Mountain Lion Foundation v. Fish & Game Commission

The California Endangered Species Act (CESA) provides protection and management resources for certain native species of fish, wildlife, and plants in imminent danger of or threatened with extinction. Under CESA, the Fish and Game Commission (Commission) is assigned the task of establishing a list of endangered species and a list of threatened species. The Commission is required to add or remove species from either list when warranted, and to develop criteria for determining if a species is endangered or threatened.

The litigation in this case followed the Commission’s decision to remove the Mojave ground squirrel from the threatened species list. The delisting *111 decision was the first time since CESA’s enactment that protection had been withdrawn from any species.

The Court of Appeal concluded the Commission abused its discretion in removing the ground squirrel from the list of threatened species because the Commission’s failure to prepare and certify an environmental impact report (EIR) when evaluating the delisting petition violated the California Environmental Quality Act (CEQA). We conclude: (1) CESA can be harmonized with CEQA; (2) the Commission is entitled to…

I respectfully dissent. The California Endangered Species Act (CESA; Fish & G. Code, § 2050 et seq.) states the exact procedures and criteria by which the California Fish and Game Commission (Commission) is to decide whether individual plant or animal varieties shall appear, or continue to appear, on California’s “threatened” and “endangered” species lists. A species must be listed if “sufficient scientific information” persuades the Commission that the species’ continued existence is endangered or threatened. Once listed, a species must be removed from the list (delisted), if the Commission determines, from similar “scientific information,” that the species faces no imminent or likely threat or danger. The decision requires a detailed study and report by an expert agency, public notice, hearing, and comment, and full and formal findings by the Commission. But the process, while careful and public, is narrowly focused; the determination to list or delist must be based solely upon the ecological health of the species under consideration.

After protracted proceedings under CESA, the Commission found that the Mojave ground squirrel does not meet CESA’s standards of threat or…