California Forestry Ass'n v. California Fish & Game Commission

California has been at the forefront of enacting legislation to protect endangered and rare animals—first doing so in 1970. (Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1111 [ 33 Cal.Rptr.2d 904 ].) Fourteen years later, that legislation was repealed and replaced with the California Endangered Species Act (CESA) (Fish & G. Code, § 2050 et seq.). (Natural Resources Defense Council, at p. 1111.)

In enacting the CESA, the Legislature made clear this state’s policy to protect any endangered or threatened “species or subspecies” if at risk of extinction “throughout all, or a significant portion, of its range” (§§ 2052, 2062, 2067), but left undefined certain terms essential to implementing that policy. This appeal addresses the meaning of some of these terms in the context of protecting two “evolutionarily significant units” of coho salmon in California that defendants in this case—the California Fish and Game Commission (Commission) and the Department of Fish and Game (Department)—found to be endangered and threatened.

Among the issues we will address is whether the term “species or subspecies” includes “evolutionarily significant…