By Leslie Z. Walker
In a case with a curious procedural posture, the Court of Appeal, First Appellate District, ruled that the Department of Water Resources is a “Person” for the purposes of Fish and Game Code section 2080 and thus is prohibited from taking an endangered or threatened species under the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal.App.4th 969.
The California Department of Water Resources (“DWR”) operates a pumping system that results in the taking endangered and threatened species of fish. Watershed Enforcers filed a petition for writ of mandate seeking to stop DWR from taking the fish species without a take permit under the California Endangered Species Act (“CESA”) (Fish & Game Code, § 2050 et seq.) Three local water agencies intervened arguing that CESA did not apply to DWR because it was not a “person” within the meaning of CESA. The trial court rejected this argument and granted the writ. DWR appealed, but then complied with the writ and the court dismissed its appeal. The local water agency interveners however, pursued the appeal arguing that DWR was not a “person” for purposes CESA. The appellate court decided the case, despite its mootness, because the issue was one of general public interest which was likely to recur. The appellate court held DWR is a “person” for the purposes of a CESA take permit. (Fish & Game Code, §§ 2080, 2081 subd. (a).)
The operation of the State Water Project’s Harvey O. Banks Pumping Plant causes the entrainment and loss of significant numbers of fish, including the following endangered or listed species: winter-run Chinook salmon; spring-run Chinook salmon; and Delta smelt. Watershed Enforcers filed a petition for writ of mandate to command DWR to cease the Banks Pumping Plant operation because DWR did not have a take permit under Section 2081 of the Fish and Game Code. Kern County Water Agency, San Luis & Delta Mendota Water Authority, and Wetlands Water District intervened. The trial court granted the petition and DWR and the interveners appealed. DWR complied with the writ and, at DWR’s request, the court dismissed the appeal.
The appeal centers around Kern’s argument that DWR is not a person for the purposes of Fish and Game Code section 2080 which provides, “No person shall . . . take . . . any species . . . that the [Fish and Game Commission] determines to be an endangered species, or a threatened species . . . “ “Take” means to catch, capture, or kill. Fish and Game may however, through a permit or memorandum of understanding, allow individuals, public agencies, and various other entities to take a endangered or threatened species for scientific, educational, or management purposes. (Fish & G. Code, § 2081 (a).)
The Court considered three rules of statutory interpretation. First, “the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (O’Kane v. Irvine (1996) 47 Cal.App.4th 207, 211). Second statutory language should not be considered in isolation but should be considered in the context of the entire statute, considering the stature’s nature and purpose. (People v. Cole (2006) 38 Cal.4th 964, 975.) Third, “statutes must be given a reasonable and common sense construction in accordance with the apparent purpose of the lawmakers.” (People v. Hinojosa (1980) 103 Cal.App.3d 57, 65-66.)
Interveners suggested that because the word “person” is ambiguous, reference should be given to the definition in Fish and Game Code section 67 which defines person as “any natural person or any partnership, corporation, limited liability company, trust, or other type of association,” and thus excludes state agencies. The court however, considered that other statutory language within CESA emphasizes the Act’s application to state agencies. Further, Fish and Game Code section 2081 exempts several entities, including public agencies, from the Section 2080 prohibition, in certain circumstances. The court reasoned that if Section 2081 exempts public agencies from Section 2080, then Section 2080 necessarily applies to public agencies.
Finally, the court gave deference to the Department of Fish and Game’s regulations which contemplate the application of the incidental take process to state agencies, and concluded that the state agency is a “person” for the purposes of Section 2080.
Leslie Z. Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.