Natural Resources Defense Council v. Fish & Game Com.

• Decision Date: 30 September 1994
• Docket Number: No. C014827,C014827
• Citation: 33 Cal.Rptr.2d 904,28 Cal.App.4th 1104
• Court: California Court of Appeals Court of Appeals
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, Plaintiff and Respondent, v. CALIFORNIA FISH AND GAME COMMISSION, Defendant and Appellant, Building Industry Assoc. Etc., et al., Intervenors and Appellants.

Page 904

33 Cal.Rptr.2d 904

28 Cal.App.4th 1104

NATURAL RESOURCES DEFENSE COUNCIL, Plaintiff and Respondent, v. CALIFORNIA FISH AND GAME COMMISSION, Defendant and Appellant Building Industry Assoc. Etc., et al., Intervenors and Appellants.

No. C014827.

Court of Appeal, Third District, California.

Sept. 30, 1994.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter E. Wunderlich, Sr. Asst. Atty. Gen., Edna Walz, Supervising Deputy Atty. Gen., and William D. Cunningham, Deputy Atty. Gen., for defendant and appellant.

Jerome B. Falk, Jr., William M. Boyd, Richard C. Jacobs, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, for intervenor and appellant Building Industry Ass'n of Southern California.

Nossaman, Guthner, Knox & Elliott, Robert J. Sullivan, Robert D. Thornton, John J. Flynn, III and Paul R. Johnson, Sacramento, for intervenors and appellants.

Joel R. Reynolds, Michael D. Fitts, Hufstetler, Kaus & Ettinger, Burton J. Gindler, Laura Fashing, Los Angeles, Remy & Thomas, J. William Yeates and Whitman F. Manley, Sacramento, for petitioner and respondent.

DAVIS, Acting Presiding Justice.

In this appeal, we interpret a procedural provision in the California Endangered Species Act (CESA). (Fish & G.Code, § 2050 et seq.; all further references to undesignated code sections will be to the Fish and Game Code unless otherwise specified.) That provision guides the Fish and Game Commission (Commission) in determining whether to list a species as a candidate for "endangered" or "threatened" classification, and requires the Commission to find "that the petition [requesting endangered or threatened listing] provides sufficient information to indicate that the petitioned action may be warranted...." (§ 2074.2.) ¹ The specific issue here concerns the evidentiary standard embodied in the section 2074.2 phrase, "sufficient information to indicate that the petitioned action may be warranted." We interpret the phrase to mean that amount of information--when considered in light of the Department of Fish and Game's written report and the comments received (see § 2074.2)--that would lead a reasonable person to conclude there is a "substantial possibility" the requested listing "could" occur (as the term "substantial possibility" is comparatively defined herein). This interpretation differs from the one adopted by the trial court. Consequently, we affirm in part and reverse in part.

BACKGROUND

In early 1991, the Natural Resources Defense Council (NRDC) and the Manomet Bird Observatory petitioned the Commission seeking listing of the California Gnatcatcher, a songbird (polioptila californica californica), as an endangered species under CESA. (§ 2071.) As required by statute, the Commission referred the petition to the Department of Fish and Game (Department). (§ 2073.) After initially evaluating the petition, the Department concluded that the document contained sufficient information to indicate that the petitioned action may be warranted; accordingly, the Department recommended that the Commission accept the petition for consideration and list the California Gnatcatcher as a candidate for "endangered" classification. (§ 2073.5.)

The Commission considered the petition at three public meetings in the summer of 1991. It ultimately concluded, in a 3-1 decision, that the petition did not "provide sufficient information to indicate that the petitioned action may be warranted." The Commission then formally adopted findings regarding this conclusion.

In late 1991, NRDC filed a Petition for Writ of (Administrative) Mandate and Complaint for Declaratory Relief challenging the Commission's action. (See § 2076.) The Building Industry Association of Southern California (BIA), as well as the Foothill/Eastern Transportation Corridor Agency and the San Joaquin Transportation Corridor Agency, timely intervened in the action.

At trial, NRDC argued that the Commission should decide in favor of candidacy when the evidence in the petition provides "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." NRDC, therefore, argued for a low threshold test for candidacy determination, one patterned after the fair argument standard in the California Environmental Quality Act (CEQA) for determining whether an environmental impact report on a project should be prepared.

The Commission, joined by the intervenors, countered NRDC's argument by noting the consequential distinctions between deciding whether an environmental impact report should be prepared and whether to list a candidate species under CESA. Focusing on the Commission's quasi-adjudicative responsibilities regarding candidacy determination and alleging that such a determination, operates effectively as a preliminary injunction protecting the habitat of the candidate species, the Commission and the intervenors argued at trial that the Commission should decide in favor of candidacy, in the Commission's words, "only where ..., based on the evidentiary record, it is reasonably probable that [the Commission's] ultimate determination would be to find the candidate species endangered [or threatened, as the case may be]." (Emphasis in original.)

The trial court expressly rejected the fair argument standard advocated by NRDC, implicitly rejected the reasonable probability standard tendered by the Commission and the intervenors, and, as that court said, "described [an evidentiary standard] more reflective of the language and intent of Fish and Game Code 2074.2." The standard adopted by the trial court specified that "the commission could not permissibly reject a petition [under section 2074.2] which presented substantial evidence indicating a need for listing, i.e., such relevant and credible evidence which, considered with other evidence before the commission, a reasonable mind might accept as adequate to support a conclusion that listing was necessary."

In its judgment granting a peremptory writ of mandate, the trial court remanded the proceedings to the Commission. The court directed the Commission to prepare new findings in accord with the evidentiary standard the court had formulated and the requirements regarding administrative-finding specificity set forth in Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12. The Commission and the intervenors then appealed, challenging principally the evidentiary standard formulated by the trial court. ²

DISCUSSION

In this appeal we are asked to determine the evidentiary standard embodied in the section 2074.2 phrase, "sufficient information to indicate that the petitioned action may be warranted." ³

Certain rules of statutory construction guide our interpretation. The basic objective of statutory interpretation is to ascertain and effectuate legislative intent. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1562, 11 Cal.Rptr.2d 222.) "In ascertaining legislative intent, we read the words of the statute according to their 'usual, ordinary, and common sense meaning' consistent with the statute's apparent purpose...." (Al-Sal Oil Co. v. State Bd. of Equalization (1991) 232 Cal.App.3d 969, 976, 283 Cal.Rptr. 843.) " 'When the [statutory] language is clear and unambiguous, there is no need for construction. When the language is susceptible of more than one reasonable interpretation, [as it is here], we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.' " (Department of Fish & Game, supra, 8 Cal.App.4th at p. 1562, 11 Cal.Rptr.2d 222, quoting People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008, 239 Cal.Rptr. 656, 741 P.2d 154, citation references omitted.)

1. An Overview of CESA Regarding Candidate Species

California was one of the first states in the Union--if not the first--to enact a statutory scheme to protect endangered and rare animals, doing so in 1970. (Stats.1970, ch. 1510, p. 2998, § 3; see former § 2050 et seq.) Fourteen years later, this scheme was repealed and a new one--known as the "California Endangered Species Act" (CESA; see § 2050)--was put in its place.

In CESA, the Legislature found and declared that certain species of fish, wildlife and plants have been rendered extinct as a consequence of man's activities; that other species of fish, wildlife and plants are in danger of or threatened with extinction because their habitats are threatened with destruction, adverse modification or severe curtailment, or because of overexploitation, disease, predation, or other factors; and that these species are of ecological, educational, historical, recreational, esthetic, economic, and scientific value to the people of California, and the conservation, protection and enhancement of them and their habitat is of statewide concern. (§ 2051.)

The Legislature, in CESA, further found and declared it to be state policy to conserve, protect, restore and enhance any endangered species or any threatened species and its habitat (§ 2052); that state agencies should not approve projects ⁴ as proposed which would jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat essential to the continued existence of those species, if there are reasonable and prudent alternatives available consistent with conserving the species or its habitat that would prevent jeopardy (§ 2053); that reasonable and prudent alternatives must be developed by the Department, together with the project proponent and the state lead agency (on the project), consistent with conserving the species, while at the...