HomeMy WebLinkAboutFish & Game Commission 4/27/10 COMMISSIONERS ARNOLD SCHWARZENEGGER JOHN CARLSON,JR.
Jim Kellogg,president
a EXECUTIVE DIRECTOR
Discovery Ray
Richard Rogers,Vice President /416 Ninth Street
Carpinteria !; Box 944209
Michael Sutton,Member Sacramento,CA 94244-2090
Monterey (916)653-4899
Daniel W.Richards,Member (916)653-5040 Fax
Upland Governor fgc@fgc.ca.gov
Don Benninghoven,Member
Santa Barbara -
• STATE OF CALIFORNIA
Fish and Game Commission � p �°�svrsos
APR 3-6 2oto
April 27, 2010 OROVILLE
CALIFORNIA
TO ALL AFFECTED AND INTERESTED PARTIES:
This is to provide you with the revised Commission findings rejecting the petition to list
the American Pika as a threatened species which will be published in the California
Regulatory Notice Register on April 30, 2010.
Sincerely,
. Sheri Tiemann
Staff Services Analyst
Attachment
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CALIFORNIA FISH AND GAME COMMISSION
NOTICE OF FINDINGS
NOTICE IS HEREBY GIVEN that, pursuant to the provisions of Fish and Game Code
Section 2074.2,the California Fish and Game Commission, at its June 24, 2009, meeting in
Woodland, California, set aside its June 27, 2008, written findings in support of its decision to
reject the petition filed by the Center for Biological Diversity to list the American pika (Ochotona
princeps) as a threatened spades. The Commission reconsidered the petition and rejected it
based on a finding that the petition did not provide sufficient information to indicate that the
petitioned action may be warranted. At this meeting,the Commission also announced its
intention to ratify its findings.
NOTICE IS ALSO GIVEN that, at its October 1, 2009, meeting in Woodland, California,the
Commission adopted findings outlining the reasons for its rejection of the petition.
NOTICE IS ALSO GIVEN that, at its April 7, 2010, meeting in Monterey, California, the
Commission adopted the following findings outlining the reasons for its rejection of the petition
and which supersede the findings adopted at the October 1, 2009 meeting.
.
BACKGROUND
August 22,2007. The Commission office received a petition from the Center for Biological
Diversity(CBD)to list the American pika as threatened under the California Endangered Species
Act(CESA).
August 30, 2007. The Commission office referred the petition to the Department of Fish and
Game(Department)for review and analysis pursuant to Fish and Game Code Section 2073.5.
September 10, 2007. The Commission submitted a notice of receipt of the petition, for
publication in the California Regulatory Notice Register, as well as for mailing to interested and
affected parties.
September 13, 2007.1 The Department submitted a written request for a 30-day extension to
evaluate the petition.
October 12, 2007. The Commission approved the Department's request for a 30-day extension
to evaluate the petition.
December 21,2007. The Department submitted its written evaluation of the petition.
February 7, 2008. The Commission announced receipt of the Departments evaluation of the
petition to list the American pika as threatened and indicated its intent to consider the petition,
the Departments evaluation,and public comments at the March 6-7;2008 meeting.
March 4. 2008. The Commission office received a 25-page letter from CBD in rebuttal to the
Department's evaluation. Six additional exhibits were appended to this letter.
March 7, 2008. The Department discussed its evaluation of the petition at the Commission
meeting. The Commission took comments on the petition and the Departments evaluation.
Because of the additional information submitted by CBD,the Commission continued its
consideration of the petition to the April 10-11 meeting in Bodega Bay.
April 8.- 008. The Commission office received an email message from Mr. Brian Nowicki of
CBD, with four attachments pertaining to the American pika.
A ri110 2008. The Commission considered the petition and took additional comments related
to it and the Department's evaluation. At this meeting the Commission rejected the petition,
finding that it did not contain sufficient information to indicate the petitioned action may be
warranted. Staff was directed to prepare a draft statement of Commission findings pursuant to
Fish and Game Code Section 2074.2.
August 19 2008. CBD filed a Petition for Writ of Mandate in San Francisco Superior Court
challenging the Commission's decision to reject the petition.
May 11,LOOS. San Francisco Superior Court Judge Peter Busch issued a writ of mandate
directing the Commission to set aside its June 27, 2008 findings rejecting_the petition to list the
American pika and reconsider its action in light of the court's judgment.
May 19 2009. The Commission office received a 17-page letter from CBD requesting that the
Commission take into account the information in the letter when reconsidering the petition.
June 24 2009. The Commission considered the petition and took additional comments related
to it. At this meeting,the Commission set aside its June 27, 2008 written findings in support of
its decision to reject the petition. At this meeting,the Commission also reconsidered and
rejected the petition without prejudice, finding that it did not contain sufficient information to
indicate the petitioned action may be warranted. Staff was directed to prepare a draft statement
of Commission findings pursuant to Fish and Game Code Section 2074.2. At this meeting, the
Commission also decided and announced that any additional evidence submitted by CBD,
including its May 19, 2009 letter, should be submitted to the Commission as part of any new
petition CBD chooses to submit.
October 1 2009. The Commission adopted findings outlining the reasons for its rejection of the
petition.
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STATUTORY REQUIREMENTS
A species is endangered under CESA(Fish and Game Code§2050 et seq.) if it'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, over exploitation, predation,
competition, or disease." (Fish&G. Code, §2062.) A species is threatened under CESA if it is
"not presently threatened with extinction [but]is likely to become an endangered species in the
foreseeable future in the absence of the special protection and management efforts required by
[CESA]...."(Fish&G. Code, §2067.) Responsibility for deciding whether a species should be
listed as endangered or threatened rests with the Commission. (Fish & G. Code, §2070.)
Califomia law does not define what constitutes a"serious danger"to a species, nor does it
describe what constitutes a"significant portion"of a species' range. The Commission makes
the determination as to whether a species currently faces a serious danger of extinction
throughout a significant portion of its range(or, for a listing as threatened,whether such a future
threat is likely)on a case-by-case basis after evaluating and weighing all the biological and
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management information before it.
Non-emergency listings involve a two-step process. First,the Commission"accepts"a petition
to list the species,which immediately triggers regulatory protections by establishing the species
as a candidate for listing and triggers up to a twelve-month study by the Department of the
species'status.(Fish&G. Code, §§ 2074.2, 2074.6.) Second,the Commission considers the
Department's status report and information provided by other parties and makes a final decision
to formally list the species as endangered or threatened. (Fish &G. Code, §2075.5.To be
accepted by the Commission, a petition to list a species under CESA must include sufficient
scientific information that the listing may be warranted. (Fish&G. Code, §2072.3; Cal. Code
Regs.,tit. 14, §670.1, subds. (d) and (e).) The petition must include information regarding the
species' population trend, range,distribution, abundance and life history;factors affecting the
species'ability to survive and reproduce;the degree and immediacy of the threat to the species;
the impact of existing management efforts; suggestions for future management of the species;
the availability and sources of information about the species; information about the kind of
habitat necessary for survival of the species; and a detailed distribution map. (Fish &G. Code, §
2072.3; Cal.Code Regs., tit. 14, §670.1, subd. (d)(1).)
Within ten days of receipt by the Commission, a petition is forwarded to the Department for
analysis. (Fish&G. Code, §2073.) Within 90 days of receipt, the Department submits to the
Commission an evaluation report of the petition and other available information (Fish &G. Code,
§2073.5), including a recommendation on whether the petitioned action may be warranted. The
Department may request and be granted a time extension of up to 30 additional days to submit
the evaluation report. After public release of the Department's evaluation report(Fish &G.
Code, §2074),the Commission will schedule the petition for consideration. In deciding whether
it has sufficient information to indicate the listing may be warranted,the Commission is required
to consider the petition itself,the Department's written evaluation report, and other comments
received about the petitioned action. (Fish &G. Code, §2074.2.)
The standard of proof to be used by the Commission in deciding whether listing may be
warranted (i.e.,whether to accept or reject a petition)was described in Natural Resoumes
Defense Council v. Fish and Game Commission (1994)28 Cal.App.0 1104(NRDC case). In
the NRDC case, the court determined that"the Section 2074.2 phrase'petition provides
sufficient information to indicate that the petitioned action may be warranted' means that amount
of information,when considered in light of the Departmenfs written report and the comments
received,that would lead a reasonable person to conclude there is a substantial possibility the
requested listing could occur...." (ld, at p. 1125.) This"substantial possibility"standard is more
demanding than the"reasonable possibility'or"Fair argument"standard found in the California
Environmental Quality Act, but is lower than the legal standard for a preliminary injunction,which .
would require the Commission to determine that a listing is"more likely than not"to occur. (ibid.)
The NRDC court noted that this"substantial possibility" standard involves an exercise of the
Commission's discretion and a weighing of evidence for and against listing, in contrast to the fair
argument standard that examines evidence on only one side of the issue. (ld., at p. 1125.) As
the Court concluded,the decision-making process involves:
.a tatting of evidence for and against listing in a public quasi-adjudicatory setting, a
weighing of that evidence, and a Commission discretion to determine essentially a
question of fact based on that evidence. This process, in other words, contemplates a
meaningful opportunity to present evidence contrary to the petition and a meaningful
consideration of that evidence.
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(id., at p. 1126.) Therefore, in determining whether listing"may be warranted,"the Commission
must consider not only the petition and the report prepared on the petition by the Department,
but other evidence introduced in the proceedings. The Commission must decide this question in
light of the entire record.
In Center for Biological Diversity v. Caiifvmia Fish and Game Commission(2008) 166
Cal.App.4th 597,the court acknowledged that"the Commission is the finder of fact in the first
instance in evaluating the information in the record.0 (Id., at p. 611, citing NRDC, supra, 28
Cal.AppAth at p. 1125.) The court explained:
(T]he standard, at this threshold in the listing process, requires only that a substantial
possibility of listing could be found by an objective, reasonable person. The Commission
is not free to choose between conflicting inferences on subordinate issues and thereafter
rely upon those choices in assessing how a reasonable person would view the listing
decision. Its decision toms not on rationally based doubt about listing, but on the
absence of any substantial possibility that the species could be listed after the requisite
review of the status of the species by the Department(.]
(ibid.) Thus,without choosing between conflicting inferences,the Commission must objectively
evaluate and weigh the information both for and against the listing action and determine whether
there is a substantial possibility that the listing could occur. (id:, at p. 612.)
III
REASONS FOR FINDING
This statement of reasons for the finding sets forth an explanation of the basis for the
Commission's finding and its rejection of the petition to list the American pika as a threatened
species. It is not a comprehensive review of all information considered by the Commission and
for the most part does not address evidence that,while relevant to the proposed listing, was not
at issue in the Commission's decision. However, all written and oral comments presented to the
Commission prior to its April 10, 2008 meeting regarding the petition are considered part of the
record.
In order to accept this petition,the Commission is required to determine that it has sufficient
information to persuade a reasonable person that there is a substantial possibility that listing of
the American pika could occur. Guided by the NRDC and Center for Biological Diversity cases,
the Commission must objectively weigh and evaluate all evidence.
Fish and Game Code Section 2072.3 lists several informational categories to be evaluated in
determining whether a petition should be accepted. The petition and record as a whole were
insufficient to demonstrate that the listing action could occur.
The informational deficiencies and categories of information described in Section 2072.3 most
relevant to this finding are:
(1) Population trend;
(2) Population abundance;and
(3) Degree and immediacy of threat.
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1. Population Trend:
2. Population Abundance:
The petition contains minimal information on population abundance, density or trends. The
petition reports that°... pika populations have been lost from multiple low-elevation sites in
Yosemite National Park during the past 90 years." Otherwise, it reports no information regarding
population numbers, except for the White Mountains (O. p. sheltonr) subspecies. While it
appears that near-annual surveys have occurred within or near Bodie State Historic Park
(Nichols, personal communication to Gustafson, 2004 these surveys are not sufficient to
conclude that listing of this subspecies may be warranted. Among its deficiencies,the survey
results are not reported in the Population Status portion of the petition, the methodology and
survey site selection Is not adequately described,the information presented has not been
independently verified, confirmed or peer-reviewed, and the scope and context of the surveys in
relation to the entire Bodie Hills area is unclear, particularly since Dr. Nichols still observed pikes
in Bodie State Historic Park.
The petition does not describe the overall geographic range of the pika in California or the
geographic range of any of•the five subspecies found in the State. The petition provides no
information on the distribution of the pika within its California geographic range, other than to say
that elevations of historic populations[n California] ranged from 1370[meters]to 3700 [meters].
The petition provides no information or description on any overall trend in the size or distribution
of populations of the pika in California or of populations of four of the five sub-species occurring
in the State.
The Commission finds that the population status of the American pika in California is largely
unstudied and unknown. There have been no systematic, comprehensive, rangewide studies of
pikas in California, and the petition does not contain sufficient information about the American
pika throughout all or a significant portion of its range in California. Parameters to describe
abundance, density, recruitment and population trends are unknown or unavailable. Further, the
petition's statement that populations were lost from multiple low-elevation sites in Yosemite was
not justified, according to.a key researcher in the Yosemite National Park pika study, who stated .
that pika populations appeared healthy(Patton, personal communication).
Petitioner asserts that because of the lack of monitoring information, a rationale for listing should
not depend on showing that population status is declining in California. Instead, petitioner
argues that global warming poses a threat to the long-term survival of pikas in California and
listing is justified because:
1. the pika is a unique mammal and extremely vulnerable to high temperatures;
2. upper elevation habitat for California pikas has experienced significant
temperature increases, making it less suitable;
3. pika range in California is contracting upslope;
4. a recent study(Beever et al., 2003) reported pika population extirpations at six
Oregon and Nevada locations within the Great Basin ecoregion and attributed
extirpations to thermal stress from climate change; and
v. pikas in California are threatened by continued habitat alteration due to climate
change.
Petitioner described potential broad scale effects of climate change on wildlife and plant
communities of the Sierra Nevada ecoregion, and has cited sources to establish the vulnerability
of pikas to high temperatures. However,the petition does not discuss the potential for
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behavioral adaptations in pikas as a method of mitigating at least some anticipated effects of
global warming. This is especially relevant because pika populations at lower elevations(such
as Bodie State Historical Park) apparently reduce mid-day activity as a means of avoiding the
heat
The petition also asserts that sipper elevation habitat for California pikas has experienced
significant temperature increases and is now less suitable because pike range in California is
contradng upslope. However, the petition's evaluation of microhabitat conditions at upper
elevation habitat is inadequate, especially subtalus micxoclimate conditions related to
temperature. The petition does not adequately demonstrate that pika distribution in California
has contracted (or is contracting) upslope. Moreover,the petition does not show that upslope
habitat in California is significantly limited in its availability or quality, to the extent that an
• upslope shift in distribution would be expected to constitute a threat to pika populations
statewide.
Most important,the petition apparently attempts to use habitat conditions and population trends
in the Great Basin ecoregion as proxies to predict the demise of pikas in the Sierra Nevada
ecoregion of California. It does so without adequately comparing or contrasting these
ecoregions,and without providing sufficient information about this ecoregion in California. It is
erroneous to assume that because they are adjacent to one another,these ecoregions are
similar in terms of pika habitat suitability. Because of the availability of suitable, continuous high-
elevation habitat, distribution of pikas along the Sierra Nevadas may be much more continuous
than within the Great Basin. The petition fails to acknowledge or discuss this, and the
Commission does not believe that the decline of some pika populations in the Great Basin
constitutes sufficient information to create a substantial possibility that listing pikas within the
Sierra Nevada ecoregion in California may be warranted.
Fish and Game Code Section 2072.3 clearly states that the petition must provide information
about species' abundance and population trend. This information must be about the species in
California. Although some may suggest that pikas are difficult to survey, it is worth noting that, in
addition to the population trend data available from the Great Basin, abundance and population
trend information is available for other subspecies of pika in Alaska and China. This petition is
clearly deficient in that it fails to provide sufficient scientific information on both population trend
and abundance.
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3. Degree and immediacy of threat
The lack of population abundance and trend information in the petition also impacts the
discussion of purported threats to the American pika. Without a reliable population estimate,
realistic assessment of the scope of the threat to the species is impossible. Most listings of
other species by the Commission were dearly documented by utilizing population size to show
dramatic and measurable declines caused by the lack of protections. Some listings of species
looked to small population size initially to show the need for immediate protection.
The petition lacks empirical data to describe-population trend and abundance. Instead,
petitioner implicitly assumes that extirpations of pika populations in the Great Basin are
predictive of similar occurrences within the Sierra Nevada ecoregion. It is not reasonable to
accept such an assumption without empirical data and a comparison of the Sierra Nevada and
Great Basin ecoregions. Thus, in discussing purported threats to the American pika as a result
of climate change,the petition is speculative and does not provide sufficient information for the
Commission to determine that there is a substantial possibility that the listing of pikas could
occur.
Fish and Game Code Section 2072.3 explicitly requires the presentation of sufficient credible
information on the questions of degree and immediacy of threat and the impact of existing
management efforts. Section 2072.3 provides that"Petitions shall include information
regarding...the degree and immediacy of threat,the impact of existing management efforts...."
The petition lacks sufficient information on the degree and immediacy of threat component of the
statute under current conditions.
IV
FINAL DETERMINATION BY COMMISSION
The Commission has weighed and evaluated all information and inferences for and against
accepting the petition, including the scientific and general evidence in the petition,the
Department's written report, and written and oral comments received from members of the
public. Based upon the record, the Commission has determined that the petition and overall
record provides insufficient evidence to persuade an objective, reasonable person that the
petitioned action may be warranted. (Fish &G.Code§2074.2.) In making this determination the
Commission finds that the petition does not provide sufficient information in the categories of
population trend, abundance, and degree and immediacy of threat to find-that the petitioned
action may be warranted. The Commission also finds that the petition provided insufficient
information range-wide regarding population trends and abundance and degree and immediacy
of threat for the Commission to adequately assess the threat and find that an objective,
reasonable person would conclude there was a substantial passibility that listing the species
could occur. The petition is rejected without prejudice to CBD submitting a new petition based
on all available information about the status of the American pika in California.
Fish and Game Commission
V,
Dated:April 7, 2010 John Carlson Jr.,
Executive Director
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