Protected Delta Fish Relieved That State Agencies are People Too

June 25, 2010, by Dawn McIntosh

The Department of Water Resources ("DWR"), a state agency, operates a pumping system in the Sacramento -San Joaquin Delta that results in the taking of three fish species listed as threatened or endangered under the California Endangered Species Act ("CESA"). DWR was sued by Watershed Enforcers, a nonprofit corporation, to stop DWR from pumping unless and until it obtained a permit authorizing the take of the listed fish species under CESA. Three local water agencies intervened in the lawsuit arguing that DWR is not a "person" as that term is defined in CESA. Watershed Enforcers prevailed in the trial court and DWR eventually complied with the trial court's order and obtained the required authorizations under CESA. The water districts, undaunted by the fact that the case was mooted by DWR's satisfaction of the judgment, appealed, seeking a determination that a state agency is not a "person" under CESA.

The Court of Appeal rejected the water agencies' contention and agreed with the trial court that the definition of person in CESA Section 2080 applies to public agencies, including state agencies, even though they are not specifically mentioned. In reaching its conclusion, the Court relied on long standing principles of statutory construction - harmonize the various parts of legislative enactments and give statutes a reasonable and common sense construction in accordance with the apparent purpose and intent of the lawmakers - based in part on the clear legislative policies set forth in CESA that state agencies shall use their authorities to protect and conserve endangered species. The Court also found persuasive the statutory construction by the Cal. Dept. of Fish and Game, the agency charged with implementing CESA, which had consistently interpreted the term "person" to apply to public agencies. Of note - the water agencies relied on part of an opinion by the Attorney General, written after the trial court ruling in this case, which concluded that a public agency is not a "person" under CESA. The Court summarily rejected this opinion, finding it was not persuasive authority.

To review the Court of Appeal opinion, click this link - Kern County Water Agency v. Watershed Enforcers.

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