Northern Spotted Owl Told to Wait

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Wednesday, April 17th, 2013

NSO

On Wednesday, April 17, 2013, EPIC argued on behalf of the Northern Spotted Owl before the California Fish and Game Commission.  Despite the fact that the species has been threatened with extinction since the 1980’s, and listed as threatened under the federal Endangered Species Act since 1990, the Commission has not protected the species under the California Endangered Species Act (CESA).  This significant oversight, and the failure of existing federal and state regulations to promote recovery of the owl, spurred EPIC to file a petition to list the Northern Spotted Owl under CESA in September 2012. 

Unfortunately, the Commission delayed action for 90 days on whether to conduct a status review under CESA.  The statute clearly obligates the Commission to make decisions in a specific timeframe, and while this delay may be allowed under the law, it makes very little sense.  The primary reason given by the Commission for this delay was to further deliberate on the information provided at the last minute by the timber industry.  Curiously enough, the purpose of the status review under CESA is for the Department of Fish and Wildlife (and the Commission) to analyze the available information received through an open public process.  Clearly, the Commission should have voted to conduct a status review based on the overwhelming evidence before it, and for the very reason given for the delay. 

It is well past time for the State of California to recognize its duties under CESA, and to act swiftly to protect the Northern Spotted Owl.  Without CESA protections, and a more holistic view of species recovery and landscape-scale conservation that includes private and state owned lands, the spotted owl is likely to go extinct in the foreseeable future.  While the current delay is unfounded and frustrating, EPIC will continue to push for accountability and justice for the Northern Spotted Owl. Stay tuned for more updates about this important EPIC Endangered Species and Biodiversity Defense Program initiative.

The Listing Process under the California Endangered Species Act—A Primer for Endangered Species Advocacy

The State of California enacted the California Endangered Species Act (CESA) in order to address and prevent the extinction of native biological diversity.  The purpose of CESA is to “conserve, protect, restore, and enhance any endangered species or any threatened species and its habitat….”  Fish & Game Code § 2052.  The first step under CESA is to identify and list species as “threatened” and “endangered.”  A “threatened species” refers to a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant that, although not presently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of special protection and management efforts. Fish & Game Code § 2067.  An “endangered species” refers to a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease. Fish & Game Code § 2062.

The California Fish and Game Commission (Commission) is the administrative body that makes all final decisions regarding the listing of species under CESA.  The California Department of Fish and Wildlife (Department) is the expert agency that makes recommendations to the Commission regarding species listings.  The listing process may be set in motion in two ways: “any person” may petition the Commission to list a species, or the Department may on its own initiative put forward a species for consideration.  “Petitions shall include information regarding the population trend, range, distribution, abundance, and life history of a species, the factors affecting the ability of the population to survive and reproduce, the degree and immediacy of the threat, the impact of existing management efforts, suggestions for future management, and the availability and sources of information.  The petition shall also include information regarding the kind of habitat necessary for species survival, a detailed distribution map, and any other factors that the petitioner deems relevant.” Fish & Game Code § 2072.3.  In the case of a citizen proposal, CESA sets forth a process for listing that contains several discrete steps.

Upon receipt of a petition to list a species, a 90-day review period ensues during which the Commission refers the petition to the Department, as the relevant expert agency, to prepare a detailed report. The Department’s report must determine whether the petition, along with other relevant information possessed or received by the Department, contains sufficient information indicating that listing may be warranted.  Fish & Game Code § 2073.5.

During this period interested persons are notified of the petition and public comments are accepted by the Commission. Fish & Game Code § 2073.3.  After receipt of the Department’s report, the Commission considers the petition at a public hearing. Fish & Game Code § 2074.  At this time the Commission is charged with its first substantive decision: determining whether the Petition, together with the Department’s written report, and comments and testimony received, present sufficient information to indicate that listing of the species “may be warranted.” Fish & Game Code § 2074.2.  This standard has been interpreted as the amount of information sufficient to “lead a reasonable person to conclude there is a substantial possibility the requested listing could occur.” Natural Resources Defense Council v. California Fish and Game Comm. 28 Cal.App.4th at 1125, 1129.

If the petition, together with the Department’s report and comments received, indicates that listing “may be warranted,” then the Commission must accept the petition and designate the species as a “candidate species.” Fish & Game Code § 2074.2.  “Candidate species” means a “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant that the commission has formally noticed as being under review by the department for addition to either the list of endangered species or the list of threatened species, or a species for which the commission has published a notice of proposed regulation to add the species to either list.”  Fish & Game Code § 2068.

Once the petition is accepted by the Commission, then a more exacting level of review commences. The Department has twelve months from the date of the petition’s acceptance to complete a full status review of the species and recommend whether such listing “is warranted.” Following receipt of the Departments status review, the Commission holds an additional public hearing and determines whether listing of the species “is warranted.” If the Commission finds that the species is faced with extinction throughout all or a significant portion of its range, it must list the species as endangered. Fish & Game Code § 2062. If the Commission finds that the species is likely to become an endangered species in the foreseeable future, it must list the species as threatened. Fish & Game Code § 2067.