Planning & Conservation v. Department of Fish and Game

PLANNING & CONSERVATION LEAGUE et al., Respondents v. DEPARTMENT OF FISH & GAME, Appellants C.A. 1st, No. A074048 S061521 California Supreme Court Filed June 18, 1997         Petition for review GRANTED.
        Application for stay denied. (See rule 25(a), California Rules of Court.)




[Editor's Note: For your convenience we reprint below the Daily Journal's Ruling column brief which summarized the earlier decision of the lower court.]


ENVIRONMENTAL LAW
State Permit Allowing Killing Or Capturing of Protected Species Is Invalid Under Endangered Species Act.

        The C.A. 1st has determined that the state's issuance of a permit allowing the killing or capturing of otherwise protected California species in an emergency or to restore property was inconsistent with the authority granted to the state under the California Endangered Species Act and was therefore invalid.
        After the 1995 New Year, severe winter rainstorms inundated California. The governor proclaimed states of emergency in counties that experienced major flooding. On March 17, 1995, the Department of Fish and Game issued the Endangered Species Act Permit for Emergency Management Measures (the permit), which authorized the taking of threatened or endangered species for management purposes when necessary in emergency circumstances. The Planning and Conservation League, along with other environmental and nature groups (the League), filed a petition for writ of mandate challenging the Department's authority to issue the permit. The League argued, among other things, that the permit violated the California Endangered Species Act (CESA) which did not contain a general exemption for emergency activities. The trial court granted the writ and invalidated the permit after determining that CESA did not authorize issuance of the permit.
        The C.A. 1st affirmed. The fundamental purpose of the CESA is to conserve, protect, restore and enhance protected species and the habitats upon which they depend for survival. CESA prohibits any person from taking, possessing, purchasing or selling any protected species. The Department claimed its permit was authorized under Fish and Game Code Section 2081, which permits the Department to allow the taking of any endangered species for scientific, education, or management purposes. The League argued that the permit authorized destruction of protected species without any management purpose, which was adverse to CESA's fundamental goal. Use of the term "management purposes" in Section 2081 refers to scientific resources management and does not expressly provide for incidental takes in connection with land development or other private, lawful activities. Section 2081 limits the Department's management take authorization to those projects which contribute to the long-term conservation, protection, restoration and enhancement of species. The Department's issuance of the permit was incompatible with Section 2081 and was declared void. The Department could not escape the absence of an explicit exemption from CESA's take prohibition for emergency activities, nor can an exemption be judicially created out of the "management purposes" language of Section 2081.
        Planning & Conservation League v. Dept. of Fish & Game, C.A. 1st, No. A074048, filed April 10, 1997, by Kline, J.
        The full text of this case appears in 97 Daily Journal DAR on page 4725, April 14, 1997.




1 Daily Appellate Report