California Fish and Game Commission to Consider Candidacy Status of California Tiger Salamander under CESA at February 5 Meeting

By Robert J. Uram and Keith Garner

On February 5, 2009, the California Fish and Game Commission will consider whether to accept a petition originally filed by the Center for Biological Diversity on January 30, 2004, to add the California tiger salamander (“CTS”) to the state’s list of endangered species under the California Endangered Species Act (“CESA”).  The action of the Commission on the petition is not in doubt—the Commission will accept the petition and the CTS will become a “candidate” species.  The CTS is listed as a federal endangered species in three distinct population segments—Sonoma, Santa Barbara, and Central California.  The state’s candidacy status will cover all CTS populations.

The forthcoming action by the Commission is the outcome of judicial review of the Commission's decision not to accept the petition on December 5, 2004.  In Center for Biological Diversity v. Fish and Game Commission, Third District Court of Appeal determined that the Commission wrongfully denied the petition and ordered the Commission to accept the petition.  The Court’s order does not allow the Commission to reconsider the issue.  The California Supreme Court denied the request of the California Fish and Game Commission (“Commission”) to review the case on December 10, 2008.  The Supreme Court’s denial renders the Third Appellate District’s decision final.

The Commission must now accept the petition, which it is scheduled to do at its meeting on February 5, 2009.  The Commission’s acceptance of the petition will designate the CTS as a candidate for listing and start a 12-month status review by the Department of Fish and Game.  At the end of the candidacy period, the Commission must decide whether listing is warranted.  The Commission is not obligated to list a species at the end of the candidacy period.

Under CESA, candidate species receive the same protection as threatened or endangered species, but the Commission may authorize take, subject to appropriate terms and conditions, of candidate species.  Thus, the key issue for the Commission to decide is whether and under what conditions to allow take of the CTS during the candidacy period.  Unless the Commission authorizes take of the CTS during candidacy, activities that result in take of CTS during the 12-month candidacy period will require incidental take permits from the Department of Fish and Game, even if a project has federal take authorization for impacts to CTS.  The absence of a take authorization could affect ongoing development projects as well as CTS scientific collection and surveys.

The February 5, 2009 meeting will be held in Sacramento.

Authored by:

Robert J. Uram

(415) 774-3285

ruram@sheppardmullin.com

and

S. Keith Garner

(415) 774-2991

kgarner@sheppardmullin.com

Robert J. Uram is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office. He is a founding member of the firm's Organic Food and Fiber Law group. Keith Garner, AICP, is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office.

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