In Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal.App.4th 969, three local water agencies intervened in a mandate action, arguing that the California Endangered Species Act (CESA) did not apply to the Department of Water Resources (DWR) because the agency did not qualify as a “person” within the meaning of CESA (Fish and Game Code) section 2080. The First District Court of Appeal disagreed with the appellant water agencies based on the court’s evaluation of CESA’s context, policies, and statutory language.

Section 2080 prohibits any “person” from taking an endangered or threatened species without appropriate permit authority from the Department of Fish and Game (DFG). Section 67 defines “person” to mean “any natural person or any partnership, corporation, limited liability company, trust, or other type of association.” Appellants first argued that the literal textual meaning of this definition excluded state agencies. The court agreed with appellants on this initial point, but went on to note that section 2 allowed an expansion of the definition if other statutory provisions or the context required. In the court’s view, this statutory invitation to go beyond a literal reading of section 67 undermined appellants’ main contention that the definition of “person” was limited to the literal reading of that section.

The court then went on to explain its conclusion that a state agency is a “person” under section 2080. First, the court examined CESA policies as set forth in sections 2053 and 2055. These sections generally promote the state’s policy of resource conservation and protection of endangered and threatened species. The court also turned to section 2081, which specifically allows DFG to authorize a take permit for public agencies, thus exempting them from the prohibition found in section 2080. The court reasoned that, if section 2080 did not apply to public agencies, the exemption for such agencies in section 2081 would be surplusage.

Next, the court reviewed the case law cited by the trial court, including Department of Fish and Game v. Anderson-Cottonwood Irrigation District (1992) 8 Cal.App.4th 1554, San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, and San Bernardino Valley Audubon Society v. Metropolitan Water District (1999) 71 Cal.App.4th 382. While none of these cases directly dealt with issue at bar, the court noted that they tacitly assumed that the public entity in question was a “person.” The court found this assumption logical because it made no sense to read section 2080 as exempting public agencies, which operate large infrastructure projects, while covering individuals and business associations, which generally take fewer species.

Finally, the court reviewed the interpretation of CESA by DFG, its implementing agency. The court found that DFG’s regulations contemplated that the incidental take permitting process applied to state agencies. Specifically, the regulations require additional information for take permit applications submitted by public agencies. The court also noted that DFG regulations expressly authorize the taking of spring-run chinook incidental to operation of the State Water Project. The court therefore concluded that DFG itself considers a state agency to be a “person.”

Appellants offered several arguments against “person”-hood for state agencies, but the court found each of these arguments to be unpersuasive. For example, appellants contended that the Legislature deliberately elected not to include the Federal Endangered Species Act’s (FESA) definition of “person” into CESA, which was enacted subsequent to FESA. Because the definition of “person” under FESA explicitly includes state agencies, appellants argued, the Legislature must not have intended state agencies to be persons under CESA. The court noted, however, that the definition of “person” in section 2080 had been created before the enactments of both FESA and CESA. Thus, the court disagreed with appellants’ interpretation of legislative intent.