 STATEMENT OF THE CASE... cecscceceecesseeseeeneeseceaeseareenesseesrseaesneeeaees 5 A. Legal Background...eeeseceseseesessstseviiinnsanessnssassessee 6 B. Procedural History ..........cecsecceeseeseeeeseeseceseaeeeseeeeaneeseneeseeeesaeees7 REASONS FOR GRANTING REVIEWooeseseesi vevceeneeeneesaeeseesaeesseeeeeenenss 14 I. THE MAJORITY’S ERROR CREATES CONFUSION CONCERNING THE MEANSOF JUDICIAL REVIEW OF COMMISSION LISTING DECISIONS, AND UNLAWFULLY LIMITS REVIEW THEREOF.........cccccesessecteeeseceneteaneeeeerecntevsaeeaee 14 A. The Majority Establishes the Wrong Writ and Wrong Standard of Review for CESA Decisions..........ccceceeseeeetees 14 B. The Majority’s Invocation ofRes Judicata in a Quasi- Legislative Context Is Utterly Inappropriate .................c0 16 I. THE CALIFORNIA ENDANGERED SPECIES ACT REQUIRES THE BEST AVAILABLESCIENTIFIC:INFORMATION TO BE CONSIDERED IN DECISIONMAKING, WITHOUT THE EXTRA-STATUTORY LIMITATIONS IMPOSED BY THE MAJORITYon. ccecesccececssceseceseeeecaeeeeessecseeseaeeeseeesseesseesatenaeeaneseneses 19 II. THE EVIDENCE AND ISSUES RAISED BY THE PETITION ARE IMPORTANT AND WORTHY OF CONSIDERATION.......25 CONCLUSION 1.0... ceeccceccsseseeeseeeeeeeaeeeneesecseeesessaresaeennesenessaeeaeeneesaesssereaneeats 30 TABLE OF AUTHORITIES Cases American Coatings Ass’n v. South Coast Air Quality Management(2012) 54 Cal.4th 446occccseecsscccsecseesseeseecsscceesesesseeeseesarsseesaeseseesessseens 15 California Forestry Ass’nv. California Fish & Game Comm’n (2007) 156 Cal.App.4th 1535 ooo. eeccsccseeesceeessessesseeeteees 8, 25, 26, 28, 29 Centerfor Biological Diversity v. California Fish & Game Comm’n (2008) 166 Cal.App.4th 597 oo ccccsscsesesseeeeseeesessesseeesesenesseesnesanens 14,15 Centerfor Biological Diversity v. California Fish and Game Comm’n (201 1). 195 Cal.App.4th 128.0...aneeEdaljackelecebacdeeessesecseseeeesseeesteesseees 14 Centerfor Biological Diversity v. Morgenweck, 351 F. Supp. 2d 1137, 1143 (D. Colo. 2004)...eeeeesenneeeteens 12 Central Coast Forest Association and Big Creek Lumber Companyv. California Fish & Game Commission, Case No. 05CS01617 (Sac. Cty. Sept. 22, 2006) 0... ee ceescesseesrees 11 Colorado River Cutthroat Trout v. Kempthorne, 448 F. Supp. 2d 170 (D.D.C. 2006) oo... ce eeeeseseeeeteesseeseeseeeteeeseesaes 12 Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860 oo... cccecccscsessesssccsssseecseeeseesseecsecsessaeesseseeseeeseseeseneeaees 17 Natural Resources Defense Council v. Fish and Game Comm’n (1994) 28 Cal.App.4th 1104oesseueneceaeecsseesseeesceceaecnseeeeaeeseseees 3,14 Sierra Club v. California Coastal Comm ’n (2005) 35 Cal.4th 839 oo. cccccccssccssscesssecsseeesesneeeseecsseeessaeeesenessaaeesssesensanes21 Topanga Ass’nfor a Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d 506oeeecesecerserseeesesseeesseceerseeeseseresstessssseesrerseteneeeats29 -ii- Western Watersheds Projectv. Hall, 2007 WL 2790404, *6 (D. Idaho 2007)... eeseseeeeetseseeseeesseeeeens 12 Y.K.A. Industries, Inc.v. Redevelopment Agency ofthe City ofSan Jose (2009) 174 Cal.App.4th 339 oo. eeseesseeesa ssescseauoseeesasessesereseaeeaeesaeeeaeesaeens 17 4 State Statutes Cal. Code. Regs., Title 14 SOTOeecescecessesseecsecsscesseecsrecseeecsreseasessesesstesesesesasssensssaeeeateensueens22 Code of Civil Procedure 8 OBSeeceeccsssecsessecsssecsseesseesesscsseesnesesesessteseesessneeenss 3, 15, 16, 18 8 1094Seeeeeceseceteteressseessecetnesseeeseneesteesenteeneess 3, 14, 15, 16, 18, 21 Fish & Game Code § 86.eecesseceeeecssecsesseeessecsssesseesssecesesesgeceseecsneessseeseteeesstesssesaseeasesses 7 § 2062... eecccessecsseesseesecceaecssecssneeseuecsaeessssceseessneeseseeesseecssssssestetesaesenes6 § 2067 oo. eeecccescecssscesseseecssecsscsseeessneessesesstceseeesssecsusesesesssesesseststesseeeess6 § 2070... eececescesssecnsescesseecsseceneeessusesseceeeeesuessneessseeesaeesstsesteesaeeens 6, 19 § 2071eeeeeeereeeesseeaeeesesesneseneneseseequesesessanagenaensesseseeenesssessneasesenes7,19 0 cSsocousetovebescesessvsareussatersesnesavenersass20 § 2072.7 eccesccsssccessesssesseeensesseessneeseaes Laceuchesctuseueesceesssceessusssusesauesereee20 § 2073S cesscccssccssccessesrsesssccssessesessssesseesssteeseessneesesesessueserssestensuessaes2,7 § 2074.2. eeccccsccssccsteessessesesseeesseesssessnseseesensessasessaesesasecerecueesatenes 2, 18 § 2074.2a) .crcesccccscccscesscessrecssecsneceseseseescseessescenseesseeesesseeseseateesseeeatess 13 § 20744 ieccccseccesscesecsecssecsseessnsecsseesseessaeesressseeesseeesssreesesesteeseseentess 13 § 2074.6. eescccscccessceseccsecsseececessneceseneessesseesenssseeeesresesseeestesinecesteeateses 7 § 2075.5iceesccsssccssecssccscessnecssecssnecessessssecensssaeeceaesssnecesanesessesteeeateess 7,18 § 2075.5(2) vee eecccccsccssscsnesecsessecssnecessecsssessnecseecsaeesseseeseesesstessesentecesasenss7 § 2076... eeececceseeeesseeseesnecsseecsaccesaeceeaeessesesecesessensesseeeessnessnesenss 3, 16, 18 § 2077(a) o.ceeecccssccessesseesssesseecsesensnecsssesesecessesensesseeeseecesseessueeuteeateeneees20 § 2080... eecccecsccssscetecssceseveseesssecesseecsesessussaesesuecessecseatesssecseesuseessesenss7 Other Authority 56 Fed. Reg. 58,612 (Nov. 20, 1991)... cceessscstsecseessreesssesssssseeseseeessesses27 S. Rep. No. 96-151, 96th Cong., Ist Sess. 7.(1979).......cccscssessseseessseesrevens28 - iii - NOAA Technical Memorandum,“Definition of “Species” under the Endangered Species Act: Application to Pacific Salmon” (Mar. 1991).....28 Santa Cruz Weekly, “Big Creek Lumber Seeks Special Consideration in Salmon Rules,” Jume 19, 2009 oo.eeccccceesesscecceevesseesessectscceceesseststsceseseeses 5 Wall Street Journal, “Even a Logger Praised As Sensitive to Ecology Faces Bitter Opposition”, April 1, 1993.0... ccscssecsecssecsesseressessessesseseeseesestesstees 5 -iv- INTRODUCTION TO THE HONORABLECHIEF JUSTICE OF CALIFORNIA AND THE HONORABLEASSOCIATEJUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Plaintiffs Central Coast Forest Association and Big Creek Lumber Companypetition for review of a 2-1 decision of the Court of Appeal, Third Appellate District, reversing the judgment of the Superior Court for Sacramento County, which granted plaintiffs’ petition for writ of mandate commanding the California Fish and Game Commission (“Commission”) to consider plaintiffs’ petition to correct error in the geographical designation of the coho salmon “species”listed under the California Endangered Species Act (““CESA”). Under the majority’s decision, the Commissionis precluded by its own regulation from considering a petition to correct error in the performanceofits statutory listing duties. ISSUES PRESENTED FOR REVIEW 1. Are the Commission’s decisionsonlisting petitions under CESAakin to judicial decisions as to which the doctrine of resjudicata applies, such that a petitioner may not, through’ the statutory delisting process, advance new evidenceto prove any errorin aninitial listing? 2. Should the Commission’s listing regulation be interpreted to mean that once a species has beenlisted, the sole ground for delisting must be that the species has recovered, without regard to errorin theinitial listing? 3. May the Commission lawfully limit byregulation the scope of statutory delisting petitions to only those showing that a species has recovered? 4. Once the Commission definesa “species,”is it thereafter without powerto revise the initial species definition? 5. Did plaintiffs present sufficient information to demonstrate that the action they sought, redefinition of the “species” of coho salmon listed for protection in California, “may be warranted” within the meaning of Fish and Game Code § 2074.2? 6. Is the Commission legally forbidden from considering in the listing processthe effectthat listing one “species” might have on anotherlisted “species”? | NECESSITY FOR REVIEW This case raises important questions of statutory and regulatory interpretation, and review is also required to secure uniformity in the judicial review ofpetitions presented to the Commission. Until the decision below,it was commonly understood, based on the plain language of CESA and numerousdecisions thereunder, that review of the Commission’s decisions rejecting petitions under the Act pursuantto § 2073.5 of the Fish and Game Code was governed by the “substantial evidence”test and § 1094.5 of the Code of Civil Procedure. Faced with an extraordinarily-meritorious petition to narrow the scope of a “species”to exclude hatchery-maintained populations of coho salmon south of San Francisco—to the benefit offragile native steelhead and perhapsthe wild coho as well—the Court ofAppeal overturned its own prior decision in Natural Resources Defense Council v. Fish and Game Comm’n (1994) 28 Cal.App.4th 1104, and declared that the Commission’s decisions rejecting petitions constituted quasi-legislative action reviewable only under § 1085 of the Code of Civil Procedure. Such review, of course,utilizes only an “arbitrary and capricious” test. The majority’s decision not only unsettles the law, but also makesit flatly contrary tothe Legislature’s expressintent, as set forth in § 2076 of the Fish and Game Code,that review should be governedbythe less deferential standards of§ 1094.5. The majority did acknowledge that “substantial evidence”test and § 1094.5 applied to review of the Commission’s final decision on petitions it accepted. However, the majority also held these decisions were somehow afflicted with a powerful form of resjudicata that prevented any petitioner from ever presenting newly-available scientific evidence (or indeed any evidence) demonstrating that the original listing decision wasin error. According to the majority, new evidenceis foreclosed on any issue considered in the initial listing decision; the only evidence permitted is os ok uo -3- evidence showing whether or not species numbersand conditionsafter the listing are improvingor getting worse. This-extra-statutory limitation is not only contrary to fundamentalprinciples of due process of law, but also seriously interferes with the Legislature’s continuing commandto revisit listing decisions based on the best available scientific evidence. The majority’s procedural innovationleft in place a thicket ofprofoundly unreasonable interpretations of CESA put forthby the Commission, which also raise important questions of public concern relating to species definition that this Court has never addressed. In sum,this Court’s guidance is required not merely to secure uniformity in the Court of Appeals, but also to reaffirm andclarify settled CESAlaw with respect to review of Commission decisions and the powers of the Commission andto address important questions of species definition. Application of the State’s most important wildlife protection statute presents an inherently important question oflaw meriting this Court’s review. Cu Plaintiffs did not seek rehearing in the Court of Appeals because the errors below were ofa legal nature, and the oral argumentleft no doubt as to an irreconcilable division among the justices. By reasonofits extraordinary limitation on the scope ofdelisting petitions, the majority did not reach the remainingissues in the case, or weigh the facts. -4- STATEMENT OF THE CASE Plaintiffs have long been involved in fishery research and propagation activities,’ and have even won awardsfor their environmental stewardship, including the prestigious Wildlife Conservation Achievement Award from the California Department of Fish and Game (“Department”) in 1995. (AR1/3:727,” 756, 782) Their petition to redefine the geographic scope of the coho salmon“species”is perhaps the only endangered species act petition ever presented to the Commission which was supported by a peer-reviewedarticle in the Fisheries journal ofthe American Fisheries Society. (AR1/3:899-917.) Notwithstanding the peculiar technical arguments invented by the majority, and the even morepeculiar positions of the Commission, it was at all times obviousthat the petition demonstratedat least that species redefinition “may be warranted”for purposes of requiring further review of ' See also Wall Street Journal, “Even a Logger Praised As Sensitive to Ecology Faces Bitter Opposition”, April 1, 1993; Santa Cruz Weekly, “Big Creek Lumber Seeks Special Consideration in Salmon Rules,” June 19, 2009 (federal fisheries scientist notes that “in Big Creek Lumber’s case, self-regulation works’’). ; *The certified administrative record for the case consists of four parts. Parts I through III consisted of 12 bound volumesentitled “Administrative Record Concerning Rejection of Petition to Delist Coho South of San Francisco.” Part IV of the record, with 13 bound volumes, consists of the certified record concerningtheprior listing decision. Parts I through II] of the record are cited as “AR1,” and Part IV is referred to as “AR2,” followed by the volume and page numbers. its claims. Instead of givingthe petition full review, the Commission sought to lock California into continuing a century of failure to establish self-sustaining coho populations south of San Franciscobyartificial propagation, arguing in effect that once a hatchery wasestablished, no matter how foolish or counterproductive it mightbe, the fish in it had to be protected as listed species, without regard to any further evidence presented by a petitioner. The Commission’s position, and that of the majority, lacks any basis in law orpolicy. A. Legal Background Under CESA, the Commission is vested with the authority to establish and maintain list of “endangered”and “threatened”species. Fish & Game Code § 2070. The Act defines an “endangered species” as any “native species or subspecies of a bird, mammal, fish, amphibian,reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, ofits range due to one or morecauses, including loss of habitat, changein habitat, overexploitation, predation, competition, or disease.” Id. § 2062. A “threatened species”is defined in similar fashion, except that “although not presently threatened with extinction, [it] is likely to become an endangeredspecies in the foreseeable future in the absence ofthe special protection and managementefforts required by this chapter.” Id. § 2067. The Act prohibits the “take” of any endangered or threatened species, -6- id § 2080, with “take” defined as to “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” Jd. § 86. Any interested person may petition to list or delist any species. See id. § 2071. Within 90 daysofreceipt of a petition, the Department must recommendto the Commission whether the petition contains sufficient information to indicate that the petitioned action may be warranted. Id. § 2073.5. This case concerns a petition rejected by the Commissionin this initial review. If the Commission determinesthat the petition provides sufficient information, the matter is referred back to the Department, which must then recommend within 12 months whetherthe petitioned action, in light of the best available scientific information, is warranted. See id § 2074.6. Upon receipt of the Department’s recommendation, the Commission must then make the final determination whetherto proceed with the petitioned action. Id. § 2075.5. If the Commission determinesthat the petitioned listing or de-listing is warranted, it must then issue a notice of proposed rulemaking in anticipation of the adoption of a regulation listing or de-listing the species. See id. § 2075.5(2). B. Proceduralhistory Asthe majority emphasized, the Commission hadinitially listed coho salmon south of San Francisco in 1995 as a “species” onthe basis of a status report by the Department which concluded: “These southernmost populations experience and respondto the unfavorable, adverse environmental conditions associated with the fringe of any distribution. In such areas, environmental conditions can become marginal, harsh or extreme for coho survival and, presumably, these southernmost populations have adapted to the less-than- optimal environments.” (Quoted in ROA:563; BX10,° at 47; emphasis added.) Asset forth below,plaintiffs ultimately discovered that the presumption of the Department and Commission was simply wrong; in fact, the only reason coho populations were present at all south of San Francisco wasby virtue of repeated artificial propagation, which wheneverhalted led to rapid extirpation, becausethis “fringe” habitat was entirely unsuitable for coho. By 2002, the Commission had completed a second status report which also proceeded on the false premise that the native range of coho salmon extended below San Francisco. It appears that the Commissiondid not get around to implementing the 2002 status review until August 2004. See California Forestry Ass’n v. California Fish & Game Comm’n (2007) 156 Cal.App.4th 1535, 1544. On June 17, 2004,plaintiffs Central Coast Forest Association and >The Commission designated the Superior Court file as the Record on Appeal. Referencesto that record are designated as “ROA,”followed by the page number. Because ofpotential page numbering problemswith the Record on Appeal, we include parallel cite to the primary factual submission before the Superior Court, exhibits to the Declaration of James L. Buchal (“BX”), where appropriate. ~8- Big Creek Lumber Company submitted theirPetition to redefine the southern boundary for CESA protection of coho salmon to the Department. (AR1/3:828-896.) Plaintiffs lodged further materials in support of the Petition with the Commission on January 26, 2005 (ROA:517-71; BX10 ), and on February 3, 2005 lodged the testimony of an independent,certified, Ph.D. fisheries scientist Dr. Victor Kaczynski (AR1/3:785-798). Amongother things, the petition, as supplemented, demonstrated that: e The streams south of San Francisco frequently have sandbars blocking salmon migration entirely, ” e Thedrier and “flashier” nature of precipitation south of San Francisco has been widely noticed in the scientific literature and is widely recognized to impair coho survival. | e Acentury of attempts to establish self-sustaining hatchery populations had failed because the coho were repeatedly wiped out by impossible habitat conditions. e All available scientific and popularliterature prior to the establishmentofhatcheries in the early 1900s recognized that coho werenot native to the area.’ e Extensive archeological investigation had failed to identify the presence of coho bonesin Native American middenssouth of San Francisco, though steelhead bones were often found.> Asa matter of historical accident, the petition, lodged on June 17, 2004, slightly preceded the Commission’s final 2004 decision expanding the coho “species” to a larger unit termed “central coast coho”. But the Commission did not addressthe allegations of the petition in its 2004 final decision;at all relevant times it respondedto the petition as representing an entirely separate proceeding. On March 17, 2005, the Commission issued written findings rejecting the Petition. (AR1/3:810-815.) The Commission declared that “all recent genetic analyses support the genéticdistinctiveness of coho salmon from [creeks south of San Francisco]” (AR1/3:814) and did not offer any suggestion that it was without legal powerto grant the petition. * After the petition was filed, certain dubious specimensoffish, allegedly gathered in 1895, were re-identified as representing coho presence south of San Francisco, an event that does not constitute conclusive,if indeed any, evidencethat the fish were native to the area. (See generally Plaintiffs and Respondents’ Brief at 37-41.) > Scientists wouldlater purport to discover a coho bone in 2006in the remains of an ancient Native American ocean fishingcamp on Afio Nuevo Point, a finding that has no bearing on whether the fish were native. (See generally Respondents’ Brief at 33-37.) -10- Nordid the Commission arguethat plaintiffs should have presented such evidence as was containedin the initial petition (or indeed any subsequent evidence) exclusively during the 1995 or 2004 rulemaking processes. In response to the Commission’s rejection of the petition, plaintiffs filed their initial suit on December5, 2005. OnSeptember 26, 2006, the Superior Court overturned the Commission's rejection of the Petition. Central Coast Forest Association and Big Creek Lumber Companyv. California Fish & Game Commission, Case No. 05CS01617 (Sac. Cty. Sept. 22, 2006). On November 22, 2006, the Superior Court issued a writ of mandate to the Commission directing it to reconsiderits rejection of the Petition. The Commission did not appeal the decision. In connection with the Commission’s renewedconsideration, plaintiffs supplemented the petition with substantial new expert analyses of “the most up-to-date and reliable survival data” (ROA206: BX34, at 17.) Bythis time, it had becomeapparent that the Department’s own estimates of coho freshwater and ocean survival provedthat no self-sustaining populations could persist in the area. (AR1/3:973-975; see generally petitioner’s Opening Brief at 15-19 (reviewing evidence).) Plaintiffs’ research efforts culminated in an August 2006 article in Fisheries magazine, a peer-reviewed publication of the American Fisheries Society, which supported the allegations ofthe petition, and wasalso lodged in - 11 = an support ofthe petition. (ROA633-50.°) Because the Department and Commission had placed weight in 2002 upon genetic testing of California coho populations,plaintiffs also supplementedtheir petition with a far more thorough and comprehensive genetic analysis completed in October 2005 by the National Oceanic and Atmospheric Administration. (ROA598-621: BX15, at 1-24.) This evidenceis discussed at length in the Brief of Respondents, Oct. 1, 2009, at pp. 49-54. After an extraordinarily unfair process’ that even involved the unlawful destruction of documents(as detailed at pp. 7-10 of plaintiffs’ openingbrief before the Court of Appeals), the Commission held that “the Petition to delist Coho Salmon South of San Francisco does not provide ©The Commission’s bias against the petition was further demonstrated by its shocking finding that the peer-reviewed publication failed to provide any “credible information ... upon which a reasonable person would rely”. (AR1/4:1223; see also ROA:1013-14 (Superior Court cites this as evidence of the Commission’sfailure to apply the appropriate legal standard in reviewing the evidence advancedin the Petition).) ” As several federal district courts have explained, “those petitions that are meritorious on their face should not be subject to refutation by information and viewsprovidedby selected third parties solicited by FWS[the U.S. Fish and Wildlife Service]”. Centerfor Biological Diversity v. Morgenweck, 351 F. Supp.2d 1137, 1143 (D. Colo. 2004); see also Colorado River Cutthroat Trout v. Kempthorne, 448 F. Supp.2d 170, 175-77 (D.D.C. 2006) (setting aside rejection of petition because the Service “solicited information from limited outside sources”); see also Western Watersheds Project v. Hall, 2007 WL 2790404, *6 (D. Idaho 2007). -12- sufficient information to indicate that the petitioned action may be warranted [and] denied the petition”. (Supplemental Return to the Writ, March 8, 2007.) Again the Commission made no argumentthat any of the information supplied could only have been presented in the 1995 or 2004 listing proceedings. (As explained below, this issue wasfirst raised in subsequent appellate proceedings by the Court of Appeal’s sua sponte request for additional briefing.) The Commission did, however, for thefirst time take the position that it was powerless, as a matter of law, to grant the relief requested, no matter what the factual showingin the petition. Plaintiffs returned to the Superior Ccvict which in a thorough and well-reasoned opinion (ROA:1012-1017), again found the Commission’s rejection of the Petition as unsupported by substantial evidencein light of the whole record (ROA:1015), and also noted that it was unclear that the Commission had even employed the correct legal standard to evaluate the petition (ROA:1013). Accordingly, a second writ of mandate issued compelling the Departmentto “accept Petitioners’ delisting petition pursuant to § 2074.2(a) of the Fish and Game Code, andto proceed to further review as provided in §§ 2074.4 et seq. ..? (ROA:1033-1034.) This time, the Commission appealed. Following the completion of briefing, the Court of Appeals invented sua sponte a new and even more -13- far-reaching defense: that once any listing was made, doctrines ofres judicata meantthat the only lawful basis on which it ever might be changed was a changein the status of the species once defined. The majority even overruled the Third Appellate Districts’s own prior case invoking § 1094.5 of the Code of Civil Procedure to applying a “substantial evidence”test to the rejection of CESApetitionsat the threshold stage of review. REASONS FOR GRANTING REVIEW I. THE MAJORITY’S ERROR CREATES CONFUSION CONCERNING THE MEANSOF JUDICIAL REVIEW OF COMMISSIONLISTING DECISIONS, AND UNLAWFULLY LIMITS REVIEW THEREOF. A. The Majority Establishes the Wrong Writ and Wrong Standard of Review for CESA Decisions. Until the decision below, it was well-established that review of both the initial decision concerning the sulficiertey ofa petition, and the ultimate listing decision based on the petition, both proceeded under § 1094.5 ofthe Codeof Civil Procedure. Reviewing courts have properly applied the “substantial evidence”test utilized in § 1094.5 cases. See, e.g., Natural Resources Defense Council v. Fish and Game Comm’n (1994) 28 Cal.App.4th 1104, 1114-17; accord Centerfor Biological Diversity v. Fish & Game Comm’n (2008) 166 Cal.App.4th 597 (reviewing petition rejection); see also Centerfor Biological Diversity v. California Fish and Game Comm’n (2011), 195 Cal.-App.4th 128, 132 (reviewing fee award). wo A -14- Specifically, “the standard, at this threshold in the listing process, requires only that a substantial possibility of listing could be found by an objective, reasonable observer.” Centerfor Biological Diversity, 166 Cal.App.4th at 611. The Court of Appeals, however, reasoned that the Commission’s threshold factual review ofa petition was a “quasi-legislative action of the Commission”(slip op. at 12), apparently because the final listing decisions are set forth in a rule, and appeared to suggest that review of the Commission’s decision was by ordinary mandamuspursuantto § 1085 of the Code of Civil Procedure (id. at 13). But no California court reviewing a CESAdecision has ever employed the highly-deferential “arbitrary and capricious”test whichis utilized in § 1085 cases. See generally American Coatings Ass’n v. South Coast Air Quality Management (2012) 54 Cal.4th 446, 461 (distinguishing “substantial evidence” and “arbitrary and capricious”tests). Review under § 1094.5 of the Code of Civil Procedure was not appropriate, according to the majority, because the Commission’s rejection of a petition was not a final action. But there were no further administrative proceedingsavailable after the Commission rejected the petition; the Commission’s decision wasfinal and reviewable. The majority opinion has it backwards: in rejecting a petition, the -15- Commission makesa specific quasi-judicial decision reviewable under § 1094.5; its final listing decision enacted by quasi-legislative rulemaking would be reviewable under § 1085 but for the Legislature’s specific grant of more probing review under § 1094.5.° B. The Majority’s Invocation of Res Judicata in a Quasi- Legislative Context Is Utterly Inappropriate. The dissent noted that if indeed the rejection of a petition was a quasi-legislative decision, it was odd indeed for the majority to be importing considerationsoffinality that have weight,if at all, in the context of attacks upon ajudicial decision. (Dissent at lsee also id. at 5 (“Res judicata does not bar new legislative action”).) The Commission’s coho rulemaking decisions in 1995 and 2004 were not specifically directed at the rights of plaintiffs or even at the rights of any particular group to which plaintiffs belong. Rather, the Commission wascreating new law for the treatment ofa particular class of fish, a law applicable to all Californians. ® The majority found the Legislature’s intent for less deferential review to apply only to the final listing decision because § 2076 refers to § 1094.5 review offindings “pursuant to this section;”the majority interpreted “this section” to mean “the preceding section,” whichgovernedfinal listing decisions. In the Court of Appeal, plaintiffsfiled an extensive collection of the legislative history to show that the Legislature had intended to have the heightened standard of review apply to all listing decisions underthe Act, and by accident had left § 2076 as self-referential and formally meaningless if readliterally, because it was at the last minute choppedoutofa larger section that contained both theinitial and finallisting decisions. See generally Respondents’ Motion for Judicial Notice, Feb. 24. 2012; Respondents’ Supplemental Brief, Feb. 26, 2012, at 8-11. -16- This is quintessentially legislative decisionmaking,not judicial decisionmaking. . The majority’s decision is contrary toa large body of law holding that issue preclusion can only apply whenthe proceedings are “ofa sufficiently judicial character.” Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 867; see also Y.K.A. Industries, Inc. v. Redevelopment Agency ofthe City ofSan Jose (2009) 174 Cal.App.4th 339, 357. This Court has explainedthat: 6**... [i]ndicia of [administrative] proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given underoath or affirmation; a party's ability to subpoena,call, examine, and cross-examine Witnesses, to introduce documentary evidence, and to make oral and written argument; the taking ofa record ofthe proceeding; and a written statement ofreasonsfor the decision.”” Murray, 50 Cal.4th at 867-68 (quoting Pacific Lumber Co. v. State Water Resources Control Board (2006) 37 Cal.4th 921, 944). The premiseofthis line of cases is that those bound by quasi-judicial proceedingsparticipate in them,directly or by representation. Serious questions of due processoflaw arise in holding, as did the majority, that citizens might be legally bound by proceedings of which they may not even have been aware.’ And evenifthey did participate, the requisite pal t ee, ” One plaintiff, Big Creek Lumber Company, did participate in coholisting rulemaking. -17- procedural indicia for resjudicata discussed above are not present here, in either the procedures for 90-day review ofpetitions (§ 2074.2), or for final review of accepted petitions (§ 2075.5). Even the statute concerningfinal action merely directs the Commission to make findings “[a]t the meeting scheduled pursuant to Section 2075.” (§ 2075.5.) There is no testimony given underoath, and noability to subpoena,call, examine, and cross- examine witnesses—noneofthe traditional indicia of an evidentiary hearing. Neither proceeding is a “decision madeas the result of a proceeding in which by law a hearing is required” within the meaning of § 1094.5 of the Code of Civil Procedure § 1094.5. Significantly, the majority agreed that but for the legislature’s determination in § 2076 of the Fish and Game Code to provide more searching judicial revlwfor petition-related findings through § 1094.5, review of the Commission’s findings would otherwise arise under § 1085. The whole rulemaking design ofthe statute is based upon the premisethatthe status ofspeciesis not like a set of rights that may befixed under existing law;it is a policy decision based on an ever-expanding pool of knowledge concerning species status. Like any rule,a listing decision can and should always be subject to legislative revision in the light of new - 18 - evidence. This is clear from the design ofthe statute, to which we now turn. I. THE CALIFORNIA ENDANGERED SPECIES ACT REQUIRES THE BEST AVAILABLE SCIENTIFIC INFORMATION TO BE CONSIDERED IN DECISIONMAKING, WITHOUT THE EXTRA-STATUTORY LIMITATIONS IMPOSED BY THE MAJORITY. The core of the majority decision is the holding that “the delisting procedure is not a means by which new information may be submitted on the merits ofa final [listing] determination.” (Slip op. at 4.) No limitation on the nature or subject of information that may appearin a delisting petition appears in the statute. Rather, the statute provides for a perfect symmetry betweenlisting and delisting decisions: “§ 2070. The commission shall establish a list of endangered species and list of threatened species. The commissionshall add or remove speciesfrom eitherlist if it finds, upon the receipt of sufficient scientific informationpursuant to this article, that the action is warranted. “§ 2071. The commission shall adopt guidelines by which an interested person maypetition the commission to adda species to, or to remove a species from either the list of endangeredorthe list of threatened species.” The Legislature’s concern is that sufficient scientific information support whichever determination the Commission makes,to list, or delist, and to that end the Legislature gave specific guidance containing the contents of a -19- ‘a! y \ / petition—with the same information relevantto both listing and delisting petitions: “§ 2072.3. To be accepted, a petition shall, at a minimum, include sufficient scientific information that a petitioned action may be warranted. Petitions shall include information regarding the population trend, range, distribution, abundance, and life history of a species, the factors affecting the ability of the population to survive and reproduce, the degree and immediacyofthe threat, the impact of existing management efforts, suggestions for future management, and the availability and sources of information. Thepetition shall also include information regarding the kind of habitat necessary for species survival, a detailed distribution map, and any other factors that the petitioner deemsrelevant.” The Department of Fish and Gameis boundbythese same standards whatever recommendation it might make (see § 2072.7), and the Commission is boundto review specieslistings every five years “based on information which is consistent with the information specified in Section 2072.3 and whichisthe best scientific information available to the Department” (§ 2077(a)). The Legislative commandfor continuing review on the best available scientific information demonstrates an understanding that the relevant information available concerning listing decisions may change over time, and the Department is bound to respond with listing decisions based on new information, if any. According to the majority, however, “Aninterested person has ample opportunity to tender scientific information to the department for consideration by the department and the Commission during the administrative -20- process leadingto final[listing] decision. What an interestedperson may not do is tender new information in a later proceeding that challenges thegrounds upon which the initial decision has been rendered.”. (Slip op. at 13-14; emphasis added & footnote omitted.) The majority advanced no argumentsin favor of this somewhat extraordinary position other than general concernsoffinality. But solicitude forfinality is manifestly inappropriate in the context of a statutethat calls for repeated application of the best available scientific information. It should be noted that any challenge to the Commission’s prior listing determination based on new information comingto light after the decision would never be appropriate underthe majority rule. After all, ina review ofa listing decision under § 1094.5, judicial review “is conducted solely on the record of the proceeding before the administrative agency.” Sierra Club v. California Coastal Comm’n (2005) 35 Cal.4th 839, 863 (citing and quoting multiple cases). New information is not admissible. So even if plaintiffs had all the evidence ultimately advanced in support of their petition in hand before the statute of limitations had run on the time to challenge the 1995 or 2004listing decisions, noneofthat evidence could have beenusedatall. The Legislature provided no such anti-scientific procedure for the managementof California’s wildlife. Rather, citizens can compelthe Commission to consider new information by the express remedy in the -21- statute: the petition process. The dissent properly recognized that exclusion of new evidence wasnot consistent with the language,structure, goals of CESA: “The majority opinion is simply wrong in holding judicial finality bars legislative reconsideration. As can be seen, the statute clearly provides for reconsideration ofpriorlisting decisions even whenthelisting decisionis final for purposes ofjudicial review. The Commission’s prior decisions are not irrelevant to a later reconsideration, but neither are they res judicata; otherwise they would underminethe statutory structure and policy allowing for revising legislative listing decisions based on new orpreviously undiscovered scientific knowledge.” (Dissent at 2.) The majority cited a regulation enacted by the Commission in which the Commission had declared that a species might be delisted only “if the Commission determinesthat its continued existence is no longer threatened”. (Cal. Code. Regs. tit. 14, § 670.1.) The Court ofAppeals interpreted this regulation to embody an overarching commandthat a petition to delist a species be limited to “events that occurafter the listing of the species.” (Slip op. at 15.) The Court of Appeals did not explain why new scientific information that becameavailable after the listing of the species was not such an “event”. For example, subsequent to the 2004 listing, an extraordinarily extensive study of the genetics of California coho salmon becameavailable which undermined entirely the premise that the coho south of San Francisco were properly considered part of somelarger a -22- | coho ESU."" The “continued existence” of coho south of San Franciscois “no longer threatened” within the meaning ofthe regulation if the new information showsthey had no “continued existence”in thefirst place. To the extent the regulation is read to forbid such an argument— limiting petitioner to presenting only information about changesin species numbers,habitat, etc. after the listing—it is invalid. As the dissent noted, “[a]dministrative regulations that alter or amendthe statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations.” (Dissent at 3 (quoting Yamaha Corp. of America v. State Board ofEqualization (1998) 19 Cal.4th 1, 16 (Mosk,J., concurring).) As the dissent explained, “limiting delisting to when a species is no longerthreatened arbitrarily limits the Commission’s statutory authorization to delist wheneverit is warranted.” (/d.) It is particularly arbitrary for the Commission now to insist that its authority is artificially limited, when it repeatedly and successfully defended a broadvision ofits authority to list gvoups of animals extending far below the taxonomic or common understanding of the statutory term “native species.” It is odd indeed to grant the Commissionvirtually ' In adopting their “ESU” listing policy, federallisting authorities have properly emphasized that genetic information, though the only evidence cited by the majority is of very limited utility in species definition. A full exposition of the significance of the available genetic information concerning cohois beyondthe scope ofthis petition for review. -23 - a unlimited powerto define any particular group of animals as a “native species,” and at the same time declare that the power once exercisedis beyondall challenge or correction no matter what advancesin scientific knowledge may arise thereafter. The history of determinations showsthe plastic and evolving nature of species definition. Here, the Commission first identified the coho south of San Francisco in 1995 as a “species,” then later determined in 2004 that they were part ofa larger “evolutionarily significant unit” that could also be a “species;” and there is every indication that scientific knowledge concerning species definition will continue to evolve. The majority also repeatedly cites languagein the five-year reconsideration provision asking the Commission“to determineif the conditionsthat led to the original listing are’still present”. (Slip op.at 10, 14, 16; emphasis deleted.) The Court of Appeals interpreted this language to mean that after a listing, all further consideration was “limited to the ‘present’ condition of the species”(slip op.at 16), fundamental questions such as whetheror not the group of animals even constituted a species could never again be considered. No suchlimitation appearsin thestatute. If the Commission were in fact forbidden from any further consideration of species definition, the coho south of San Francisco would still be their own species. Put another way, if the Commission can lumptwospecies together -24- later on, why can’t it split them apart? Il. THE EVIDENCE AND ISSUES RAISED BY THE PETITION ARE IMPORTANT AND WORTHYOF CONSIDERATION. The majority did not discuss or review the new evidence presented by plaintiffs, brushing off their evidentiary showing with a referencetoits subsequent decision affirming the 2004 coholisting in California Forestry Ass'n v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535 (CFA). The Court referred to the “wide discretion” the Commission enjoys in listing determinations, and simply declared the 2004 decision “binding on respondents”' Asthe dissent explained, “the dispositive issue is not whetherthe 1995 and 2004listing decisionsare final and section 2076 bars further judicial review. That statute does not apply here. Contrary to the holding of the majority opinion, the dispositive issue is whetherplaintiffs petition to the Commission includes sufficient scientific information that the delisting ‘may be warranted,’ regardless of when the listing decision was made. (§§ 2072.3, 2074.2, subd. (a).) This was the standard which the trial court on two occasions ordered the Commission to '' There is a suggestion by the majority thatplaintiffs “also challenge the 2004 determination”(slip. op at 17) in these proceedings, but no suchrelief wasever sought;at all relevant times, plaintiffs have merely sought full and fair consideration oftheir petition, andjudicial review of the Commission’s rejection ofthat petition. See also Dissentat 1 (dissent notes that “no complaintor petition wasfiled in a court challenging the Commission’s 1995 and 2004 decisions”). -25- apply andalso correctly determined the Commission had failed to apply.” (Dissent at 2.) We donotin this petition for review discuss in detail the evidence presentedin the petition to the Commission. As noted above,the fact that its contentions are supported by a peer-reviewed article published by the American Fisheries Society should convince aniy reasonable observer that the petition met the somewhatlenient standard to secure further, in-depth review by the Commission. Rather, we discuss the important legal issues raised by the Commission’s response to the petition. First and foremost in importanceare the issues related to species definition. Notwithstanding CESA’s limitation to “species,” the Commission haspreviously persuaded the Court ofAppeals that it had discretion to list (or not list) any particular subgroup of animals as a “species” within the meaning of the Fish and Game Code by reference to whatthe Court of Appeals called the Commission’s “longstanding adherenceto the policy that the CESA allowslistings of evolutionarily significant units.” CFA, 156 Cal.App.4th at 1546 (emphasis added). The Court of Appeals held, in substance, that the Commission could follow a federal policy developed to focus administrative discretion in exercising express statutory authority under the federal Endangered Species Act for listing “distinct population segments”oflarger species. -26- | Specifically, the federal government has through formal notice and commentprocedures, outside any particular listing decision, promulgated whatit calls the “evolutionarily significant unit” (“ESU”) approach to determining whether anyparticular group of animals qualifies for protection. The cornerstone ofthis federal policy is that to list a group of animals as an ESU twofindings are required: “() It must be substantially reproductively isolated from other conspecific population units; and (2) It must represent an important componentofthe evolutionary legacy of the species.” 56 Fed. Reg. 58,612, at 58,618. Salmontendto return to their native streamsor rivers, but significant straying rates cast doubt uponthefirst criterion. The primary dispute in this case involves the second criterion. An ephemeral local population that can only persist south of San Francisco with constant hatchery supplementation, becausenatural habitat conditions inevitably wipe them out, cannot possibly be “an important componentofthe evolutionary legacy ofthe species.” See id. (“if the population became extinct, would this event represent a significant loss to the ecological/genetic diversity of the [entire coho salmon] species?”); see also id. at 58,616 (“loss of isolates .. . would generally not represent an irreversible loss of genetic diversity because most -27- of the genetic diversity . . . wouldstill reside in the parent population”).'” Before the Court of Appeals in this case, the Commission’s brief on one handassertedthatits coholisting decisions were “[p]aralleling the federal approach” (Appellant’s Br. at 14). But the Commission also denied entirely that it follows the federal definition of an ESU. (Appellant’s Br. at 26 n. 7.) As bestplaintiffs can tell, the Commission now articulates the view that an “evolutionarily significant unit” need not be significantatall. (Id.) This position underminesentirely the Court of Appeal’s earlier rationale in the CFA case for granting the Commission the powerto list groups of animals that may befarless extensivethan a “species.” The majority decision is also utterly contrary to the proclamation in the CFA casethat “the Legislature intended that ‘wild fish,’ as opposed to '? When Congress was considering whetherto give federal regulators ESU listing authority, the General Accounting Office warned that the squirrels in a single park might belisted (see S. Rep. No. 96-151, 96th Cong., Ist Sess. 7 (1979)); the federal ESU policy’s insistence uponthelisted group represent an important componentin the evolutionary legacy ofthe species wasintended, in part, to respondto that criticism. NOAA Technical Memorandum,“Definition of “Species” under the Endangered Species Act: Application to Pacific Salmon” (Mar. 1991) (http ://www.nwfsc.noaa.gov/publications/techmemos/tm194/waples.htm). Thereis no indication that the California Legislature ever considered granting the Commission the powerto list groups of animals that did not constitute an “entire” species. '3 Here there are thousands ofpopulations of coho salmonstretching from northern California around the Pacific rim to Siberia, and abundant exemplars of the species can be purchased for a few dollars a pound at any supermarket. - 28 - hatchery fish, be protected under the CESA.” CFA, 156 Cal.App.4th at 1552. A cornerstone of the petition was thedemonstration that coho south of San Francisco were only maintained by hatcheries, since it was nottheir native habitat, and that operation of these hatcheries not only threatened native steelhead (the coho eat them), but also drained recovery resources from self-sustaining coho populations to the north. The Commission declared that plaintiffs’ concern for the steelhead they have long worked to protect wasentirely irrelevantto the listing decision. But at the least, the Commission owes a duty under Topanga Ass’nfor a Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d 506 to explain whyit insists'on extending CESA to protect what can only be properly understood as hatchery fish, particularly given the undisputedly adverse effects on genuinely native wild steelhead (e.g., AR1/2:583.) The Commission’s ever-changing viewsofits listing powers and responsibilities confirm the desperate need for this Court’s guidance on the fundamental questions presented. The Commission has never conducted any formal rulemaking process concerning any of these questions, instead stumbling from listing to listing and articulating arbitrary litigation positions. Ifthe Commission’s ad hoc decisions once madecan never be reconsidered in light of advances in scientific knowledge. the purposes of CESAwill be utterly subverted. -29- CONCLUSION The Court of Appeals decision replaces CESA’s plain meaning, and established law confirming that meaning, with an extraordinarily-limited construction contrary to the plain languageand broader purposes of the Act. Plaintiffs therefore request that this Court grant review of the Court of Appeals decision. If review is not eranted, at the least, the decision should be ordered depublished, to prevent continuing confusion in CESA application. DATED: January 22, 2013. | vO crsyneyey oo Lf ms L. Buchal, SBN 258128 _ Murphy & Buchal LLP 3425 SE Yamhill Street, Suite 100 Portland, OR 97214 Tel: 503-227-1011 Fax: 503-573-1939 Atty. for Plaintiffs and Respondents \ -30-— a r g a f R I on i s e ce re a p O T E e S & CERTIFIED FOR PUBLICATION pee pa ee COPY serwwee ned ET EW IN THE COURT OF APPEALOF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) CENTRAL COAST FOREST ASSOCIATIONetal., C060569 Plaintiffs and Respondents, (Super. Ct. No. 07CS00851) Vv. CALIFORNIA FISH AND GAME COMMISSION, Defendant and Appellant. APPEALfrom a judgmentof the Superior Court of Sacramento County, Gail D. Ohanesian, Judge. (Retired Judge of the Sacramento Sup. Ct. assigned by the Chief Justice pursuantto art. VI, § 6 of the Cal. Const.) Reversed. Edmund G. Brown,Jr., and Kamala D. Harris, Attorneys General, Mary E. Hackenbracht and Kathleen A. Kenealy, Senior Assistant Attorneys General, Sara J. Russell, Supervising Deputy Attorney General, Tara L.Mueller and Cecilia Dennis, Deputy Attorneys General for Defendant and Appellant. Deborah A.Sivas and Robb W.Kapla for Environmental Law Clinic, as Amicus Curiae on behalf of Defendant and Appellant. Murphy & Buchal and James L. Buchalfor Plaintiff and Respondent. i l SEE DISSENTING OPINION The California Endangered Species Act (Fish and G. Code, § 2050 et seq.; hereafter CESA)! provides that a wild, native, species may be added to or removed from the regulation listing endangered species by a finding of the Fish and Game Commission (Commission) based on scientific information from the DepartmentofFish and Game (department)?. (§§ 2074.6, 2075.5.) The finding constitutes a final, quasi-legislative, determination to enact a regulationlisting or delisting a species as endangered.3 ($ 2070.) The standard for adding a speciesis thatit is in serious danger ofextinction. (§ 2062.) The standard for removing (delisting) a speciesis that its “continued existence is no longer threatened [with extinction] ....” (Cal. Code Regs., tit. 14, § 670.1, | subd.(i)(1)(B),italics added.) . : The procedure for adding or removing a species from the list of endangered species has twostages. It is initiated by a petition from an interested person ora recommendation from the department. (§§ 2071, 2072.7.) The petition or recommendation must contain scientific information relating to the presentability of the species to survive and reproduce. (§ 2072.3.) Thepetition is in effect an application for consideration of a proposal to adopt or amend a tule. In the first or preliminary stage the petition and the department’s evaluation ofit are submitted to the Commission for it to decide whether to accept thepetition for consideration. (§§ 2073.5, 2074.2.) If accepted, the department submits a recommendation and written report to the Commission “based uponthe bestscientific information available... .” (§ 2074.6.) In the final stage, the . ey , :ae | Undesignated statutory references are to the Fish and Game Code. 2 Effective January 1, 2013, the departmentwill be renamed the Departmentof Fish and Wildlife. (Stats. 2012, ch. 559, § 5.) The CESAprovides for twolists, a list of endangered species and list of threatened \ species. (§§ 2062, 2067, 2070.) Since the procedureis the samefor both lists andthis ——t case concerns only endangered species werefer to that list in the opinion. 3 24 Commission determines, based on the department’s scientific report, whether the petitioned action is warranted. (§§ 2075, 2075.5.)4 A final determinationis judicially reviewable pursuant to Codeof Civil Procedure section 1094.5. (§ 2076.) The Commission added coho salmonin streams south of San Francisco (Santa Cruz County) to the list of endangered species in 1995 pursuant to a petition from the Santa Cruz County Fish and Game Advisory Commission. The Commission joined them with coho salmon north of San Francisco (to Punta Gorda) in 2004 as membersofthe Central California Coast (CCC)evolutionary significant unit (ESU)§ pursuantto a petition from the Salmon and Steelhead Recovery Coalition. The respondents Central Coast Forest Association and Big Creek Lumber Company ownand harvest timber from landsin the area of the coho salmon spawning streams in the Santa Cruz Mountains. The respondent Big Creek Lumber Company received notice of the 1995 proceeding and participated in the 2004 proceeding butdid not seek review ofthe final decision in either case, ‘However, just before the 2004 decision becamefinal, the respondentsfiled a petition seeking to redefine the southern boundary of the CCC ESU to remove(delist) coho salmon in coastal streams south of San Francisco from the register of endangered species. The respondents sought review in the superior court, which ruled that the petition should be accepted for consideration. 4 The CESAalso provides for the adoption of emergency regulations. (§ 2076.5.) > An ESUis a population of organismsthat is considered distinct for purposes of conservation. The determination whetherthe coho salmon constitute an ESU is a matter ofjudgmentand expertise. An ESUis included withinthe term “species or subspecies” in sections 2062 and 2067. (California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1548-1549.) 6 The 2004 decision was the subject of review by thiscourt, which affirmed the decision of the Commission.(California Forestry Assn. v. California Fish & Game Commission, supra, 156 Cal.App.4th 1535.) The court directed the Commission to reexamine the petition. The Commission did so and rejected the petition a second time. The trial court again ruled for the respondents and the Commission appeals from that decision. The respondents do not claim that the coho salmon became extinctafter the 1995 oe nnn decision of the Commission, the regulatory standard for delisting. Rather, their delisting ee ee petitionseeks to show that there wasnobasis for the Commission’s 1995 finding that coho salmonis an endangered species. The respondents assert that there never were wild, native, coho salmon south of San Francisco and that the 1995 decision was “undertaken without benefit of the information in the 2004 Petition [and] proceededonthefalse premisethat the native range of coho salmon extended below San Francisco.” They argue that “[t]he Petition may be understood . . . as demonstrating that the presumption [that wild, native, coho existed] which backedup the 1995 listing was simply wrong.” (Italics omitted.) pam 4 The petition fails at the outset because petition to delist a species may not be employed to challengea final determination of theCommission. The delisting procedure is not a means by which new information ma mitted on the merits ofa final determination. The exclusive meansofJudicial review of the merits is by administrative — mandamus. (§ 2076.) Any other conclusion would undermine the finality of the administrative decision and bypass the standard by which a delisting decision is to be judged. Since a delisting petition may not be employed atall to challenge a final decision of the Commission it need not be reviewed at the preliminary stage. | Weshall reverse the judgmentofthe superior court.’ sae 7 We haveno occasion to determinethe applicable period oflimitations for review ofa final determination. of the Commission. oP Facts A. The 1995 Commission Decision . In 1993 the Santa Cruz County Fish and Game Advisory Commissionfiled a petition requesting the listing of coho salmon in Scott and Waddell creeks in Santa Cruz County south of San Francisco as endangered. In 1994 the Commission designated the coho salmonas a candidate species. (§ 2068.) It provided notice thereof to respondent Big Creek Lumber Company. The department conducted a status review and prepared a rulemakingfile for the Commissionsetting forth scientific information showingthat the coho salmon was an endangered species and recommendingthatit be listed as endangered. The Commission accepted the recommendation and enacted a rule listing the coho salmon as endangered,effective December31, 1995. (Cal. Code Regs., tit. 14, § 670.5, subd. (a)(2)(N), Register 95, No. 48 (December3 1, 1995).) The Commission’s determination states it was “based on thebest available scientific information regarding the distribution, abundance, biology and nature of threats to coho salmon south of San Francisco Bay ....” The Commission found that “[¢]oho salmon numberssouth of San Francisco Bay have declined over98 percentsince the early 1960’s and currently are restricted to one remnantpopulation in Waddell Creek, one small naturalized (hatchery-influenced) population in Scott Creek, and a smal] hatchery-maintained, non-native run in the San Lorenzo River, Santa Cruz County. There is minimal possibility of successful natural expansion of the remnant Waddell and Scott Creek populationsto neighboring drainages dueto the functional extinction of two ofthe three broodyearlineages, inadequate numbersofadult coho to naturally produce the necessary founder populations for successful recolonization of streams, loss of genetic and population viability, and general lack of secure adjacent suitable habitat.” The department recommendedrecovery measures. “Thefirst priority should be to set minimum flows necessary to sustain the coho salmon onScott and Waddell Creeks. iy 5 ... [9] Following the establishment and maintenance of minimum flows,restoration of coho salmon habitat should beinitiated to produce enough habitat to allow for more juvenile coho to be reared in Scott and Waddell Creeks. Instream habitat restoration in Scott and Waddell Creeksis a viable option [because] County and State regulations, land ownership patterns, and improvementin presentlanduse practices can bring aboutbetter control of accelerated erosion in the watershed.” The Commission published a notice ofits determination and distributed it to a list of interested persons including respondent Big Creek Lumber Company. B. The 2004 Commission Decision | Five years later, in July 2000, the Commission received a petition from the Salmon and Steelhead Recovery Coalition to add coho salmon from the area north of San Francisco Bay to the Oregon bordertothelist of endangered species. In November of 2000, the department recommendedto the Commission that it accept the petition for consideration. In April of 2001 the Commission, helda hearing and took testimony from numerous persons including a representative of respondent Big Creek Lumber Company. In April of 2002 the department submitted a status report identifying two groups of coho salmon, one from Punta Gordato the Oregon border, referred to as the Southern Oregon/Northern California Coasts ESU (SONCCESU) and the other from south of Punta Gorda to the San Lorenzo River in SantaCruzCounty, referred to as the CCC ESU. _ The departmentbased its determination on thescientific analysis of the reproductive isolation and genetic differences between the two groups. In April of 2002 the department submitted a written report on the status of the species to the Commission as required by section 2074.6. On May 28,2002, the department recommendedto the Commissionthatit “list coho salmon north of Punta Gorda (Humboldt Co.) as a threatened species and coho salmon south of Punta Gorda (Humboldt Co.) .. . as an endangered species... .” Coho salmon south of Punta Gorda were joined in the report 6 with coho salmon south of San Francisco as the ccc ESU, On August 30, 2002,the Commission found “that coho salmon north of Punta Gorda and coho salmon south of Punta Gorda warrantlisting as [respectively] threatened and . . . endangered,” but delayed rulemaking for one year while the department prepared a recovery plan. On February 11, 2004, the Commission proposed a rule to “add the populations of coho salmon between San Francisco Bay and Punta Gorda, California, to the [California Code of Regulations, title 14,] Section 670.5 list as an endangeredspecies .: . .? On February 25, 2004, the Commission staff issued a notice of intent to begin the “rulemaking process to add coho salmon north of Punta Gorda and coho salmonsouth of Punta Gordato the list [respectively] of threatened and endangeredspecies.” On August5, 2004, the Commission amended the 1995 regulation that listed coho salmon south of San Francisco as endangered by joining.them with coho salmonnorth of San Francisco. Therule, to be found at California Code of Regulations,title 14, section 670.5, subdivision (a)(2)(N), declares that the following species are endangered: “Coho salmon... south of Punta Gorda (Humboldt County), California.” The context of the regulation makesclear that south of Punta Gorda included the streams south of San Francisco, the subject of the 1995 final determination of the Commission. As noted, this court upheld the 2004 listing in California Forestry Assn. v. California Fish & Game Commission, supra, 156 Gal.App.4th 1535, C. The Delisting Petition Although the respondent Big Creek Lumber Companywasgivennotice of the 1995 proceeding and participated in the 2004 proceeding it did not seek review ofthe Commission’s findingsin either matter pursuant to Code of Civil Procedure section 1094.5. Rather, the respondents initiated a separate, delisting proceeding asking that the Commission redefine the southern boundary of the CCC ESU to remove coho salmonin streams south ofSan Francisco from the rule listing endangered species. The respondents’ delisting petition was filed on June 17, 2004, two monthsbefore the Commission’s final action in the 2004 Proceeding. It states that “the petitioners hereby requestthat the California Fish and Game Commission redefine the southern boundary ofthe Central California Coast coho salmon evolutionary significant unit [ESU] to exclude coastal waterways south of San Francisco,thereby delisting coho salmon southof San Franciscofrom thelist of endangered or the list of threatened species.” The petition makes clear that it was challenging the facts underlying the 1995 decision placing the coho salmononthelist of endangered species. It stated: “[T]he Status review prepared by the California Department of Fish and Gameindicating whetherthe petitioned action is warranted must be based on the best scientific information available.|8] The preponderanceofpreviously unconsideredscientific and historical evidence presented herein clearly showsthat the legal standard forlisting under the California Endangered Species Act hasnot been met. [{] Archeological evidence strongly supports the concept that coho salmonpopulations were not present prehistorically in coastal streams south of San Francisco. ... [H]arsh environmental conditions for coho survival beyond the fringe of their range (south of San Francisco) prevented the establishment of permanent populations in this area. Thescientific and historical record since the arrival of Europeans substantiates the absence of coho populations. In particular, professional ichthyologic surveys in the latter part of the 1800s report the absence of coho south of San Francisco.” Further, “[a]lthough no single scientific disciplinary source may be sufficient to conclude unequivocally that coho are or are not native south of San Francisco,the mutually consistent patterns disclosed 8 The referenceto “status review”is to the written report ofthe department upon whicha final determination by the Commissionis based. (§§ 2074.6, 2075) In this caseit refers to the rulemakingfiles underlying the 1995 and 2004final determinations by the Commission. independently by multiple scientific disciplines and historical records provide a preponderance of evidence. This same evidence also indicates that populations of coho salmon south of San Franciscoare not an important componentin the evolutionary legacy of the species. Most importantly, no petition or [department] status review presents any legitimate or compelling evidence to the contrary. Therefore, coho salmon populations south of San Francisco do not constitute nor are part of any evolutionary significant unit.” The respondents further assert that the department’s “status reviews of coho salmon in 1995 and 2002... were undertaken withdut benefit of the information in {their} 2004 Petition.” The 2004 petition explains that “[i]n order to qualify forlisting under the [CESA], a species or subspecies must be native and represent an important componentin the evolutionary legacy of the species. Additionally, the status review prepared by the [department] indicating whether thepetitioned action is warranted must be based on the bestscientific information available. The preponderanceofpreviously unconsideredscientific and historical evidence presented herein clearly showsthat the legal standardforlisting under the [CESA] has not been met.” The respondentsassert that “{s]cientific and historic research unequivocally establishes that there have never been permanentcolonies of native coho in these streams. Theartificially introduced and hatchery maintained coho populations south of San Francisco are not native, carry no important genetic heritage and do not qualify for listingas an ESUorpart of an ESU under the CESA.” | In February of 2005 the Commission considered the delisting petition and denied it consideration on the groundthatit did not contain sufficient scientific information that delisting may be warranted. It ratified the denial in March of 2005 and published a notice of its findings. The petitioners challenged the rejection of the petition in the superior court which remanded the matter to the Commission in November 2006. The Commission again denied the petition in March of 2007 andfiled a notice ofits findings and statement of reasons in April of 2007. The Commission joined issue with the 9 respondentsin considering the petition pursuantto the thresholdtest of section 2072.3, whether the petition contained sufficient information to indicate that the petitioned action may be warranted. The Commissionsaid:“One of the most obvious omissions in the petition is a failure to include specific information that the species in question is ‘no longer threatened by any one or any combination ofthe . . . factors’ ” set forth in California Code of Regulations,title 14, section 670.1, subdivision (i)(1)(A). As noted this is the standard for judging the substantive merits of a petition to delist a species. The superior court again overturned the Commission’s decision and the | Commission’s appealis taken from the resultingjudgment. DISCUSSION * I. The Administrative Procedure for Review of a Petition to Add or Remove a Species from the List of Endangered Species The dispositive issue in this case is the statutory means for Judicial review ofthe Commission’s final decision to list a species as endangered. Webegin with an overview of the CESA procedure. | The procedureforthelisting or delisting of a species as endangeredis a rulemaking procedure and must comply with the rulemaking procedures of the Administrative Procedure Act (Gov. Code, § 11340 et seq.). (§ 2075.5, finding (2).) The CESAsets forth the procedure by which the facts may be determined whethera native (§ 2062), wild (§ 45) speciesis threatened with extinction. The procedureis initiated by a petition from an interested person. (§ 2071.) It also maybeinitiated by the department, either by a direct recommendation to the Commission. (§ 2072.7) or by a recommendation occasioned by the department’s periodic review “to determine if the conditionsthat led to the original listing are still present.” (§ 2077, subd.(a), italics added.) A petition or recommendation initiating an action must set forth “scientific information [on] the population trend, range,distribution, abundance, andlife history of [the] species.” 10 (§ 2072.3.) A recommendation from the departmentinitiating a proceedingis treated as a petition and mustincludethe information in section2072.3. (§§ 2072.7, 2077.) A petition is in the nature of an application to the Commission to consider a proposal to adopt or amend arule. (See American Board ofCosmetic Surgery v. Medical Board of California (2008) 162 Cal.App.4th 534.) The Commissionshall publish notice in the California Regulatory Notice Register of the receipt ofthe petition. (§ 2073.3.) The procedure has two stages. Atthefirst or preliminary stage the departmentis directed to evaluate a petition “onitsface... in relationto other relevant information the department possessesor receives ... .” (§ 2073.5, subd.(a),italics added.) Any “person may submit information to the department relating to the petitioned species duringthe [department’s] evaluation ofthe petition ... .” (§ 2073.4.) The departmentthenshall recommend to the Commission in a written report whetherthe “information contained in the petition .. . is sufficient . . . to indicate that the petitioned action may be warranted ....” (§ 2073.5, subd. (a)(2).) The Commission must decide whetherto acceptthe petition for consideration. (§ 2074.2, subd, (a)(2).) If accepted for consideration by the Commission, a secondorfinal stage requires that the Commission decide whetherto grant the petition (§ 2075.5) based upona written report bythe department containing “the best scientific information available to the department” (3 2074.6). Although“affected [or] interested parties”are entitled to notice of the proceeding and may submit “data and comments”to the departmentfor inclusion in the department's report, in makinga final determination the Commission considers only the department’s recommendation and scientific data in the report. (§§ 2074.4, 2074.6, 2075; Cal. Code Regs., tit. 14, § 670.1, subd.).) It is clear from these procedures that the Commission must depend uponthedepartment’ S$ expertise in making a decision. If the petition is granted, the Commissionis directed to publish a notice of proposed rulemaking and comply with the rulemaking provisions of the Government Code. (§ 2075.5, finding (2).) 11 II The Exclusive Means of Review of a Final Commission Decision Is by Administrative Mandamus Section 2075.5 provides for a final decision of the Commission whethera species is endangered. The nextsection provides that “[ajny finding pursuantto this section is subject to judicial review under Section 1094.5 oftheCode of Civil Procedure.” (§ 2076, italics added.) Theuse ofthe singular “this section” logically refers to the immediately preceding section 2075.5. The statutory term which encompasses morethan onesection is “article” and the CESA is organized onthatprinciple. Hence, the exclusive means of review of the merits ofa final decision of the Commissionis by administrative mandamusas provided in section 1094.5 of the Code of Civil Procedure.? “[I]t follows that [the agency decision] can be vacated only in the manner and uponthegroundsthat would justify the vacation of a judgment rendered by a court ofrecord, and a mere error in the adjudication of a question offact, not procuredby fraud extrinsic or collateral to such question, is not a ground upon whichit may be vacated,since,if it were, no adjudication of a question offact would ever become final, so long as new evidence could be had....” (People v. Los Angeles (1907) 133 Cal. 338, 342-343.) The action under review is the quasi-legislative actionofthe Commission. The Commission is granted the authority to “establish [by rule] a list of endangered species ? Code of Civil Procedure section 1094.5 provides, in relevant part: “(b) The inquiry in such a case shall extend to the questions whetherthe respondenthas proceeded without, or in excessof, Jurisdiction; whether there wasa fair trial; and whether there was any prejudicial abuse ofdiscretion. Abuse ofdiscretion is established if the respondent has not proceededin the mannerrequired by law,the order or decision is not supported by the findings,or the findingsare not supportedby the evidence. [{] (c) Whereit is claimedthatthe findings are not supported by the evidence [in the absenceof a vested right] abuseofdiscretion is established if the court determinesthat the findingsare not supported by substantial evidencein the light ofthe whole record.” 1 . Yes we12 and a list of threatened species.” (§ 2070.) A final decisiontolist a species gives rise to “a notice of proposed rulemaking pursuantto Section 11346.4 of the Government Code.” (§ 2075.5, finding (2).) Andthe list of endangered species is embodied in a regulation. (Cal. Code Regs., tit. 14, § 670.5.) The review of an ordinary case of rulemaking is by ordinary mandamus. (Code Civ. Proc., § 1085.) “Asto the quasi-legislative acts of administrative agencies, ‘judicial review is limited to an examination ofthe proceedings before the [agency] to determine whether[the] action has been arbitrary, capricious,or entirely lacking in evidentiary support, or . . . failed to follow the procedure and give the notices required by law.” (Pitts v. Perluss (1962) 58 Cal.2d 824, 833.) The CESAsubstitutes review by Code of Civil Proceduresection 1094.5 for review whether the Commission’s action is arbitrary and capricious. Nonetheless,it is a review of quasi-legislative action, andis limited to the question whethersubstantial evidence supports the exercise of quasi-legislative authority. (§ 2076; Code Civ. Proc., § 1094.5, subd. (c).) A substantial evidence review preservesthe facts as determined by the agency and leaves for the court the question whetherthe law is consistent with the facts. The respondents havefailed to utilize this procedure for review ofthe final 1995 ic eee —. and 2004 decisions of the Commission and therefore are barred by section 2076 from nes,tatrereere using a adelistingprocedure to challengethee facts underlyingtthose decisions. When a statute specifies a procedure for review of a decisionthat i1s the procedure that must be used. The respondentsarguethatif a petition to delist a species is the only means by whichan interested person may contradict the facts underlying a final determination of the Commission, there is no check on a wrongful decision. The respondents misunderstand the administrative procedure. An interested person has ample opportunity to tenderscientific information to the department for consideration by the department and 13 the Commission during the administrative process leading to a final decision.!® What an interested person may not do is tender new information ina later proceedingthat challenges the grounds upon whichthefinal decision has been rendered. The respondents refer to section 2077, that provides periodic review ofthe status of an endangeredorthreatened species by the department, and imply that that it empowers the department to determine whethera prior decision of the Commission was in error. From that premise they reason that a regulation based on incorrect information is in violation of the CESAstatutes and may be corrected by a delisting petition. The respondents misreadsection 2077. It does provide for periodic review whethera species is endangered, but the review is limited to the present condition of the species, whether “the conditions that led to the originallisting are still present.” (§ 2077, subd. (a),italics added.)!! oe 10 As noted the respondent Big Creek Lumber Company received notice of the 1995 proceeding andparticipated in the 2004 proceeding but did not seek review ofthe final decision in either proceeding. 11 The respondents ask us to take a procedural detour regarding the standard ofjudicial review of a Commission decision denying consideration of a petition at the preliminary stage. Although notrelevant to this case, we address the issueto clear up a confusion occasioned byan earlier decision of this court and to address the nature of a CESA proceeding. - The confusion stems from our decision in Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104 (Natural Resources Defense Council). It concerned the standard of review ofa preliminary determination by the Commission whether to considera petition to list or delist a species pursuant to section 2074.2. The standard for consideration is whether “the petition provides sufficient information to indicate that the petitioned action may be warranted.” (§ 2074.2, subd. (a)(2).) We said that “the section 2074.2 [preliminary] determination is a quasi-adjudicatory one that contemplates the Commission weighing the evidence for and against [accepting the petition for review] and deciding essentially a question offact in the process.” (Natural Resources Defense Council, at pp. 1116; see also.p. 1117, fn. 10.) Wefurther saidthat judicial review ofthe decision at the preliminary stageis subject to Code of Civil Procedure section 1094.5. (Natural Resources Defense Council, at pp. 1114-1115.) The opinion is incorrect on both points. 14 Whetherthe conditions are “still present” is of course directed to the present conditions of the species and doesnotrelate to the conditions upon which a prior decision ofthe Commission wasbased. This is consistent with the regulatory groundsofdelisting, as we next show. | : | . M5. The CESA Authorizes the Delistingof a Species Only Where the Species Is No Longer Endangered The Commissionis empowered to adopted guidelines “by which an interested person maypetition the Commission to add a species to, or removea species fromeither the list of endangered orthelist of threatened species.” (§ 2071.) The Commission has done so. (Cal. Code Regs., tit. 14, § 670.1.) Among the regulations the Commission has enacted is the substantive standard by which a petition to delist a species is to be judged. A petition to delist a species pursuantto the CESAis directed to events that occur after the listing of the species. The requirement is embodiedin California Code of Regulations,title 14, section 670.1, which implements the CESAbyregulation. It Codeof Civil Procedure section 1094.5 does not apply to.a preliminary determination whether to consider a petition because it does not regult:in-a final decision, as required by subdivision (a). As wesaid in a subsequent decision: “The Commissionis notfree to choose between conflicting inferences on subordinate issues and thereafter rely upon those choices in assessing how a reasonable person would viewthe [delisting] decision.” (Centerfor Biological Diversity v. Fish & Game Com. (2008) 166 Cal.App.4th 597, 611.) This bars review by Code ofCivil Procedure section 1094.5, which provides for the judicial resolution of conflicting inferences. (Code of Civ.Proc. § 1094.5, subd. (a).) Notwithstanding, the respondentsargue that the legislative history of the CESA shows that section 2076 was intended to encompassnot only the final determination of section 2075.5 but also the preliminary determination of section 2074.2. We disagree. It is true that in an early version of the CESAtheprovisions of present sections 2075.5 and 2074.2 were subsections of the provision now contained in section 2076. In that syntactic configuration the singular reference to “this section” encompassed both subsections. However,the early version was superseded bythe present provision, in which the Legislature made separate sections out of the subsections (see now §§ 2074.2, 2075.5) yet retained the singular reference “this section” in section 2076.. That rules out the inclusion of more than one section and points to the immediatély preceding section 2075.5. bod 15 provides: “Delisting. A species may be delisted as endangered or threatened, as defined in sections 2062 and 2067. . . if the Commission determinesthatits continued existence is no longer threatened,” as measured by factorsspecified in subdivision (i)CL)(A). (Cal. Code Regs., tit. 14, § 670.1, subd. (i)(1)(B), italics added.) The factors,all of which relate to the present condition ofthe species, are: “1. Present or threatened modification or destruction ofits habitat; [9] 2. Overexploitation; [§] 3. Predation; [9] 4. Competition; [9] 5. Disease; or [{] 6. Other natural occurrencesor human-related activities.”!2 (Cal. Code Regs., tit. 14, § 670.1, subd.(i)(1)(A).) The CESA also : contains a provision for the periodic review of the status of a species by the department. (§ 2077.) But, as noted,it also is limited to the “present” condition ofthe species; whether“theconditions that led to the originallisting are still present.?"3 (§ 2077, ee subd.(a).) a The dissent complainsthat our opinion would preclude the use of new evidenceto showthat theoriginal listing was in error. That is correct. It would not, however, preclude any “person [from] submit[ing] information tohe deparimientretating-to-the O an > Seretrotne, .petitioned species during the [department SJ evaluation ofthe petition pursuant to Sectionnae attaannnntraeee ernes peg 2073.5.” (§ 2073.4, subd. (a).) At least one of the respondents, Big Creek Lumber~pOne et Company, had the opportunity to do so. As noted, Big Creek Lumber Company 12 The CESA contains a single requirementfor a “petition [to] the commission to add aspecies to, or to remove a species from... the list of endangered . . . species.” (§ 2071.)The criteria for addition or removal are the same. (§ 2072.3.) Since a petition to addaspecies “in serious danger of becoming extinct”is addressedto the present condition ofthe species so musta petition to remove a species. (§ 2062.) 13° Section 2077, subdivision (a), in relevant part provides: “The departmentshall reviewspecieslisted as an endangered species. . . every five years to determineif the conditionsthatled to the originallisting are still present.” (Italics added.) It also providesthat thereview shall be based on the information required for addingordeleting a species and that the departmentshall identify the “habitat that may be essential to the continued existence of the species... .” (Italics added.) 16 presented testimony at a hearing reviewing the 2000 petition. Moreover, Big Creek Lumber Companyreceived notice of the 1995 proceeding and could havetendered a Code ofCivil Procedure section 1094.5 petition in review of the decision. Nor would the regulation bar a delisting petition from showingthat the coho salmonare presently extinct. (Cal, Code Regs., tit. 14, § 670.1, subd. (i)(1)(B).)!4 That would, of course, require the presentation ofscientific evidence meeting the requirements of section 2072.3. . IV The Species Challenge The respondentsalso challenge the 2004 determination. They claim, based on evidence producedbytheparties in the delisting proceeding, that the coho salmon south of San Francisco maybegenetically distinct from the coho salmon north of San Francisco and are notpart of the same ESU. However,the respondents did not seek review of the 2004 determination by administrative mandamus,the speciesissue arises in the context of the 1995 and 2004 decisions of the Commission andis subject to the broad authority of the Commission to define an ESU. | Whetherwild, native, coho salmonever existed and were historically native to the area south of San Franciscois, of course, a matter of fact and expert judgment, the evidence! for which was before the Commission in the administrative rulemaking file supporting the 1995 listing. The rulemakingfile contains the written report of the department “based uponthe best scientific information available to the department.” (§ 2074.6.) The respondents do not examinethat data, and their reply brief contains not a single reference to it. Rather, they rely on information tendered pursuantto their 2004 '4 The languageofthe regulation can be read to include the extinction ofthe species in the period followingthelisting of the species as endangered. Thatis the position ofthe Commission.It states: “Species may also bedelisted if they are found extinct, but thatis not the case here.” ene 17 delisting petition to demonstrate that the informationoriginally relied upon by the Commissionis in error. | mee In California Forestry Assn. v. CaliforniaFish & Game Commission, supra, 156 Cal.App.4th 1535, an appeal from the final 2004 determination ofthe Commission to group coho salmon both south and north of San Francisco as a single ESU,wesaid that “there are twoareas of ‘genetic discontinuity/transition’ for coho salmon. These areas occur from Punta Gorda south to the San Lorenzo River [Santa Cruz County] - the Central California Coast coho evolutionary significant unit... and from Punta Gorda north across the state border to Cape Blanco, Oregon- the Southern Oregon/Northern California Coast evolutionary significant unit...” (Jd. at p. 1542.) “ ‘[T]hese discontinuities represent areas of restrictive gene flow that likely results in some level of reproductive isolation.’ ” (Jbid.) These concern the range of an ESU,about which the “Commission and the Departmenthave a wide degree ofdiscretion in defini[tion] » (Id, at p. 1551.) Me The decisionis binding on the respondents. DISPOSITION The judgmentis reversed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).) BLEASE , Acting P.J. I concur: ROBIE iJ. 18 Nicholson, J., Dissenting This case has been going on for over seven years, Twice a judge ordered the Fish and Game Commission (hereafter Commission) to reconsider its refusal to accept plaintiffs’ petition to delist a species. Twice the Commission stubbornly refused. Failing twice to persuadethetrial judgeit is correct, the Commission is now here. With the filing of their majority opinion, my colleagues compound error by the Commission with error of their own. The majority opinion mistakenly treats this case as one ofjudicial review ofa final administrative decision. It is not. No complaintorpetition wasfiled in a court challenging the Commission’s 1995 and 2004listing decisions. Rather, this case concerns.an attempt to obtain a repeal of a quasi-legislative decision by the means provided by the California Endangered Species Act (CESA) to do so: a petition to the Commission to delist.! a, : The majority opinion explainsat length howthe listing decision is a quasi- legislative decision, but thenit concludesa person cannot ask the administrative agency that enacted the legislative rule to reconsiderits decision because the original listing decisioniAs final and immunetojudicial review. This mixes apples with oranges, wrongly treating a legislative determination as adjudication. Even though plaintiffs’ petition challengesthe¢continuedvalidityoftheoriginal listing decision,it does so bylegislative process,not judicial action. Nothing in CESA says the Commission cannot reconsiderits ownlegislative decision becausedecision is final for purposes ofjudicialattack. *~hrfact,CESAsaystheopposite. éxpressly authorizes the Commission to ennmattthyee reconsider its prior listing decisions even though they maybefinal for purposes of | CESAis codified in the Fish and Game Code section 2050 et seq. Undesignated references to sectionsare to the Fish and Game Code. Judicial review. Specifically, the statute vests the Commission with authority to delist a species whenit finds uponthereceipt of sufficient scientific information that the “action is warranted.” (§ 2070.) Indeed, the statute provides three avenues by which the Commission may receive the scientific information and reconsiderits priorlisting decision. First, an interested person maypetition the Commission to delist a species at any time. (§ 2071.) Second, the Department of Fish and Game,in the absence ofa petition from an interested person, may recommend to the Commissionthat it delist a species at any time. (§ 2072.7.) Third, the Departmentis required to review listed species every five years, and it may as part of that review recommendthat the Commission delist a species where the condition that led to the originallisting is no longer present. (§ 2077.) The majority opinion is simply wrongin holding judicial finality bars legislative reconsideration. As canbe seen,the statute clearly provides for reconsideration of prior listing decisions even whenthelisting decisionis final for purposes ofjudicial review. The Commission’s prior decisions are not irrelevant to a later reconsideration, but neither are they res judicata; otherwise they would undermine the statutory structure and policy allowing for revising legislative listing decisions based on new or previously undiscovered scientific knowledge. Thus, the dispositive issue is not whether the 1995and 2004 listing decisions are final and section 2076 bars further judicial review. That statute does not apply here. Contrary to the holding of the majority opinion,the dispositive issue is whether plaintiffs’ petition to the Commission includessufficient scientific information hat the delisting / “may bewarranted;*regardless of whenthelisting decision was made. (§$2072.3, ./ f Se eeeeneenennenceneenentttn e 2074.2, subd. (a).) This was the standard which the trial court on two occasions ordered the Commission to apply and also correctly determined the Commission had failed to apply. I turn now to thatstandard. By regulation, the Commission hasstated delisting a species is “warranted” only whenthe species’ continued existenceis no longer threatened. (Cal. Code Regs., tit. 14, § 670.1, subd. (i)(1)(B).) Both the majority opinion and the Commission rely uponthis regulation as conclusive authority that prevents the Commission from delisting a species based on new scientific information that demonstrates the speciesis not truly an endangered species as CESA defines one. The regulation, however,is not the last word. Assuming for purposes of argumentthat the regulation is a quasi-legislative regulation promulgated pursuantto a delegation of lawmaking power, a court nonetheless does notdefer to it blindly. “[E]ven quasi-legislative rules are reviewed independently for consistency with controlling law. A court does not, in other words, defer to an agency’s view when deciding whether a regulation lies within the scope ofthe authority delegated by the Legislature. The court, not the agency,has‘final responsibility for the interpretation of the law’ under which the regulation was issued. [Citations.]” (Yamaha Corp. ofAmericav. State Bd. ofEqualization (1998) 19 Cal.4th 1, 11, fn. 4.) “* “Whateverthe force of administrative construction . . . final responsibilityfor the interpretation ofthe law rests with the courts.” [Citation.] Administrative regulations that alter or amendthe statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations. [Citations.]’ ” (Id. at p. 16 (conc. opn. of Mosk,J., original italics, quoting Morris v. Williams (1967) 67 Cal.2d 733, 748.) The Commission’s‘Ssregulation limitingane to when a species is no longer < ee I it is warranted. It is ultimately the court’s duty to determine the meaning ofthe “as warranted”standard, and the Commission’s regulationarbitrarily restricts the full scope ofthe statutory phrase. Delisting may be warranted on additional grounds. Authority under the federal.Endangered Species Act (FESA) makesthis clear, and California courts may relyon federal authority to help interpret similar provisions of CESA. (Natural Resources Defense Council v. Fish and Game Com. (1994) 28 Cal.App.4th 1104, 1117- 1118.) | Under regulations implementing the FESA, delisting is warranted when the species (1) has becomeextinct; (2) the species has‘recovered, or (3) of relevancehere, whenthe species “is neither endangered nor threatened” because “[oJriginal data for Classification [was] in error. Subsequent investigations may show thatthe best scientific or commercial data available whenthe species was listed, or the interpretation of such data, werein error.” (50 C.F.R. § 424.11, subd. (d)(3).) Thefederal interpretation of the “as warranted”standard as including delisting on account ofprior erroneous data exposes the arbitrary nature of the Commission’s regulation. The‘Tegulation i mpairs the Commission’s statutory authority under CESAto delist. If the data supportinga listing is later found tobe erroneousandthe species truly does not qualify as an endangered species, the Commissionis not authorized, or warranted, to continue regulating the listed species andits habitat. Otherwise, in the worst case scenario, the Commission would continue, to imposerestrictions on otherwise lawfulactivities and land uses whenthe species does not in fact justify or require them. The regulation’s exclusion ofthis ground for delisting, in light ofits potential consequence of unwarranted regulation of lawful activities, is arbitrary indeed. Consideration of delisting by the Commission under CESAis “warranted” on this basis. Plaintiffs’ arguments and evidence in support oftheirpetition fall into this category. The petition provides evidence indicating delisting may be warranted because new scientific information demonstrates the original listing maybein error. The issue before us, then, is whether the Commission abusedits discretion in rejecting the petition by determiningthepetition did not demonstrate delisting may be “warranted,” giving that statutory term its full meaning. (§ 2074.2, subd. (a)(1).) Wereview the Commission’s decision under a substantial evidencetest. Specifically, we are to determine whetherthe evidenceiin the record, including the Commission’s evidence, clearly would lead a reasonable person to concludethere is a substantial possibility delisting could occur. If we concludeit does, then the Commission abusedits discretion in rejectingthe petition. (Centerfor Biological Diversity v. Fish and Game Com. (2008) 166 Cal.App.4th 597, 610-612.)I conclude the evidencein the record meets this standard, and the Commissionerred. The Legislature defined an endangered spécies offish as a species or subspecies of wild fish native to California which is in danger of becoming extinct throughout all or a significantportion ofits range. (§§ 45, 2062.) Based upon the evidencein the record derived from investigations conductedafter the Commission listed coho salmon as endangered in 1995, a reasonable person clearly could concludea substantial possibility of delisting exists in this instance because coho salmon south of San Francisco may not qualify as endangered under CESA’s definition. Contrary to what wasbelieved at the time of listing, substantial evidence now indicates these coho salmon may constitute a separate species or subspeciesoffish that may notbe wild or native to California. If that is So, delisting would be warranted. The majority opinion highlights the importanceof the judgment and expertise of the Commissionandits staff. Yet, the opinion forecloses the public from receiving the benefit of that judgment and expertise by means of a technicality, and a faulty ee technicality at that. Res judicata does not bar new legislative action. Plaintifts seek nothing‘more from the Commission than a full and fair consideration of the new scientific aee gngemieenammeter evidence they presentedin their petition and whetherthe legislative listing no longer satisfies its statutory prerequisites. CESA is written to allow that consideration to take place at any time. Thetrial court twice orderedit to take place. I conclude thetrial court was cortect, and I would affirm its judgment and order the Commissionfinally to accept plaintiffs’ petition for full consideration. (§ 2074.2, subd. (a)(2).) NICHOLSON J. CERTIFICATE OF COMPLIANCE Pursuantto California Rule of Court 8.204(c)(1), I hereby certify that the foregoing PETITION FOR REVIEWisproportionately spaced, has a typeface of 13 points or more, and contains 6,806 words. DATED: January 22, 2013. jpfnes L. Buchal, SBN/258128 urphy & Buchal LLP 3425 SEYamhill Street, Suite 100 Portland,OR: 97214 Tel: 503-227-1011 Fax: 503-573-1939 Atty. for Plaintiffs and Respondents -31- DECLARATION OF SERVICE BY MAIL I, Carole Caldwell, declare as follows: I am a resident of the State of Oregon, residing and employed in Portland, Oregon. I am over the age of 18 years and am nota party to the above-entitled action. My business address is 3425 SE Yamhill Street, Suite 100, Portland, Oregon 97214. On January 22, 2013, true copies of PETITION FOR REVIEW were placed in envelopes addressedto: Cecilia L. Dennis Deputy Attorney General California Department of Justice Office of the Attorney General on 455 Golden Gate Avenue, Suite 11000 ~ San Francisco, CA 94102-7004 Deborah A.Sivas Environmental Law Clinic 559 Nathan Abbot Way Stanford, CA 94305-8610 Third Appellate District 914 Capitol Mall Sacramento, CA 95814 Sacramento County Superior Court 720 Ninth Street, Room 611 Sacramento, CA 95814 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox regularly maintained by the United States Postal Service in Portland, Oregon. -32- I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed this 22nd day of January, Carole Caldwell 2929 “4 2013, at Portland, Oregon. - 33 -