Natural Resources Defense Council v. Fish & Game Commission

In this appeal, we interpret a procedural provision in the California Endangered Species Act (CESA). (Fish & G. Code, § 2050 et seq.; all further references to undesignated code sections will be to the Fish and Game Code unless otherwise specified.) That provision guides the Fish and Game Commission (Commission) in determining whether to list a species as a candidate for “endangered” or “threatened” classification, and requires the Commission to find “that the petition [requesting endangered or threatened listing] provides sufficient information to indicate that the petitioned action may be warranted . . . .” (§ 2074.2.) The specific issue here concerns the evidentiary standard embodied in the section 2074.2 phrase, “sufficient information to indicate that the petitioned action may be warranted.” We interpret the phrase to mean that amount of information—when considered in light of the Department of Fish and Game’s written report and the comments received (see § 2074.2)—that would lead a reasonable person to conclude there is a “substantial possibility” the requested listing “could” occur (as the term “substantial possibility” is comparatively defined herein). This…