MOUNTAIN LION FOUNDATION v. COUNTY OF KERN DEPARTMENT OF PLANNING AND DEVELOPMENT SERVICES (1996)

Defendant and appellant California Fish and Game Commission (commission) and real party in interest and appellant County of Kern Department of Planning and Development Services (county) ¹ appeal a judgment ordering them to comply with the environmental impact report (EIR) requirement of the California Environmental Quality Act (CEQA) (Pub.  Resources Code, § 21100 et seq.) before delisting a species from the California Endangered Species Act (CESA) (Fish & G.Code,2 § 2050 et seq.) list.³  Plaintiffs and appellants, Mountain Lion Foundation, Desert Protective Council, Inc., Natural Resources Defense Council, Defenders of Wildlife, and Sierra Club (collectively plaintiffs), appeal from that portion of the same judgment denying their petition to have the commission's decision to remove the Mojave ground squirrel from the threatened species list vacated.   We affirm.

Background

In 1970 the Legislature enacted a statutory scheme to protect endangered and rare animals.  (Stats.1970, ch. 1510, § 3, p. 2988.)   In 1984 these statutes were repealed and replaced with CESA. (Stats.1984, ch. 1162, § 6, p. 3988;  Stats.1984, ch. 1240, § 2, p. 4243.)   In enacting CESA, the Legislature found that certain species of wildlife are “threatened with ․ extinction because their habitats are threatened with destruction, adverse modification, or severe curtailment, or because of overexploitation, disease, predation, or other factors.” (§ 2051, subd. (b).)  The Legislature further found and declared that it is state policy to “conserve, protect, restore, and enhance any threatened species” and its habitat (§ 2052), and that all state agencies shall “seek to conserve ․ threatened species” (§ 2055).  “Threatened species” is defined as, inter alia, a native mammal that, “although not presently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts required” by CESA. (§ 2067.)

CESA requires the commission to establish a list of threatened species and authorizes it to add or remove species from the list if “it finds, upon receipt of sufficient scientific information pursuant to [§§ 2070–2079], that the action is warranted.” (§ 2070.)   The commission is also required to adopt guidelines by which interested parties may petition the commission to add or remove a species from the threatened species list (§ 2071), and criteria for determining if a species is threatened (§ 2071.5).

The commission may not accept petitions unless they include sufficient scientific information that action may be warranted. (§ 2072.3.) ⁴ The commission initially refers petitions to the Department of Fish and Game (department) for an evaluation and recommendation, made within 90 days of  referral, either to (1) reject the petition because it does not contain sufficient information to indicate the petitioned action may be warranted or (2) accept and consider the petition because it does contain such information. (§ 2073.5.) ⁵ After receiving the department's report, the commission must schedule a public meeting to consider the petition, the department's report, and any comments received. (§§ 2074 & 2074.2, subd.(a).)  At the conclusion of the meeting the commission must find either that (1) the petition does not provide sufficient information to indicate the petitioned action may be warranted and is therefore rejected (§ 2074.2, subd. (a)(1));  or (2) it provides sufficient information to indicate that the petitioned action “may be” warranted and is therefore accepted for consideration (§ 2074.2, subd. (a)(2)).

If the commission accepts the petition for consideration it publishes a notice of acceptance (§ 2074.2, subd. (a)(2)) and the department thereafter reviews the status of the concerned species, providing the commission a report within 12 months “based upon the best scientific information available to the department,” indicating whether the petitioned action “is warranted” (§ 2074.6).   Interested parties wanting to submit detailed written scientific reports to the commission on the petitioned action must do so not later than the time the department submits its section 2074.6 report to the commission.   Detailed scientific reports received after the department submits its report may not be considered.  (Cal.Code Regs., tit. 14, § 670.1, subd. (h)(1).)   Upon receipt of the department's report the commission schedules another public meeting to make a final determination whether the petitioned action is warranted.   The commission may delist a threatened species if it determines that the continued existence of the species is no longer threatened by (1) present or threatened modification or destruction of its habitat;  (2) overexploitation;  (3) predation;  (4) competition;  (5) disease;  (6) other natural occurrences or human-related activities;  or any combination  of these factors.  (Cal.Code Regs., tit. 14, § 670.1, subd.(i)(1)(A) & (B).)  If it finds the action is warranted it publishes a notice of its finding and a notice of proposed rulemaking (Gov.Code, § 11346.4) adding or removing the species from the threatened species list. (§§ 2075 & 2075.5.)   Commission findings are subject to judicial review under the procedure for writ of administrative mandamus. (§ 2076;  Code Civ. Proc., § 1094.5.)

After a species has been added to the threatened list, the department is required to review the species every 5 years to determine if the conditions that led to its original listing are still present. (§ 2077.)   As Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1114–1115, 33 Cal.Rptr.2d 904 summarized the procedure, CESA established a two-step process by which the commission determines whether to add or remove a species.   First, it determines whether the species is a candidate for listing or removal by determining whether the petition provides sufficient information to indicate the threatened listing or removal may be warranted.   If this hurdle is cleared, the petition is accepted for consideration, the department conducts a scientific review, and the commission determines whether adding or removing the species is warranted.

In 1971 the commission listed the Mojave ground squirrel on the rare animal list, the predecessor to the threatened species list.⁶  The department's 1987 and 1991 reviews of the squirrel confirmed its threatened status.

In November 1991 the county petitioned the commission to delist the squirrel as a threatened species.   The apparent basis for the petition was error in the 1971 designation of the squirrel as “threatened.”   The petition also alleged a lack of adequate scientific study of the squirrel and that its habitat range was extensive, much of it on federal land.

In the February 1992 required 90–day report to the commission (§ 2073.5), the department concluded the county's petition was deficient due to lack of requisite information and insufficient scientific data.   However, at the conclusion of the April 1992 hearing on the petition (§ 2074), the commission found sufficient information to indicate that delisting might be warranted and accepted the petition (§ 2074.2).

The department's subsequent status review (§ 2074.6), issued in March 1993, recommended retaining the squirrel on the threatened list, i.e., it  recommended that the county's petitioned action was not warranted.   The department found that the petition failed to address the subjects specified in section 2072.3 (see fn. 4, ante ), that it was inaccurate and misleading, and that the squirrel was threatened by drought and human development projects.

In April 1993 the county submitted to the commission a report on the squirrel prepared on its behalf by private environmental consultants (the SWCA Report) which came to a conclusion contrary to that of the department.   The SWCA report stated there was no literature demonstrating a threat to the squirrel and that its range was extensive and restricted by its historical evolution, not by human activities, and recommended removing the squirrel from the threatened list.   On May 12, 1993, the day before the scheduled hearing on its petition (§ 2075), the county submitted a supplemental petition, incorporating the findings of the SWCA report.

After a 2–day hearing, which included aerial and walking tours of the squirrel's habitat, the commission voted 4–0, with one abstention, to remove the squirrel from the list of threatened species.   On June 17, 1993, following a hearing on plaintiffs' request for reconsideration, the commission ratified its earlier decision and filed a notice with the Office of Planning and Research that its decision was exempt from CEQA requirements.  (Pub. Resources Code, § 21108, subd. (b).)  In August 1993 the commission formally adopted a regulation amending the threatened species list by removing the squirrel therefrom.  (Cal.Code Regs., tit. 14, § 670.5.)

Plaintiffs sought a writ of administrative mandamus ordering the commission to set aside its August 1993 amendment and previously adopted findings.   Their first cause of action (CESA) alleged that the commission violated the statutory procedure for delisting a species because (1) the county's original petition did not meet the information and scientific justification requirements of section 2072.3 and California Code of Regulations, title 14, section 670.1, subdivision (a);  (2) the public and the department were not given sufficient time to evaluate and respond to the supplement to the petition and SWCA report, in violation of sections 2074.4 and 2074.6;  and (3) the commission's findings were not supported by substantial evidence.

Plaintiffs' second cause of action (CEQA) alleged that delisting the Mojave ground squirrel would have a significant impact on the environment, so the commission was obligated, but failed, to prepare an EIR, as required by CEQA (Pub. Resources Code, § 21100) or, at the least, an initial study (Cal.Code Regs., tit. 14, § 15063) or negative declaration (Pub. Resources Code, § 21080, subd. (c)).

 The trial court granted judgment for defendants on the CESA cause of action.   It found that although the scientific studies on the squirrel incorporated in the county's petition were incomplete, they supported the petition's contention that there had never been reliable estimates as to the squirrel's population, and that the range and habitat were sufficiently extensive to support the species.   Consequently, the petition raised doubts as to whether threatened listing was appropriate and justified the commission's acceptance of the petition for further consideration.   The trial court also concluded that although the petition contained no information on “population trend,” the lack thereof did not under the circumstances violate the statutory mandate regarding the requisite information in a petition to have a species removed from the threatened list (§ 2072.3).   It further concluded that the public had adequate time to and did respond to the county's supplemental petition and SWCA report.

The trial court ruled in plaintiffs' favor on the CEQA cause of action.   It found that removing the squirrel from the threatened list was a “project” under CEQA, and that none of the exemptions to CEQA's pre-approval EIR requirement was applicable.   As a consequence of the commission's failure to comply with the EIR requirement, the court ordered it to vacate its decision removing the Mojave ground squirrel from the threatened species list.

Discussion

 In an action for administrative mandamus, the court's inquiry extends “to the questions whether the [administrative agency] has proceeded without, or in excess of jurisdiction;  whether there was a fair trial;  and whether there was any prejudicial abuse of discretion.   Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”  (Code Civ. Proc., § 1094.5, subd. (b).)  Abuse of discretion is established if the court determines that the agency's findings are not supported by substantial evidence “in light of the whole record.”  (Code Civ. Proc., § 1094.5, subd. (c).)  The phrase “in light of the whole record” requires the court to consider all relevant evidence, including evidence detracting from the agency's decision.   The scope of appellate review is identical to that of the trial court.  (Bixby v. Pierno (1971) 4 Cal.3d 130, 149, 93 Cal.Rptr. 234, 481 P.2d 242;  Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 141–142, 284 Cal.Rptr. 427.)   In other words, the appellate court conducts its own independent review of the administrative record to determine whether it contains substantial evidence to support the agency's decision and whether the agency followed requisite  procedures in arriving at its decision.  (See Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 622, 263 Cal.Rptr. 813.)

I

The first issue is whether the commission abused its discretion by removing the squirrel from the threatened list without preparation of an EIR.

CEQA requires all state commissions to prepare an EIR on any project they propose to carry out or approve which may have a significant effect on the environment.  (Pub. Resources Code, § 21100.)   A project is defined as, inter alia, “activit[ies] directly undertaken by any public agency” (Pub. Resources Code, § 21065, subd. (a)), and “the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately,․”  (Guideline 15378, subd. (a).) ⁷  An activity is exempt from CEQA if it is not a “project;” if it is a statutorily or categorically exempt project;  or “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.”  (Guideline 15061, subd. (b).)  If the agency determines after a preliminary review of the proposed activity that it is exempt, the agency files a notice of exemption.  (Guideline 15062.)

If the agency determines the activity is a non-exempt project, it conducts an initial study to determine whether the project may have a significant effect on the environment.   If the initial study shows that the project may cause a significant effect, an EIR is required.   If the study demonstrates no significant effect to the environment, the agency prepares a negative declaration to that effect.  (Pub. Resources Code, § 21080, subd. (c);  Guideline 15063.)

If an EIR is required, the agency must prepare a detailed statement addressing all significant effects of the project on the environment, including unavoidable and irreversible effects thereof, mitigation measures to minimize the effects, alternatives to the project, and the growth-inducing impact of the project.  (Pub. Resources Code, § 21100;  Guideline 15126.)   Preparation of the EIR calls for extensive research and information gathering, consultation with other public agencies, interested persons and organizations, and public review and comment.  (Pub. Resources Code, §§ 21080.3 & 21080.4;  City of Carmel–by–the–Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 241, 227 Cal.Rptr. 899.)   The EIR is “the heart” of CEQA,  the chief purpose of which is to provide the public and governmental agencies with detailed information about the environmental consequences of an agency's decision before the decision is made, and to demonstrate to apprehensive citizenry that the agency has in fact analyzed and considered the ecological implications of its action.  (Guideline 15003;  see also Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564, 276 Cal.Rptr. 410, 801 P.2d 1161;  No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86, 118 Cal.Rptr. 34, 529 P.2d 66;  San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 72, 198 Cal.Rptr. 634;  County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810, 108 Cal.Rptr. 377.)

Defendants contend that removing a species from the threatened species list is categorically exempt from CEQA requirements under Guideline 15061, subdivision(b)(3), which lists as a “possible” exemption from CEQA:  “The [proposed] activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment.   Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.”

 The use of the phrases “with certainty” and “no possibility” in Guideline 15061, subdivision (b)(3) sets a high standard for exemption, particularly when read in conjunction with the definition of a project:  an action which as a whole has the potential for ultimately resulting in a physical change in the environment.  (Guideline 15378, subd. (a).)  As Dunn–Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 655, 11 Cal.Rptr.2d 850 held, if it can be fairly argued on the basis of substantial evidence that an action might have an adverse impact on the environment, the action is not categorically exempt from CEQA, and an agency's action taken without first securing an EIR must be set aside as an abuse of discretion.

 The reports of the department prepared in response to the county's petition concluded that the squirrel continued to be threatened by modification and destruction of its habitat, given the rapid urban growth in its habitat and lack of coordinated planning to provide for its continued existence.   The county itself, in arguing for delisting, stated that the protected status of the squirrel has a significant inhibiting impact on the economic growth of eastern Kern County.   In light of this evidence, it cannot be “seen with certainty” that there is “no possibility” that delisting the squirrel will have no significant effect on the environment.   Removing the squirrel from the list  might open the region to potentially dramatic changes in the form of residential and commercial development.

 Defendants also argue they are exempt under Guidelines 15307 and 15308.   These guidelines provide an exemption from CEQA requirements for actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, enhancement, and protection of a natural resource or the environment where the regulatory process involves procedures for protection of the environment.   Examples include but are not limited to wildlife preservation activities of the department.   Relaxation of standards allowing environmental degradation are not included in these exemptions.

Rather than assuring protection of the environment, the removal of a species from the threatened list appears more likely to lessen the protection.   The act is comparable to the requirement of an EIR before establishing a hunting season.   In Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 132 Cal.Rptr. 377, 553 P.2d 537 (Wildlife Alive ) the Supreme Court concluded that these kinds of exemptions did not apply to the commission's establishment of the black bear hunting season.  “The fixing of hunting seasons, while doubtless having an indirect beneficial effect on the continuing survival of certain species, cannot fairly or readily be characterized as a preservation activity in the strict sense.”  (Id. at p. 205, 132 Cal.Rptr. 377, 553 P.2d 537, italics original.)  “There inheres in the fixing of hunting seasons ․ a serious risk of overkill and depletion of the affected species.”  (Id. at p. 206, 132 Cal.Rptr. 377, 553 P.2d 537.)   Similarly, the removal of a species from protected status opens the potential not only for its depletion but, in turn, a significant impact on the whole environment in which the species resides.   Furthermore, CESA has adopted CEQA's definition of “project” (see section I, ante ) (§ 2064), and there was no evidence that removing the squirrel from the threatened list was necessary to maintain, restore, protect or enhance the ecosystem of eastern Kern County as a whole.

II

 Defendants and amicus argue for the first time on appeal that Public Resources Code section 21080.5 exempts the commission from preparing an EIR when adding or removing a species from the threatened or endangered list.   The statute provides generally that “in specified areas of activity, when an agency has an approved regulatory program requiring information essentially duplicative of that which would be included in an EIR, written documentation of compliance with such regulatory program may be submitted in lieu of the EIR for the covered activity.”  (Citizens for  Non–Toxic Pest Control v. Department of Food & Agriculture (1986) 187 Cal.App.3d 1575, 1584, 232 Cal.Rptr. 729.)   As a general rule a party may not, on appeal, change the theory on which the case was tried unless the new theory presents only a question of law.  (See Panopulos v. Maderis (1956) 47 Cal.2d 337, 341–342, 303 P.2d 738.)   This exception is applicable to arguments of defendants and amicus.   However, the construction of Public Resources Code section 21080.5, the agency regulations promulgated thereunder, and the documents subject to judicial notice (Evid.Code, § 452, subds.(b) & (c)),⁸ when read together, do not support their argument.

Section 21080.5 was added to the Public Resources Code in 1975.   As originally enacted, it provided that when “the regulatory program of a state agency, ․ requires a plan ․, to be submitted in support of the issuance to a person, other than a public agency, of a lease, permit, license, certificate, or other entitlement for use, such plan ․ may be submitted in lieu of the [EIR] required by [CEQA];  provided, that the Secretary of the Resources Agency has certified the regulatory program” as meeting certain statutory criteria.   It also provided that “A regulatory program certified pursuant to [section 21080.5] is exempt from” EIR preparation.  (Stats.1975, ch. 1187, § 1, p. 2931.)

On August 24, 1976, approximately 8 months after the effective date of Public Resources Code section 21080.5, the Supreme Court held that CEQA applied to the Fish and Game Commission.  (Wildlife Alive, supra, 18 Cal.3d 190, 132 Cal.Rptr. 377, 553 P.2d 537.)   In reaching this conclusion it found the adoption of Public Resources Code section 21080.5 significant.  “This amendment to CEQA creates an alternative to the EIR requirement for qualified state agencies having important environmental protection responsibilities.   Agencies may satisfy their EIR obligation under this section by adopting and adhering to a regulatory program determined by the Secretary of the Resources Agency ․ to include” mandatory statutory features.  (Id. at p. 196, 132 Cal.Rptr. 377, 553 P.2d 537.)  “[T]he express exemption created in [Public Resources Code] section 21080.5 for certain agencies which follow specified abbreviated procedures may fairly be said to imply a rejection of other exemptions not expressly granted in CEQA.” (Ibid.)

At issue in Wildlife Alive was whether the commission was required to prepare an EIR prior to setting the black bear hunting season.   The Supreme Court observed that the requirements of Public Resources Code section 21080.5 “do not match the procedures mandated by the Fish and Game Code  under which the commission functions.   Of the five essential [requisite elements necessary for certification under Public Resources Code section 21080.5], only two are” included in the Fish and Game Code:  public review and comment (§§ 206 & 211–213) and consultation with other public agencies (§§ 208 & 211).  (Wildlife Alive, supra, 18 Cal.3d. at p. 197, 132 Cal.Rptr. 377, 553 P.2d 537.)   These code sections referred to in Wildlife Alive are contained in division 1 of the Fish and Game Code, entitled “Fish and Game Commission,” (§§ 101–500) and, within that division, in chapter 2, entitled “General Regulatory Powers,” (§§ 200–250) which deals with the commission's power to regulate the taking of fish and game.

In response to the commission's argument that compliance with CEQA would retard its work in protecting the environment through unnecessary duplication of tasks, Wildlife Alive noted that the commission might qualify for the limited exemption under Public Resources Code section 21080.5, “allowing it to satisfy CEQA by compliance with more abbreviated procedures.”  (18 Cal.3d. at p. 199, 132 Cal.Rptr. 377, 553 P.2d 537.)  Wildlife Alive concluded by granting the commission's request for a 90–day stay of the opinion's effective date to permit it to apply for and obtain the limited exemption under Public Resources Code section 21080.5.  “We believe that a 90–day stay is sufficient for [the commission's] purposes, for most of the regulations referred to by [the commission] will have become final, and protected from challenge under CEQA, by that time.”   It made the effective date of the opinion December 22, 1976.  (Id. at p. 207, 132 Cal.Rptr. 377, 553 P.2d 537.)

On October 19, 1976, section 3.90, entitled “Regulation Procedure” was added to title 14 (Natural Resources) of the California Administrative Code.⁹ This section contains the regulations, promulgated by the commission pursuant to the authority of Public Resources Code section 21080.5, governing its procedure for “adopting regulations” submitted to it by the department which could “have a significant effect on the environment.”   On December 8, 1976, specifically in response to Wildlife Alive, the secretary certified “the regulatory program of the Fish and Game Commission as meeting the requirements” of Public Resources Code section 21080.5.  (Cal. Resources Agency, Cal. EIR Monitor (Dec. 14, 1976).)   The secretary identified California Administrative Code, title 14, section 3.90 as the certified program.   The December 14, 1976, issue of the California EIR Monitor announced that certification was effective immediately, thereby allowing the commission to  comply with Public Resources Code section 21080.5 procedures “when adopting the angling regulations for 1977.”   The announcement also stated that only one other program had been certified to date under Public Resources Code section 21080.5:  regulation of timber harvesting activities by the Board and Division of Forestry.

In his statement of findings made in conjunction with certification, the secretary found that the commission's regulatory program complied with the requirements of Public Resources Code section 21080.5 because subsection (a) thereof “limits the section to regulatory programs of [s]tate agencies which require a plan containing environmental information to be submitted in support of the issuance to a person of a lease, license, [etc.]  ․ [¶] ․ The Commission does regulate the activities of the people of the [s]tate dealing with fish and wildlife.   Fish and Game Code [s]ection 200 [et seq.].” (Cal. Resources Agency, Cal. EIR Monitor (Dec. 14, 1976).)   The secretary's findings continued with a discussion of the relationship between a hunting or fishing license and the commission's setting of hunting seasons and adoption of other relevant regulations.

Neither Wildlife Alive nor the December 1976 certification documents contain any reference to the statutes governing endangered species.   CESA's predecessor statute had been in effect since 1971 (see Background section, ante ), although, unlike CESA, it did not direct the commission to establish a process for adding or removing species from the endangered or threatened list.   Furthermore, CESA, like its predecessor statute, is not contained in the same division of the Fish and Game Code as the statutes referred to in Wildlife Alive and the certification documents, i.e., division 1, chapter 2, section 200 et seq.   It is in division 3, entitled “Fish and Game Generally,” chapter 1.5, entitled “Endangered Species,” section 2050 et seq.

Public Resources Code section 21080.5 was amended in 1977, effective January 1, 1978, to provide that it applies “only to regulatory programs or portions thereof which involve either of the following:  [¶] (1) The issuance to a person of a lease, permit, license, certificate, or other entitlement for use.  [¶] (2) The adoption or approval of standards, rules, regulations, or plans for use in the regulatory program.”  (Stats.1977, ch. 1200, § 6.5, p. 3999.)   This language has not since been amended.  (See Pub. Resources Code, § 21080.5, subd. (b).)

On July 13, 1983, Guideline 15251 (see fn. 7, ante ) was added to list the programs certified by the secretary pursuant to Public Resources Code section 21080.5.   At the time there were 12 certified programs, one of which  was “The regulatory program of the Fish and Game Commission pursuant to the Fish and Game Code.” (Guideline 15251, subd. (b).)  Two more programs have been added to this list since 1983.   None of the other 13 programs deals with matters coming within the purview of either the commission or department.   They all relate to other state agencies, e.g., Coastal Commission, Department of Food and Agriculture, Department of Water Resources.  Section 670.1, which outlines the procedure for listing or delisting an endangered or threatened species, was not added to title 14 of the California Code of Regulations until May 30, 1986, 17 months after CESA's effective date of January 1, 1985.   In response to our request for the documentation submitted in conjunction with the certification of the commission's “regulatory program” listed in Guideline 15251, subdivision (b), the commission provided documents dealing only with the December 8, 1976, certification.

 Given this history, we conclude that the commission's regulatory program certified pursuant to Public Resources Code section 21080.5 is limited to its program governing the establishment of hunting and fishing seasons and the related issuance of hunting and fishing licenses.   The regulatory scheme for adding or removing an endangered or threatened species (Cal.Code Regs., tit. 14, § 670.1) has not, at least to date, been certified as qualifying as an alternative to the EIR requirements of CEQA.

III

On the basis that the National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.) is similar to CEQA and the federal Endangered Species Act (ESA) ( 16 U.S.C. § 1531 et seq.) is similar to CESA, defendants rely on two federal cases to support their argument that an EIR is not required for addition or removal of a species to the threatened list.

 At issue in Pacific Legal Foundation v. Andrus (6th Cir.1981) 657 F.2d 829 (Pacific Legal ) was whether an impact statement was necessary before listing a species on the federal endangered or threatened list.   Pacific Legal held that an impact statement was not required because (1) the Secretary of the Interior (the Secretary) is required to list a species if he finds true one or more of five statutorily designated factors;  (2) the statutory mandate of ESA prevents the Secretary from considering the environmental impact of listing a species;  (3) listing a species furthers the purposes of NEPA by preserving the environment and preventing the irretrievable loss of a natural resource;  (4) the legislative histories of NEPA and ESA indicated that Congress did not intend the Secretary to file an impact statement before listing a species as endangered or threatened.  (Id. at pp. 835–837.)

At issue in Douglas County v. Babbitt (9th Cir.1995) 48 F.3d 1495 (Douglas County ) was whether an impact statement was necessary when the Secretary designates federal land a critical habitat for an endangered species pursuant to ESA. Douglas County reached the same conclusion as Pacific Legal, holding additionally that NEPA's purpose is to protect the physical environment, so an impact statement is unnecessary when the action at issue does not alter the natural, untouched physical environment, i.e., an action that “prevents human interference with the environment.”  (Douglas County, supra, 48 F.3d at p. 1506.)  Douglas County expanded on the rationale that ESA furthers the NEPA goals of enhancing the environment and preventing irreparable damage thereto without an impact statement.  “By designating critical habitats for endangered or threatened species, the Secretary” is working toward this goal of enhancement and prevention and requiring an impact statement “ ‘would only hinder [the] efforts at attaining the goal of improving the environment.’  [Citation.]”  (Ibid.)

 These cases are inapposite because of differences between the federal and state acts.   ESA mandates the Secretary to list a species if one of five factors listed in the act exists.  (See 16 U.S.C. § 1533(a)(1);  Pacific Legal, supra, 657 F.2d at p. 835.)   Under CESA, the commission “shall” add or remove a species from the established or threatened lists if it finds the action is warranted upon receipt of sufficient scientific evidence (§ 2070), but unlike ESA, CESA itself does not set forth the factors for determining threatened or endangered status.   Instead, it leaves to the commission the responsibility of developing such criteria (§ 2071.5), and the commission has given itself discretion in the criteria it considers for delisting a species (Cal.Code Regs., tit. 14, § 670.1, subd. (i)(1)(B)).

Pursuant to its statutory authority, the commission has established six factors for determination of threatened or endangered status.   If the commission determines that any one of the factors exists, it shall list a species as endangered or threatened.  (See Cal.Code Regs., tit. 14, § 670.1, subd. (i)(1)(A).)   However, if the commission determines that the continued existence of the species is no longer threatened by any of the six factors, it may delist the species.  (See Cal.Code Regs., tit. 14, § 670.1, subd. (i)(1)(B).)   The implication from this distinction in the language between the listing and delisting regulations is that the commission requires itself to list a species if there is evidence of an enumerated factor, but is not required to delist a species in the absence of evidence of all enumerated factors.   In other words, it has discretion when determining a delisting request to consider scientific information additional to that relevant to the six enumerated factors applicable to a listing request.   Thus, although section 2070 requires  the commission to remove a species if it finds delisting is warranted upon the receipt of “sufficient scientific evidence,” the scientific evidence it may consider to make such a finding is more extensive than the evidence it considers for listing a species.   Furthermore, neither CESA nor the regulations promulgated thereunder define “sufficient scientific information,” so there is no limitation to the scope of information the commission may receive pursuant to a delisting petition.

 The procedure for removing a species from a threatened list is undeniably similar to the procedural requirements of an EIR, but the two procedures are not identical.   Both procedures require written reports and public review and comment, but the CESA procedure does not require the commission to consult with other public agencies,¹⁰ to consider feasible alternatives and mitigation measures to minimize any significant adverse environmental impact of delisting the species, or to include in its decision to delist the written responses to significant environmental points raised during the evaluation process.  (Pub. Resources Code, §§ 21061 & 21080.5, subds. (d)(2)(iii), (d)(2)(iv) & (d)(3)(i).)

 Nearly 20 years ago the California Supreme Court held that CEQA applied to the commission.  (Wildlife Alive, supra, 18 Cal.3d at pp. 194–195, 132 Cal.Rptr. 377, 553 P.2d 537.)   CEQA is to be interpreted so as to afford the “fullest possible protection to the environment.”  (Id. at p. 206, 132 Cal.Rptr. 377, 553 P.2d 537.)   Absent a categorical exemption to CEQA, an alternate statute mandating a specific action if a specific set of circumstances exists, or a procedure that is the functional equivalent of an EIR (id. at p. 201, 132 Cal.Rptr. 377, 553 P.2d 537), an agency project having the potential for a significant effect on the environment is subject to all CEQA requirements, including the EIR procedure.   Insofar as the action of delisting a threatened or endangered species does not fall within the exceptions to CEQA, it requires compliance with the EIR procedure.

IV

 We next address plaintiffs' contention that the commission's findings required under CESA are not supported by the evidence.   Although our determination of this issue involves a limited weighing of the evidence before the agency to estimate its worth fairly, we do not review the evidence independently and do not substitute our findings or inferences  for those of the agency.   It is the agency's task to weigh the preponderance of conflicting evidence.   The court cannot reverse an agency decision unless, based on the evidence before the agency, a reasonable person could not reach the same decision.  (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 609–610, 15 Cal.Rptr.2d 779 (Sierra Club ).)

Pursuant to its statutory authority to establish criteria for determining threatened or endangered status (§ 2071.5), the commission has established that it may delist a species if it determines that the species' continued existence is no longer threatened by “(1) [p]resent or threatened modification or destruction of its habitat;  [¶] (2) Overexploitation;  [¶] (3) Predation;  [¶] (4) Competition;  [¶] (5) Disease;  or [¶] (6) Other natural occurrences of human-related activities.”  (Cal.Code Regs., tit. 14, § 670.1, subd. (i)(1)(B).)   The SWCA report addressed each of these factors and concluded that none of them presented a threat to the squirrel.   Comments from the public at the commission's May 1993 hearing for final consideration of the county's petition to delist and the commissioners' on-site inspection of the squirrel's habitat also provided information that these factors did not threaten the squirrel.

Plaintiffs argue that the SWCA report does not constitute sufficient evidence to support the commission's decision because of the differing conclusions in the department's status report (§ 2074.6) and the public comments critical of the SWCA report.   We reiterate that resolution of conflicting evidence is the task of the commission, not the courts.   Insofar as a reasonable person could reach the same conclusion as the commission on the basis of the evidence before it, the evidence is sufficient to support the commission's decision.   (Sierra Club, supra, 12 Cal.App.4th at p. 610, 15 Cal.Rptr.2d 779.)

In a related argument, plaintiffs contend the commission should not have accepted the county's petition to delist (§ 2072.3) because, according to the department's initial review of the petition (§ 2073.5), it did not contain “any scientific information” on population trend.

Section 2072.3 states that to be accepted a petition shall include, at a minimum, sufficient scientific information that an action may be warranted.   It then states that the petition “shall include information” regarding nine designated topics, including population trend.   The statute does not specify the precise content of the information on these nine topics.

The county's petition does not contain what is customarily characterized as “scientific” information regarding the squirrel's population trend, e.g., studies tracking the squirrel's numerical growth or decline over a period of  years.   However, it contains information in general about population trend to the extent it states there is an absence of comprehensive population studies.   It also contains scientific information on the related topics of increasing population densities in specific areas and increasing habitat ranges, as well as the other topics listed in section 2072.3.

 This combination of general and scientific information satisfies the statutory threshold step that action “may be” warranted.   A logical reading of section 2072.3 is that it requires a petition to contain some information about the designated topics, the totality of which constitutes “sufficient scientific information.”   It does not require “sufficient scientific information” about each topic.   Insofar as the county's petition contained information about population trend, albeit unscientific, the commission was not precluded from accepting it for possible action.

Judgment affirmed.

FOOTNOTES

1.   The commission and the county are collectively referred to as defendants except where it is necessary to refer to each party individually.

FN2. Unless otherwise indicated, all future statutory references are to the Fish and Game Code..  FN2. Unless otherwise indicated, all future statutory references are to the Fish and Game Code.

3.   CESA governs both endangered and threatened species.   The focus of this appeal is on threatened species.

4.   Section 2072.3 states:  “To be accepted, a petition shall, at a minimum, include sufficient scientific information that a petitioned action may be warranted.   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.”

5.   California Code of Regulations, title 14, section 670.1, subdivision (d) requires the department's report made pursuant to section 2073.5 to contain an evaluation of whether the petition provides sufficient scientific information on “(A) population trend;  [¶] (B) range;  [¶] (C) distribution;  [¶] (D) abundance;  [¶] (E) life history;  [¶] (F) kind of habitat necessary for survival;  [¶] (G) factors affecting the ability to survive and reproduce;  [¶] (H) degree and immediacy of threat;  [¶] (I) impact of existing management efforts;  [¶] (J) suggestions for future management;  [¶] (K) availability and sources of information;  and [¶] (L) a detailed distribution map.”   A petition is deemed incomplete if it fails to contain information in each of these categories, and incomplete petitions must be returned to the petitioner within 10 days of receipt.   (Cal.Code Regs., tit. 14, § 670.1, subd. (b) & (e)(1).)

6.   Prior to the 1984 revision of the endangered species statutes, the term “rare” was used instead of “threatened.”   See former section 2051, subdivision (b) (added by Stats.1970, ch. 1510, § 3, p. 2998;  repealed by Stats.1984, ch. 1162, § 5, p. 3988 and Stats.1984, ch. 1240, § 1, p. 4243, eff. Jan. 1, 1985).

7.   References to “Guidelines” are to CEQA Guidelines, California Code of Regulations, title 14, section 15000 et seq.

8.   We received from the commission all available documentation relevant to its certification of regulatory programs by the Secretary of the Resources Agency (the secretary).

9.   Section 3.90 was renumbered as section 781.5, effective February 17, 1982, without any change in language.   Effective January 1, 1988, the California Administrative Code was renamed the California Code of Regulations.

10.   After a petition has been accepted for consideration by the commission, section 2074.4 requires the department to notify “interested parties.”   The applicable regulations require solicitation of comments from “independent sources” and review of the department's status report by members in the scientific community.  (Cal.Code Regs., tit. 14, § 670.1, subd. (f)(2).)

HANING, Associate Judge.

PETERSON, P.J., and KING, J., concur.