Removal of Squirrel From Protected List Is Overturned

In a victory for environmentalists, the California Supreme Court ruled Thursday that the Wilson administration improperly removed a squirrel from the state endangered species list after officials complained that the animal was interfering with development.

The 5-2 decision represented a setback for Gov. Pete Wilson’s Fish and Game Commission, which has been fighting with environmentalists over protection of endangered species. In an opinion by Justice Janice Rogers Brown, the governor’s former legal affairs secretary, the court found that the commission failed to comply with its own procedures when it “delisted” the Mojave ground squirrel in 1993 over the objections of department staff.

“Because it did not proceed in accordance with procedures mandated by law, the commission abused its discretion in delisting the species,” Brown wrote.

The state stripped the brown and white squirrel of its protected status at the behest of Kern County officials, who complained of interference with development and a dearth of evidence warranting protection. The squirrels’ removal marked the first time an animal was ousted from the list since the state endangered species law took effect in 1970.

Environmental activists filed a lawsuit, fearful that the commission’s action would lead to a flood of similar requests for removal of protections. A trial court and an appeals court found the Fish and Game Commission acted without performing a proper environmental review, and the state and Kern County appealed to the Supreme Court.

Deputy Atty. Gen. John Davidson said he expects Kern County to try once again to delist the squirrel, this time following the procedures the Supreme Court said are required. “The law wasn’t clear,” Davidson said. “Now it is clear.”

The squirrels live in 7,000 square miles of Mojave Desert that includes portions of Kern, Los Angeles, San Bernardino and Inyo counties. To build on land that is home to a threatened or endangered species, developers must either set aside land elsewhere for the animal or plant, or pay the state to help protect the species. Kern County officials have blamed the squirrel for disrupting 226 development projects.

Lawyers for environmental groups had argued that an environmental impact report was needed before an animal could be removed from the endangered or threatened list. The Supreme Court disagreed but said other provisions of the California Environmental Quality Act apply, including a mandated broader review.

The commission must consider mitigation measures and alternatives to removing a species from the list and respond to concerns in writing, said Joseph Brecher, who represented the Earthjustice Legal Defense Fund and a coalition of environmental groups in the case.

“Obviously this is a big defeat for the Wilson administration,” said Joel Reynolds, senior attorney with the Natural Resources Defense Council, an environmental group. “Any time the California Supreme Court takes a case like this and reaffirms the importance of endangered species protection, that is a defeat for Pete Wilson.”

Reynolds said the court seemed to be taking great care to resolve all the legal issues in the case. “There may be an environmental constituency on this court that is going to surprise a lot of people,” he said.

The Wilson administration has another endangered species case pending before the state high court. In that case, the governor wants the court to permit the state to suspend protection of endangered wildlife when calamities strike and property restoration is needed. An appeals court has ruled that the state endangered species law prohibits the destruction of protected species, a ruling Wilson said will interfere with nearly 200 pending projects to rebuild flood-damaged communities.

Craig Manson, general counsel of the Department of Fish and Game, said he was gratified that the court will allow the commission to delist a species with a less cumbersome review than an environmental impact report. He said he believes Kern County will be able to resolve the court’s procedural concerns.

Justices Marvin Baxter and Ming W. Chin dissented, arguing that the commission had followed the law in lifting the squirrels’ special status. Baxter, who wrote the dissent, complained that the court majority had made “a strained effort to fit a square peg into a round hole.”

Kern County Deputy Counsel Charles F. Collins said he was “very disappointed” with the court’s decision. Describing it as “very complex,” he said the county would have to study it further before deciding whether to renew the application to remove the squirrel’s protection.

Assemblyman Roy Ashburn (R-Bakersfield) said if compliance with the California Environmental Quality Act is needed to strip protection from animals and plants, then the same rules should be followed in putting the creatures on the list. He said he will use the court decision to work “vigorously” to remove all of the more than 200 creatures now on the state’s list.