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Kern County Water Agency v. Watershed Enforcers

June 17, 2010

KERN COUNTY WATER AGENCY, INTERVENOR AND APPELLANT,
v.
WATERSHED ENFORCERS, A PROJECT OF THE CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, RESPONDENT.
WATERSHED ENFORCERS, A PROJECT OF THE CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, RESPONDENT,
v.
SAN LUIS & DELTA-MENDOTA WATER AUTHORITY ET AL., INTERVENORS AND APPELLANTS.



(Alameda County Super. Ct. No. RG06292124). Honorable Frank Roesch.

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PUBLICATION

The California Department of Water Resources (DWR), a state agency, operates a pumping system that results in the taking of three endangered or threatened species of fish. Watershed Enforcers (Watershed), a nonprofit corporation, filed a petition for writ of mandate to compel DWR to stop taking the fish species without permit authority under the California Endangered Species Act (CESA) (Fish & Game Code, § 2050 et seq.).*fn1 Appellants, three local water agencies, intervened in the mandate proceedings and argued CESA did not apply to DWR because it was not a "person" within the meaning of section 2080. The trial court rejected this argument, and went on to consider and reject DWR's separate arguments against mandamus relief.

The trial court granted the writ petition. DWR appealed, but then complied with the trial court's writ of mandate and dismissed its appeal. The intervenors pursue their appeal, pressing their contention that a state agency is not a "person" for purposes of section 2080. Despite the appeal's mootness, we reach the merits because the issue is one of general public interest which is likely to recur.

We hold that a state agency is a "person" within the meaning of section 2080, which prohibits any "person" from taking an endangered or threatened species without appropriate permit authority from the California Department of Fish and Game (Department), as we explain below.

I. STATUTORY FRAMEWORK

The Legislature enacted CESA in 1984. (Stats. 1984, ch. 1240, § 2, pp. 4243−4248; see California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1540 (California Forestry Assn.).)*fn2

In section 2051, the Legislature found and declared that:

"(a) Certain species of fish, wildlife, and plants have been rendered extinct as a consequence of man's activities, untempered by adequate concern and conservation.

"(b) 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.

"(c) These species of fish, wildlife, and plants are of ecological, educational, historical, recreational, esthetic, economic, and scientific value to the people of this state, and the conservation, protection, and enhancement of these species and their habitat is of statewide concern."

In section 2052, the Legislature further found and declared "that it is the policy of the state to conserve, protect, restore, and enhance any endangered species or any threatened species and its habitat and that it is the intent of the Legislature, consistent with conserving the species, to acquire lands for habitat for these species."

And in section 2055, the Legislature found and declared "that it is the policy of this state that all state agencies, boards, and commissions shall seek to conserve endangered species and threatened species and shall utilize their authority in furtherance of the purposes of [CESA]." (Italics added.)

Article 3 of CESA governs the taking, importation, and sale of endangered and threatened species. Its key provision is section 2080:

"No person shall import into this state, export out of this state, or take, possess, purchase, or sell within this state, any species, or any part or product thereof, that the [Fish and Game Commission] determines to be an endangered species or a threatened species, or attempt any of those acts, except as otherwise provided in [CESA], the Native Plant Protection Act... or the California Desert Native Plants Act...."

"Central to CESA" is section 2080's "prohibition on the taking of an endangered or threatened species. [Citation.] To 'take' in this context means to catch, capture or kill.*fn3 [Citation.] Nonetheless, CESA allows the [Department] to authorize a 'take' that is incidental to an otherwise lawful activity if certain conditions are met. [Citation.]" (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 507 (Environmental Protection Information).)

Accordingly, section 2081 permits the Department to "authorize acts that are otherwise prohibited pursuant to Section 2080." Section 2081, subdivision (a) provides:

"Through permits or memorandums of understanding, the [D]department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import, export, take, or possess any endangered species [or] threatened species... for scientific, educational, or management purposes." (Italics added.)

But a section 2081, subdivision (a) taking is subject to stringent conditions, as set forth in subdivision (b), paragraphs (1) and (2):

"The [D]department may authorize, by permit, the take of endangered species [or] threatened species... if all of the following conditions are met:

"(1) The take is incidental to an otherwise lawful activity.

"(2) The impacts of the authorized take shall be minimized and fully mitigated. The measures required to meet this obligation shall be roughly proportional in extent to the impact of the authorized taking on the species. Where various measures are available to meet this obligation, the measures required shall maintain the applicant's objectives to the greatest extent possible. All required measures shall be capable of successful implementation. For purposes of this section only, impacts of taking include all impacts on the species that result from any act that would cause the proposed taking."

In referring to section 2081, subdivision (b), our Supreme Court declared: "At the heart of CESA is the obligation to mitigate [authorized] takes." (Environmental Protection Information, supra, 44 Cal.4th at p. 507.)

Subdivision (c) of section 2081 provides, in part, that "No permit may be issued pursuant to subdivision (b) if issuance of the permit would jeopardize the continued existence of the species."

At issue in this case is whether the above statutory framework applies to DWR, i.e., whether a state agency is a "person" within the meaning of section 2080. In the "General Definitions" chapter of the Fish and Game Code (div. 0.5, ch. 1, § 1 et seq.), the Legislature defines "person" in section 67: " 'Person' means any natural person or any partnership, corporation, limited liability company, trust, or other type of association." But the Legislature also declared a proviso: "Unless the provisions or the context otherwise requires, the definitions in this chapter govern the construction of this code...." (§ 2, italics added.)

II. FACTS AND PROCEDURAL BACKGROUND

The facts are undisputed. We take the facts from the trial court's ...


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