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Court of Appeal, First District, Division 2, California.

PLANNING AND CONSERVATION LEAGUE et al., Plaintiffs and Respondents, v. DEPARTMENT OF FISH AND GAME et al., Defendants and Appellants.

No. A074048.

Decided: April 10, 1997

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz, IV, Assistant Attorney General, Linus Masouredis, Deputy Attorney General, for Defendants and Appellants. J. William Yeates, Heather Tattershall, Law Office of J. William Yeates, Sacramento, Joel Reynolds, Natural Resources Defense Council, Los Angeles, Tara Mueller, Natural Heritage Institute, Walnut Creek, Michael H. Remy, Remy, Thomas and Moose, Sacramento, Michael R. Sherwood, Sierra Club Legal Defense Fund, San Francisco, for Plaintiffs and Respondents.

Petitioners 1 filed this action challenging the issuance of a “California Endangered Species Act Permit for Emergency Management Measures” (the EMM permit or the permit) by the California Department of Fish and Game (the Department).   Issued to “all persons and public agencies,” the EMM permit authorizes the killing or capturing of otherwise protected California species in connection with public or private activities to “prevent or mitigate an emergency or natural disaster” or to “restore any property” to its pre-emergency condition.   The Department appeals after the trial court found the issuance of the EMM permit inconsistent with the authority the Legislature granted the Department under the California Endangered Species Act (CESA).  (Fish and Game Code, § 2050, et seq.2 )  For the reasons discussed more fully below, we agree that, as found by the trial court, the permit at issue cannot be squared with the controlling provisions of CESA, and is therefore invalid.   We shall therefore affirm the judgment.

Facts and Procedural History

Severe winter rainstorms inundated California shortly after the New Year in 1995.   Beginning on January 6, Governor Pete Wilson began proclaiming states of emergency in those California counties experiencing major flood emergencies.   On March 17, 1995, the Department issued the challenged EMM permit.

The permit authorizes “all persons[3 ] and public agencies” to take 4 “species listed as threatened species or endangered species, or candidate species ․ for management purposes when necessary to prevent or mitigate an emergency or natural disaster” within counties declared to be in “a state of emergency” by the Governor or within counties or cities in which a local emergency has been proclaimed by the “governing body or duly designated official.”   The permit also authorizes the take of any and all candidate, threatened, or endangered species (hereafter collectively protected species) pursuant to any activity whose purpose is to “restore any property or public or private facility to the condition in which it existed immediately before an emergency or natural disaster.”

“Emergency” is defined in the permit as “a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, public safety, or essential public services.”   The term is defined to include, but is not limited to, “such occurrences as fire, flood, earthquake, or other soil or geologic movements, as well as such occurrences as riot, accident, or sabotage.”

The permit “is effective immediately” and continues in effect for the next five years until March 16, 2000, “unless sooner modified or revoked as provided herein.”   It is self-executing and delegates to persons engaging in the permitted activity the ultimate responsibility of abiding by its conditions.   Thus, any person who “becomes aware of the take” of protected species is required to report it to the Department “as soon as practicable and shall deliver the remains of any animal taken to the Department of Fish and Game upon demand.”

The Department describes “[t]ypical emergency-necessitated activities authorized by this permit” as “filling a hole in a breached dike, cleaning debris from bridge towers, removing flood-caused debris from river beds and agricultural fields, rebuilding roads washed out by floods, etc.”   On the other hand, petitioners envision the permit “allowing a broad range of activities potentially devastating to endangered species, from stream bed alteration to road-building to construction of dams or levees-all allowed under the EMM permit, if purportedly undertaken to prevent some unspecified emergency.”

On June 6, 1995, petitioners filed a petition for writ of mandate challenging the Department's authority to issue the permit.   Petitioners contended that in issuing the EMM permit, the Department exceeded its authority and otherwise failed to proceed in the manner required by law, because the permit is unauthorized under CESA which contains no general exemption for emergency activities.   Petitioners claim the EMM permit also violates CESA's “take” prohibition, state agency consultation provisions and legislative intent provisions.   The trial court granted the writ and invalidated the permit after determining the Department exceeded its authority because “[t]here is no express or implied exemption in CESA which authorizes issuance of the permit.”   This appeal followed.


 Describing the petition as a “facial challenge” to the EMM permit, the Department argues that it fails if any permit provision is valid.  (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)   The Department also argues the permit should be narrowly construed to uphold its validity.   We reject both arguments.

Although the Department unquestionably possesses the power to regulate activities affecting protected species, the power it received from the Legislature is not unlimited.   The law is clear “[a]n administrative agency may not, under the guise of rulemaking, abridge or enlarge its authority or exceed the powers given to it by the statute-the source of its power.”  (Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1480, 277 Cal.Rptr. 481;   Cal. Drive-in Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 302-303, 140 P.2d 657.)   In other words:  “[a]dministrative bodies and officers have only such powers as have expressly or impliedly been conferred upon them by the Constitution or by statute.  [Citations].   In the absence of valid statutory or constitutional authority, an administrative agency may not, under the guise of regulation, substitute its judgment for that of the Legislature.   Administrative [actions] in conflict with applicable statutes are null and void.  [Citations.]”   (Cal. State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340, 346-347, 129 Cal.Rptr. 824;  citing Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103, 77 Cal.Rptr. 224, 453 P.2d 728.)   Consequently, if the Department had no statutory authority to issue the permit in the first place, it does not matter how narrowly or broadly this court may choose to construe the permit's terms-the administrative action “must be declared void.”  (Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 391, 211 Cal.Rptr. 758, 696 P.2d 150.)

 According to the Department “any challenge to the EMM permit as it might be applied to authorize any particular emergency response or recovery activity in the future is not ripe.”   The Department insists the activities authorized under the permit and the effect of these activities on protected species are simply too remote, speculative and intangible at this juncture to constitute imminent harm.   On the theory that the harm perceived by petitioners is, at best, the mere potential for future injury, the Department argues the issues are not now sufficiently ripe for review.  (See State Bd. of Education v. Honig (1993) 13 Cal.App.4th 720, 742-743, 16 Cal.Rptr.2d 727.)

“[A] basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy.”  (Pacific Legal Foundation v. California Coastal Comm. (1982) 33 Cal.3d 158, 169, 188 Cal.Rptr. 104, 655 P.2d 306.)   The ripeness doctrine is designed to “ ‘prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’ ”  (Id. at p. 171, 188 Cal.Rptr. 104, 655 P.2d 306, quoting Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 148-149, 87 S.Ct. 1507, 1515-1516, 18 L.Ed.2d 681.)   The doctrine has no application to this case.

 First, the issue tendered is purely legal:  whether, as the Department claims, CESA provides it authority to issue the EMM permit.   The record is sufficient to adjudicate this issue, since all events leading to issuance of the permit have already occurred and no additional facts need to be developed.   Petitioners need not wait for the harm they fear to materialize when their grievance is with the Department's authority to issue the permit in the first place.   As stated in Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1723, 45 Cal.Rptr.2d 752, “a challenge to the facial validity of an administrative act creates an actual controversy appropriate for judicial relief.”

Second, the challenged issuance of the EMM permit is final and definitive.   The permit purports to authorize “all persons and public agencies” to engage in permitted activities “effective immediately.”   To the extent the permit prospectively authorizes unknown future activities “to prevent or mitigate an emergency or natural disaster” or to “restore any property or public or private facility” to its pre-emergency condition, it represents a concrete injury sufficiently direct and immediate to render the issue appropriate for judicial resolution at this time.

Although the Department vigorously argues the permit's true “bite” will not be felt until an emergency has been formally declared and immediate action is necessary to prevent loss of life and property, it can be read to authorize ongoing, day-to-day activities.   The permit's “Description of Permitted Activity” authorizes emergency measures “when activity is necessary to prevent or mitigate an emergency or natural disaster.”   Thus, while it is true the permit defines “emergency” as “a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action” nothing in the permit itself limits the activities designed to “prevent or mitigate” this “sudden unexpected occurrence” to only those activities taking place when the emergency is imminent.

 Having determined the instant controversy is ripe for review we emphasize the narrowness of the issue before us:  Was the Department's issuance of the EMM permit within the scope of its delegated authority under CESA, the enabling statute?   We address this question de novo.  (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 600, 51 Cal.Rptr.2d 897), rev. den.   July 24, 1996 (Moreno Valley ).   In doing so, we intimate no judgment on whether the permit provisions are the most practicable, environmentally-sensitive way of dealing with emergencies.   Nor do we express an opinion whether the permit is a proper and necessary response to protecting life and property.   The issue is simply whether the Department had the legal authority to make this decision, no matter how wise or unwise the underlying policy may be.

Legislative Overview

The Legislature enacted CESA in 1984.  (Stats.1984, ch. 1240, § 2.) Its object is identified in section 2051, which declares that the “conservation, protection, and enhancement” of species protected under CESA “and their habitat is of statewide concern.” (§ 2051, subd. (c).)  The fundamental purposes of CESA are to “conserve, protect, restore, and enhance” protected species and the habitats upon which they depend for survival. (§ 2052;  see also § 2055.)   In the service of this objective, sections 2080 and 2085 prohibit any person from taking, possessing, purchasing or selling any protected species.   The taking of an endangered species is unlawful, subject to criminal and civil penalties.  (See §§ 12001, 12002, 2014, subd. (a).)

The Department conceded at the time it issued the EMM permit that CESA contained no express emergency exception from the general prohibition against taking protected species.   The Department found authority for the permit in section 2081.   That statute, which is at the center of this case, sets forth the primary exceptions to CESA's take prohibition.   Section 2081 provides in its entirety as follows:  “Through permits or memorandums of understanding, the department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import, export, take or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes.”  (Italics added.)

The Department's central claim is that this provision delegates to the Department broad quasi-legislative power to issue permits or enter into memorandums of understanding authorizing takes for “management purposes.”   In the Department's view, the phrase “management purposes” should be interpreted to authorize any “incidental take” of protected species “in connection with some other lawful activity or project which [the Department] has reviewed or which it supervises.”

Petitioners question this so-called “management purposes” exception to CESA's prohibition against “take” by pointing out the permit here at issue does not seek to “manage” or to benefit species as section 2081 assertedly requires.   To the contrary, petitioners argue the EMM permit authorizes the destruction of protected species without any management purpose and that this is inimical to CESA's fundamental goal to “conserve, protect, restore, and enhance” species in need of protection.

Meaning of “Management Purposes”

As noted, section 2081 authorizes take of protected species for “scientific,” “educational” and “management” purposes.   The term “management purposes” is not defined in CESA or in any implementing regulations.   Hence, the critical issue in this case is whether the “management purposes” provision of section 2081 is intended to authorize the Department to issue a permit approving the taking of protected species if such taking is incidental to, and not the purpose of, an otherwise lawful activity, such as mitigation of the impact of an emergency or natural disaster.

This is certainly how “management purposes” has been interpreted by the Department.   In the past it has granted “section 2081 permits” authorizing the incidental take of protected species in connection with disparate commercial activities, not just projects designed to preserve or benefit protected species.   For example, section 2081 permits have been issued to facilitate development of an automobile test track facility, gas lines, a business park, a landfill, mines and other projects unrelated to an emergency or natural disaster.   While the Department's documents and guidelines refer to such permits as providing a “net benefit” to the species, that is not because the project authorized by the permit is itself designed to benefit protected species.   Instead, it is the Department's practice to imposes site-specific mitigation measures to ensure impacts to the protected species are avoided or minimized, thereby providing a “net benefit.”

The Department theorizes the EMM permit at issue is simply a logical extension of its authority to issue section 2081 permits sanctioning incidental takes of protected species in connection with lawful activities.   However, because the EMM permit had to be issued in advance, when the exact contours of any emergency or natural disaster were unknown, it was not possible to craft site-specific mitigation measures or adhere to the Department's usual “net benefit” methodology.   Therefore, under the Department's reasoning, it is only by first imputing a legislative intent defining the “management purposes” exception to CESA's general take prohibition as authorizing takes incident to lawful activities that the Department can harmonize the permit at issue with section 2081.

The linchpin in the Department's analysis is its view that the “management purposes” provision of section 2081 is analogous to the “incidental take” provision of the Federal Endangered Species Act (FESA) enacted in 1973.  (16 U.S.C. § 1531 et seq.)   Because the similarities and differences between the state and federal acts set the stage for many of the arguments in this case, we set out a brief comparison of pertinent provisions.   However, while CESA shares the same goals as FESA, the two statutes need not be completely congruous, as FESA leaves the states free to adopt more restrictive requirements concerning the take of protected species than those imposed at the federal level.  (16 U.S.C. § 1535, subd. (f).)

FESA requires federal agencies to consult with the Secretary of the Interior with respect to government-sponsored activities which might result in “incidental takes.” 5  (16 U.S.C. § 1536, subd. (a)(2).)   The state counterpart to this requirement is the “state agency consultation” provisions of sections 2090-2097.   Among other things, these provisions obligate state agencies to consult with the Department to ensure any proposed governmental action resulting in an incidental taking of protected species contain “reasonable and prudent measures that are necessary and appropriate to minimize the adverse impacts of the incidental taking.” (§ 2091.)

 In 1982, Congress amended FESA, to authorize the Secretary of the Interior to permit an otherwise prohibited “take” of protected species for private activities that might result in takes “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”  (16 U.S.C. § 1539, subd. (a)(1)(B).)   Before such an incidental take permit is issued, the plan must be scrutinized, public comment considered, and findings made that:  (1) the taking will be incidental;  (2) the applicant will minimize and mitigate the impacts to the extent possible;  (3) adequate funding will be insured;  and (4) the taking will not appreciably reduce the likelihood of survival of the species.  (16 U.S.C. § 1539(a)(2)(A)(B).)   The legislative history of the 1982 amendment makes clear that the incidental take exception was enacted for the specific purpose of allowing private land development to proceed without violating FESA's take prohibition.  (See generally, Friends of Endangered Species v. Jantzen (N.D.Cal.1984) 596 F.Supp. 518, 522.)   Despite obvious differences in semantics and structure, the Department contends section 2081's “management purposes” authorization is “the functional equivalent” of FESA's permit process allowing takes incident to private activities.   While the Department's interpretation “is entitled to great weight” it is not controlling.  “The final meaning of a statute ․ rests with the courts.”   (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389, 241 Cal.Rptr. 67, 743 P.2d 1323.)

The Court of Appeal Opinion in Moreno Valley

The Department's administrative construction of section 2081 was called into serious question in Moreno Valley.   That case involved a challenge to section 2081 permits issued by the Department authorizing the incidental take of protected species in connection with the construction of 7,763 dwelling units and a 650-acre business park.  (Id. at p. 598, 51 Cal.Rptr.2d 897.)   The petitioners in Moreno Valley claimed the permits issued for the project violated CESA because the take authorization for “management purposes” in section 2081 was not meant to authorize takes incident to private development.   While it found the challenge barred by laches, the court indicated that if it were deciding the issue on its merits, it would have found the agency agreement, pursuant to which the Department issued section 2081 permits allowing the take of protected species, to be invalid under CESA.  (Id. at p. 605, 51 Cal.Rptr.2d 897.)

In so holding, Moreno Valley points out that CESA does not expressly include a provision allowing incidental takes in connection with land development or other private lawful activities.   The court noted that when it enacted CESA, the Legislature was aware of the broader federal definition of incidental take contained in FESA and intentionally departed from it.   The Moreno Valley decision rests on the following reasoning:  “As noted above, the Legislature followed FESA in many respects when it enacted CESA.   In particular, the stated policies underlying the two statutes are virtually identical.  (Compare sections 2051 and 2052 with 16 United States Code section 1531.)   Yet, the California Legislature did not incorporate into CESA the preexisting federal permit process allowing take incidental to development and other lawful activities.  ‘The omission of a provision contained in a foreign statute providing the model for action by the Legislature is a strong indication that the Legislature did not intend to import such provision into state statute.  [Citation.]’  (J.R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union (1989) 208 Cal.App.3d 430, 442, 256 Cal.Rptr. 246.)”  (Id. at p. 604, 51 Cal.Rptr.2d 897.)   We find the closing sentence of this passage particularly persuasive:  “Here, the fact that the federal incidental taking permit process existed before the drafting and passage of CESA convinces us that the Legislature deliberately chose not to adopt that provision into the state statute.   Courts may not rewrite statutes to make express an intention not expressed in the statute itself.”  (Ibid. italics added.)

The Moreno Valley court believed use of the term “management purposes” in section 2081 referred instead to “scientific resources management,” which CESA defines as “research, census, law enforcement, habitat acquisition, restoration and maintenance, propagation, live trapping, and transplantation, and in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include taking.”  (§ 2061.)   In short, Moreno Valley limited the Department's management take authorization under section 2081 to those projects which contribute to the long-term conservation, protection, restoration, and enhancement of species.

Although the Department claims Moreno Valley was wrongly decided, we find no reason to depart from its basic reasoning or to attempt to distinguish that case from the one before us.   Although Moreno Valley dealt with private development and the instant case deals with public and private response to emergency and natural disasters, both present the question whether any permit authorizing an incidental take in connection with a project having nothing to do with species conservation is authorized under the “management purposes” clause of section 2081.   The Moreno Valley court clearly believed the issuance of section 2081 permits was incompatible with the Department's management take authority as defined by the Legislature and should be declared void.   We agree.

As explained in Moreno Valley, the structure and legislative history of CESA confirm that the Legislature did not intend to incorporate the federal provisions of FESA allowing for the issuance of an incidental take permit for any lawful private activity.   In this regard, we point out something not squarely addressed in Moreno Valley that we nevertheless believe to be important.   In enacting CESA, the Legislature expressly included the term “incidental take” in another, entirely separate provision of CESA, while excluding it from section 2081.

Section 2091 expressly allows the Department to authorize an incidental taking for projects that have some governmental involvement as opposed to purely private activities.   Section 2091 states as follows:  “If a taking incidental to the [state lead agency] project is found, the department shall determine and specify to the state lead agency reasonable and prudent measures that are necessary and appropriate to minimize the adverse impacts of the incidental taking.   Any taking that is in compliance with the alternatives or measures specified under this subdivision is not prohibited by this chapter.”  (Italics added.)   Therefore, when the Legislature has sought to grant incidental take authority to the Department, it has used clear language to do so.   The Legislature's failure to use the words “incidental take” or “incidental taking” in section 2081, while at the same time expressly including them in section 2091, argues against the grant of such authority by implication.  (Pasadena Police Officers Assn. v. Pasadena (1990) 51 Cal.3d 564, 576, 273 Cal.Rptr. 584, 797 P.2d 608.)

Administrative Interpretation

 The Department argues its long-standing administrative construction of section 2081 is entitled to the presumption of Legislative approval because the Legislature has never sought to amend section 2081 to defeat the Department's interpretation of the scope of its authority.  (moore v. california statE bd. of accountancy (1992) 2 cal.4th 999, 1017-1019, 9 Cal.Rptr.2d 358, 831 P.2d 798.)   However, as this court recently pointed out, any purported expression of “legislative intent” from legislative silence is not binding and merely one factor for a court to consider.  (Environmental Protection Information Center v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1011, 1024-1025, fn. 6, 50 Cal.Rptr.2d 892.)   We believe this case illustrates the importance of that rule, because here the deductions that may be derived from legislative silence are conflicting.

In showing that its construction of section 2081 was brought to the attention of the Legislature, the Department directs our attention to numerous documents setting out its administrative practice of issuing section 2081 permits for a broad spectrum of private activities.   However, the few documents which speak to the statutory basis for the Department's authority to issue such permits seem to acknowledge the Department's administrative interpretation of section 2081 actually altered or enlarged its terms.6  Furthermore, while it is true the Legislature has failed to amend section 2081 to defeat the Department's administrative construction, the Legislature has likewise failed to enact measures which would expressly endorse the Department's administrative construction.   As early as the 1993-1994 legislative session, bills were introduced that would expressly grant the Department authority to issue permits authorizing takes incident to, but not the purpose of, otherwise lawful activities.  (See e.g., Assem. Bill No. 2194 (1993-1994 Reg. Sess.) March 5, 1993; Sen. Bill No. 1549 (1993-1994 Reg. Sess.) as amended April 5, 1994.)   None of these bills were enacted.   Accordingly, in this case, we decline to equate legislative inaction with legislative approval.

 The Department also relies on legislation passed years after section 2081 was adopted which purportedly clarifies the Legislature's prior intent in granting the Department “management take” authorization in section 2081.  (See §§ 2081.5;  2825, subd. (c).)  We have reviewed these statutes and find they address specific problems by bestowing authority to the Department to issue section 2081 permits in narrowly defined situations.7  Frankly, we are reluctant to seize on the language and legislative history of these statutes to read into section 2081 what simply is not there.   In construing a statute “[a]n intention to legislate by implication is not to be presumed․   Nor are we permitted to rewrite the statute to conform to an assumed intent that does not appear from its plain language.”  (Home Depot, U.S.A., Inc. v. Contractors' State License Bd. (1996) 41 Cal.App.4th 1592, 1602, 49 Cal.Rptr.2d 302.)   Viewed another way, these statutes actually cut against the Department's arguments.   If the Legislature in passing section 2081 had intended to authorize the Department to autonomously make decisions with regard to incidental takes, sections 2081.5 and 2825, subdivision (c), would be wholly unnecessary because the Department could simply issue the permits itself without specific statutory authorization.

We also find it noteworthy that on several occasions since Moreno Valley was decided, bills were presented to the California Legislature which would have amended section 2081 to give the Department the authority they insist in this appeal they already have.   Assembly Bill No. 3151, as amended May 21, 1996, proposed adding lauguage to section 2081 permitting “persons” and “public agencies” to “take, or possess any endangered species or threatened species incidental to otherwise lawful activities, or for scientific educational, or management purposes.”   Senate Bill No. 1177, as introduced on February 24, 1995, proposed adding section 2081.4 to the Fish and Game Code allowing the Department to issue permits “to public entities and private persons” if “[t]he proposed take is incidental to an otherwise lawful activity or project.”   Each Committee Report analyzed Moreno Valley and noted that the court's opinion had called into question the legality of numerous transactions entered into in reliance on the Department's long-standing administrative interpretation of section 2081.  (Sen. Com. on Natural Resources & Wildlife, Analysis on A.B. 3151 (1995-1996 Reg. Sess.) as amended May 21, 1996; Assem. Com. on Natural Resources of Sen. Bill No. 1177 (1995-1996 Reg. Session) as amended May 26, 1995.)

If the Moreno Valley court had misconstrued the purpose of section 2081, the Legislature had a perfect opportunity during the 1995-1996 session to correct matters.   That the legislative session ended with section 2081's language intact may be taken as some indication of legislative approval.  (See, e.g., Terry York Imports, Inc. v. Department of Motor Vehicles (1987) 197 Cal.App.3d 307, 317, 242 Cal.Rptr. 790;  Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 818, 114 Cal.Rptr. 577.  [Legislature's consideration and failure to enact at least five proposals to delay enforcement of pollution control program prohibited administrative agency from acting “in the Legislature's stead” by administratively delaying enforcement].)

As has been discussed, the difficulty with the Department's arguments is that they either fail to address or satisfactorily account for the language of section 2081.  Section 2081 authorizes the Department to issue permits or enter into memoranda of understanding authorizing “individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import, export, take or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes.”  (Italics added.)   What perhaps is most striking about section 2081 is a complete absence of language granting the broad incidental take authority the Department claims it has been given.

 “If the language of a statute is plain with respect to a claimed application, which is to say unambiguous in that context, the courts have a duty to so apply it.   This does not rule out extrinsic indications of meaning, but it does place the statutory text at the center of the inquiry.   In simple terms, the statutory language must always be accounted for.”  (California Trout, Inc. v. State Water Resources Control Board (1989) 207 Cal.App.3d 585, 599, fn. 3, 255 Cal.Rptr. 184.)


In sum, the Department cannot escape the absence of an explicit exemption from CESA's take prohibition for emergency activities.   Such an exemption cannot be judicially created out of the “management purposes” language of section 2081, as the Department would have us do.   The Department's arguments are directed to the wrong branch of government-if it wishes an emergency exemption to be added to CESA, it should address the request to the Legislature.

The Legislature has repeatedly shown itself to be perfectly capable of exempting emergency activities from various environmental requirements.   Significantly, CESA itself was recently amended to grant an exemption from section 2090's permitting requirements for “[i]mmediate emergency work” to certain public service facilities and roadways.  (Section 2090, subdivision (c), added by Stats. 1996, ch. 825, § 4.)   At least two other statewide environmental statutes have emergency exemptions.  (See Pub. Resources Code section 21080, subd. (b)(2)-(4) (CEQA) and Public Resources Code section 3061 (California Coastal Act).)   Indeed, under Government Code section 8571, the Governor has broad authorization “to suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency․ where the Governor determines and declares that strict compliance with any statute, order, rule or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.”8

This legislation illustrates that defining the delicate balance between environmental concerns and the need to promptly and effectively respond to an emergency is most effectively addressed, not by an administrative agency acting unilaterally, but by subjecting all viewpoints to the legislative process.   If, as the Department repeatedly argues, the inability to issue the EMM permit would deprive the agency of an effective means to redress the “gaps” and “anomalies” in existing legislation, it is for the Legislature rather than the judicial branch to provide an appropriate remedy.”

The judgment is affirmed.


1.   Petitioners are The Planning and Conservation League, Natural Resources Defense Council, Sierra Club, National Audubon Society, Monterey Peninsula Audubon Society, Golden Gate Audubon Society, California Association of Professional Scientists, California Trout, Mountain Lion Foundation, California Native Plant Society, Environmental Protection Information Center, and Friends of the Swainson's Hawk.

2.   All undesignated statutory references are to the Fish and Game Code.

3.   The Fish and Game Code defines “person” as “any natural person or any partnership, corporation, limited liability company, trust, or other type of association.”  (§ 67.)

4.   “Take” is defined in the Fish and Game Code as “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.”  (§ 86.)

5.   The federal regulations define “incidental take” as “takings that result from, but are not the purpose of, carrying out an otherwise lawful activity.”  (50 C.F.R. § 402.02.)

6.   The Department principally relies on a letter to Assemblyman Robert Campbell from Boyd Gibbons, the former director of the Department, dated April 27, 1993.   The letter describes the statutory basis for the Department's “incidental take” authority as follows:  “CESA only authorizes the DFG to allow ‘incidental take’ to State lead agencies in biological opinions.   Section 2080 prohibits all persons from ‘taking’ listed threatened and endangered species.   Without an authorization to take a listed species, no development within endangered species habitat could proceed without the risk of violating CESA.”“The only provisions of CESA that allow the DFG to issue memoranda of understanding or permits for categories of ‘take’ are listed under section 2081.   These include take for scientific, educational, or management purposes.   The DFG, in administering the authorized take for management purposes, developed a process that functions as an incidental take permit.   If a project sponsor develops a DFG-approved species management plan that results in a net benefit to the species, the sponsor may obtain a management take permit from the DFG.”  (Italics added.)Similarly, in a question-and-answer document issued by the Department entitled “Endangered Species Management Authorization Fish and Game Code section 2081,” the Department set out the question, “What is incidental take and when is it authorized?”   The Department provided the following answer:  “Incidental take is authorized under CESA Biological Opinions issued to state lead agencies for projects they authorize.   Under Section 2081 there is no provision allowing DFG to authorize incidental take for projects.   Without the ability of DFG to approve incidental take, all private projects within endangered species habitat would be in violation of the CESA.   DFG has developed a program by which management take is allowed in the place of incidental take for projects, provided the sponsors incorporate into their projects measures which benefit the species.   Thus, a management take authorization is now used as a functional equivalent to an incidental take authorization as long as a biologically sound and implementable plan is developed.  (Italics added.)

7.   Section 2081.5 is special interest legislation sponsored by the California Mining Association which generally exempts mine operators from prohibitions against the incidental take of plants when engaged in lawfully permitted mining activities.   Section 2081.5 provides if any plant species exists on a surface mining operator's property and is newly discovered or newly listed after the date on which the section 2081 permit is issued, the Department “must develop and finalize” a memorandum of understanding under section 2081 “for the protection of the newly added or newly discovered plant species as expeditiously as possible.”  (§ 2081.5, subd. (b).)  Existing state law also permits a state, local, or federal agency to independently or cooperatively engage in a Natural Community Conservation Plans (NCCP).   Such a plan identifies and provides for regional or areawide protection of natural wildlife diversity, while allowing compatible and appropriate development and growth.  (§ 2805, subd. (a).)  Section 2825, subdivision (c), provides “Natural community conservation plans, as appropriate, shall be implemented pursuant to Section 2081.”

8.   The Department originally relied on the Governor's power to suspend any regulatory law during a state of emergency under Government Code section 8571 as authority for issuing the EMM permit.   However, it later changed its position and stated unequivocally in the court below “[t]he primary authority for the EMM permit is Fish and Game Code section 2081, not the Emergency Services Act.”

KLINE, Presiding Justice.

HAERLE and LAMBDEN, JJ. concur.