By Kerry Shapiro and Daniel Quinley
The last month has seen a flurry of activity related to the California and Federal Endangered Species Acts, including:
- The California Supreme Court’s denial of review in the Almond Alliance of California v. California Fish and Game Commission litigation
- Governor Gavin Newsom’s appointment of a fifth member of the California Fish and Game Commission
- That Commission’s October 9, 2022 hearing, where consideration of the petition to list the western Joshua tree (WJT) as a threatened species was continued for a second time
- The United States Fish and Wildlife Service’s proposed listing of the Bay-Delta longfin smelt on October 7
First, on September 21, 2022, the California Supreme Court denied a petition to review a ruling by the 3rd District Court of Appeal in Almond Alliance of California v. Fish & Game Com., (2022) 79 Cal.App.5th 337. This denial lets stand the decision by the Court of Appeal, allowing the listing of four bumble bee species under the California Endangered Species Act (CESA). In that decision, issued in May of this year, the Court of Appeal reversed the decision of the trial court, reasoning that the Fish and Game Commission could list insects because the California legislature – despite evidence accepted by the trial court that the legislative committees that wrote CESA’s language explicitly believe insects were ineligible for listing – found that “the term of art employed by the Legislature in the definition of fish is not … limited” to aquatic species.
In denying the review, three Supreme Court justices offered a statement of explanation, authored by Chief Justice Cantil-Skaue,
“Our denial of a petition for review does not communicate any particular view regarding the merits of the issues presented in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement (nor it is a rejection) of the statutory analysis undertaken by the Court of Appeal, which determined that bumble bees, a nonaquatic invertebrate, are susceptible to being listed as endangered under the California Endangered Species Act …”
It is noteworthy that the Supreme Court went out of its way to emphasize it was neither endorsing nor rejecting the Court of Appeal’s interpretation, and concluded the statement of expiation by putting the California legislature on notice that “some clarification” of CESA should be necessary. Indeed, such clarification may be necessary given that at least one more insect (the Quino Checkerspot Butterfly) listing is pending before the Commission, with more likely to follow.
Second, on October 6, 2022, Governor Newsom appointed Anthony C. Williams as the fifth member of the California Fish and Game Commission (“Commission”), filling a vacancy that has been open since March 2022. Commissioner Williams previously served on the Commission from 2015 until 2019.
Third, the Commission held its quarterly meeting on October 12 and 13 at the North Tahoe Events Center in Kings Beach, California. At that meeting, the Commission voted unanimously to continue the item of whether to list the WJT as a threatened species until its February 8-9, 2023 meeting, which will be held in Sacramento. In addition to the continuance, the Commission also voted to continue keeping the public record open for the limited purpose of “input from tribal governments and consultation from tribal governments.”
The Commission’s actions mirror its decision in June 2022 (where it also kept the public record open for tribal consultation) and mean that the WJT remains protected under CESA as a candidate species indefinitely. In postponing a final decision on the species, newly-appointed Commissioner Williams noted that a legislative solution to the listing may still be possible if all interested parties were able to work together.
Finally, the U.S. Court of Appeals for the Ninth Circuit ruled on September 21, 2022 that Judge Jon Tiggar, of the U.S. District Court for Northern California, improperly vacated federal Endangered Species Act (ESA) regulations.
The regulations, originally promulgated in 2019, prevent the U.S. Fish and Wildlife Service from treating species listed as “threatened” under the federal ESA as “endangered,” and clarified when federal agencies are required to consult over the impact of federal actions on listed species and habitat. In making its ruling, the Ninth Circuit found that the District Court erred in vacating the ESA regulations without also ruling on the legality of the regulations.
Despite the Ninth Circuit’s ruling, both the U.S. Fish and Wildlife Service and National Marine Fisheries Service are expected to submit revised ESA regulations in early 2023, with yet another final rule in May 2024, essentially vacating the 2019 regulations.
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, construction and building materials industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry at KShapiro@jmbm.com.
Daniel Quinley is an environmental and land use lawyer at Jeffer Mangels Butler & MItchell LLP. He represents clients in complex regulatory, permitting, policy, and litigation arenas. Contact Dan at DQuinley@jmbm.com.
JMBM’s Natural Resources & Mining Law Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining law practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.