California Endangered Species Act Prohibits State Agencies From Taking Threatened And Endangered Species Without Permit Authority

Last month the California Court of Appeal for the First District held that the California Endangered Species Act ("CESA") prohibits a state agency from taking threatened or endangered species without proper permit authority. In reaching this conclusion, the court resolved an interesting question of statutory construction, finding that a state agency is a "person" for purposes of CESA. The decision also indicates that courts will construe CESA liberally to promote the Legislature's goal of conserving threatened and endangered species.

Kern County Water Agency v. Watershed Enforcers concerned the Harvey O. Banks Pumping Plant, a facility that diverts water from the Sacramento River Delta as part of the State Water Project. In connection with its operations, the Banks Pumping Plant entrains and kills significant numbers of fish, including winter-run chinook salmon, spring-run chinook salmon, and delta smelt. California lists all three fish as threatened or endangered species.

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