TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

______________________________________

OPINION : : No. 98-105 of :

: June 23, 1998 DANIEL E. LUNGREN : Attorney General :

: ANTHONY M. SUMMERS :

Deputy Attorney General :

:

______________________________________________________________________
THE HONORABLE KEITH OLBERG, MEMBER OF THE CALIFORNIA ASSEMBLY, has requested an opinion on the following questions:

1. Are insects eligible for listing as a th reatened or endangered species under the California Endangered Species Act?

2. Under what circumstances may a landowner destroy a plant on his property that is listed as threatened or endangered under the California Endangered Species Act?

3. If a landowner has not been notified by the Department of Fish and Game under the Native Plant Protection Act of the presence of a rare or endangered native plant, is the landowner required to provide notice to the department of hi s intent to destroy such a plant when carrying out an authorized agricultural operation, mana gement practice, or fire control activity?

4. Is a biologist or other scientist requ ired to have a permit under the California Endangered Species Act to conduct a survey for th e presence or absence of any listed plant or animal species if the survey activities do not in volve the trapping, catchi ng, capturing, or killing of such species?

CONCLUSION

1. Insects are ineligible for listing as a threatened or endangered species under the California Endangered Species Act.2. A landowner may destroy a plant on his pr operty that is listed as threatened or endangered under the California Endangered Specie s Act when (1) federal approval has been given, (2) approval by the Departme nt of Fish and Game has been given, (3) incidental to a properly permitted surface mining operation, (4) in cidental to routine and ongoing agricultural activities that occur while specified management practices are followed, (5) due to inadvertent or ordinarily negligent acts during lawful, r outine, and ongoing agricu ltural operations, (6) incidental to state agency proj ects under findings of the Department of Fish and Game, (7) incidental to specified emergenc y projects, or (8) incidental to certain agricultural operations, timber operations, mining assessment work, and th e clearing of specified property under the Native Plant Protection Act.

3. If a landowner has not been notified by the Department of Fish and Game under the Native Plant Protection Act of the presence of a rare or endangered native plant, the landowner is not required to provide notice to the department of his intent to destroy such a plant when carrying out an authorized agricu ltural operation, management practi ce, or fire control activity.

4. A biologist or other scientist is not re quired to have a permit under the California Endangered Species Act to conduct a survey for th e presence or absence of any listed plant or animal species if the survey activities do not involve the trapping, catch ing, capturing, possessing or killing of such species.

ANALYSIS

The four questions presented for resolution concern two related statutory schemes: the California Endangered Species Act (Fish & G. Code, §§ 2050-2116; "CESA") Footnote No. 1 and the Native Plant Protection Act (§§ 1900-1913; "N PPA"). CESA has a legi slative history dating back to 1970 (Stats. 1970, ch. 1510, § 3). In its 1 970 form, it did not cover plants, only rare and endangered animals. Footnote No. 2 NPPA, on the other hand, was enacted in 1977 (Stats. 1977, ch. 1181, § 8), and its focus has always been the pr otection of endangered and rare native plants.

In analyzing these legislative acts, we appl y well established prin ciples of statutory construction. We are to "'ascertain the intent of th e Legislature so as to effectuate the purpose of the law.' [Citation.]" ( California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632.) In determining the Le gislature's intent, we first "scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations.]" ( People

v. Valladoli (1996) 13 Cal.4th 590, 597.) "In analyzing statutory language, we seek to give meaning to every word and phrase in the statut e to accomplish a result consistent with the legislative purpose . . . ." ( Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159.)

Here, the two statutory schemes obviously have overlapping provisions and are in fact connected by reference (§ 2080). Accordingly, we apply the rule that "[s]tatutes or statutory sections relating to the same subject must be ha rmonized, both internally a nd with each other, to the extent possible." ( Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387; see DeVita v. County of Napa (1995) 9 Cal.4th 763, 778.) With this background in mind, we turn to the four questions submitted for resolution.1. Insects as Endangered Species

The first question to be examined is whether inse cts are eligible for lis ting as a threatened or endangered species under CESA. We conc lude that they are not eligible.

CESA is concerned with the conservation, protection, restoration and enhancement of endangered and threatened species and their habitats. (§ 2052.) The definitions of covered "species" are contained in three statutes. Secti on 2062 provides:

"'Endangered species' means a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant whic h is in serious danger of beco ming extinct throughout all, or a significant portion, of its range due to one or more causes, includi ng loss of habitat, change in habitat, overexploitation, predation, competition, or disease. Any species determined by the commission as 'endangered' on or before January 1, 1985, is an 'endangered species.'" Footnote No. 3

Section 2067 states:

"'Threatened species' means a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant that, although not pres ently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts required by this chapter. Any animal determined by the commission as 'rare' on or before January 1, 1985, is a 'threatened species.'"

Section 2068 provides:

"'Candidate species' means a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant th at the commission has formally noticed as being under review by the department for addition to either the list of endangered species or th e list of threatened species, or a species for which the commission ha s published a notice of proposed regulation to add the species to either list." Footnote No. 4

These definitions limit the application of CESA to birds, mammals, fish, amphibians, reptiles, and plants. Insects do not fall within any of these categories. In zoological terms, insects comprise the Insecta class of the phylum Arth ropoda. (Webster's Third New Internat. Dict. (1971) p. 1168.) Since they are not within the gov erning definitions contained in CESA, insects are not eligible for listing as threaten ed or endangered species thereunder. Footnote No. 5 While the last sentence of section 2062 and of secti on 2067 "grandfather" cert ain designations made prior to 1985, no insects were so designated. Ther efore, we need not inquire whether insects were eligible for lis ting prior to 1985.

We conclude that insects are ineligible for listing as a threatened or endangered species under CESA.

2. Destroying Endangered or Threatened PlantsThe second question to be addressed concerns the circumstances under which a landowner may destroy a plant on his propert y that is listed as threatened or endangered under CESA. We conclude that such a plant may be destroyed in a variety of specified circumstances.

CESA provides for the establishment of lists of threatened and endange red species. (§ 2070; Cal. Code Regs, tit. 14, § 670.2.) Section 2080 provides:

"No person shall import into this state, export out of this state, or take, possess, purchase, or sell within this state, any species, or any part or product thereof, that the commission determines to be an endangered species or a threatened spec ies, or attempt any of those acts, except as otherwise provided in this chapter, the Nativ e Plant Protection Act (Chapter 10 (commencing with Section 1900) of this code), or the Calif ornia Desert Native Pl ants Act (Division 23 (commencing with Section 80001) of th e Food and Agricultural Code))."

With reference to plants, the term "take" as usedin section 2080 means to destroy. (§ 96 ["'Take' means . . . kill . . ."]; see Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554; 78 Ops.Cal.Atty.Gen. 137 (1995).) Accordingly, a plant listed under CESA may only be destroyed as authorized by CESA or NPPA. Footnote No. 6

CESA authorizes the destruction of a plant in a number of circumstances. Section 2080.1 provides:

"The department may authorize acts that ar e otherwise prohibited pursuant to Section 2080, as follows:

"(a) . . . if any person obtains from the Secr etary of the Interior or the Secretary of Commerce an incidental take statement pursuant to Section 1536 of Title 16 of the United States Code or an incidental take permit pursuant to Section 1539 of Title 16 of the United States Code that authorizes the taking of an endangered species or a threat ened species that is listed pursuant to Section 1533 of Title 16 of the United States Code and that is an endangered species, threatened species, or a candidate species pursuant to this chapter, no fu rther authorization or approval is necessary u nder this chapter for that person to take that endangered species, threatened species, or candidate species identified in, and in accord ance with, the incidental take statement or incidental take permit, if that person does both of the following:

"(1) Notifies the director in wr iting that the person has received an incidental take statement or an incidental take permit issued pursuant to the federal Endangere d Species Act of 1973 (16 U.S.C.A. Sec. 1531 et seq.).

"(2) Includes in the notice to the director a copy of the incidental take statement or incidental take permit.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." Footnote No. 7

Hence, under section 2080.1, a land owner may destroy a threatenedor endangered species listed under CESA if he has federal approval a nd follows the prescribed procedures.Subdivision (a) of section 2081 auth orizes the Department to a pprove the destruction of an endangered or threatened plant "f or scientific, educational, or management purposes." Similarly, authorization may be given where th e destruction is incidental to an otherwise lawful activity and the impact is minimized and fully mitigated and other conditions are met. (§ 2081, subds. (b) and (c).) The Legislature has also authorized the dest ruction of an endangered or threatened species pursuant to a Department permit, memorandum of understanding, plan, or similar agreement within a prescribed time frame. (§ 2081.1.)

Private entities, including landowners, may destroy a plant species listed under CESA incidental to a properly permitted surface mining operation. (§ 2081.5.) Plants listed under CESA may also be destroyed in connect ion with routine agricultural opera tions that occur pursuant to specified management practices. (§ 2086.) Moreover , an accidental destruction from inadvertent or ordinarily negligen t acts during the course of lawf ul routine and ongoing agricultural operations is not prohibited. (§ 2087.) A plant list ed under CESA may be de stroyed incidental to state agency projects under findings made by the Department(§ 2090, subds. (a), (c)) and incidental to specified emergency work necessary to protect life or property (§ 2090, subd. (c)).

As previously noted, a plant listed under CESA may be destroyed if such destruction is allowed under NPPA. (§ 2080.) NPPA has its own emergency provision (§ 1912) and allows destruction of a listed plant with respect to "a gricultural operations or management practices, including the clearing of land for agricultural pr actices or fire contro l measures" (§ 1913, subd. (a)) and "timber operations in accordance with a timber harvesting plan . . . or required mining assessment work pursuant to federal or state mini ng laws, or the removal of endangered or rare native plants from a canal, lateral ditch, building site, or road, or other right-of-way . . ." (§ 1913, subd. (b)). Footnote No. 8

We thus conclude in answer to the second que stion that a landowner may destroy a plant on his property that is listed as threatened or endanger ed under CESA when (1) federal approval has been given, (2) approval by the Department has b een given, (3) incidental to a properly permitted surface mining operation, (4) incidental to routin e and ongoing agricultural activities that occur while specified management practices are followed, (5) due to inadvertent or ordinarily negligent acts during lawful, routine, and ongoing agricultural operations, (6) incidental to state agency projects under findings of the Department, (7) inci dental to specified emer gency projects, or (8) incidental to certain agricultural operations, timber operations, mining assessment work, and the clearing of certain property unde r the provisions of NPPA.

3. Obligation To Notify the Department

We next consider whether a landowner is require d to give notice of his intention to destroy a rare or endangered native plant in an activity authorized under NPPA (§ 1913, subds. (a), (b)) if he has not been previously notified by the De partment of the presence of the plant on his property. As indicated above , NPPA requires that:

". . . where the owner of land has been notif ied by the department pursuant to Section 1903.5 that a rare or endangered native plant is growing on such land, the owner shall notify thedepartment at least 10 days in advance of cha nging the land use to allo w for salvage of such plant." (§ 1913, subd. (c).) Footnote No. 9

We conclude that the landowner has no obligation to notify the Department if the Department has not first notified him of the presence of a rare or endangered native plant.

A landowner may destroy a rare or endange red native plant pursuant to NPPA under specified conditions. (§ 1913, subds. (a ), (b).) This author ization carries over to CESA for plants listed as threatened or endangered under the latter statutory scheme. (§ 2080.) The only limitation is a 10-day delay period to salvage th e plant if the Department has provided the landowner with the appropriate notice. (§ 1913, subd. (c).) The st atute does not require the landowner to provide notice in the first instance, and no sanction is authorized when the plant is destroyed in the specif ied circumstances without the Depart ment's prior notification to the landowner.

We conclude that a landowner is not require d to provide notice to the Department under section 1913, subdivision (c), unless the landowne r has been notified by the Department of the presence of a rare or endangered na tive plant on the landowner's property.

4. Permit For Biology Surveys

The final question we address is whether a biolog ist or other scientist is required to have a permit pursuant to CESA to conduct a survey for the presence or absenc e of a listed plant or animal species if the survey act ivities will not involve the trapping, catching, capturing, or killing of any species. We conclude that a permit is unnecessary in such circumstances.

Section 2081 provides:

"The department may authorize acts that ar e otherwise prohibited pursuant to Section 2080, as follows:

"(a) Through permits or memorandums of understanding, the department may authorize individuals, public agencies, uni versities, zoological gardens, and scientific or educational institutions, to import, export, take, or possess any endangered species, threatened species, or candidate species for scientific, educ ational, or management purposes.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

Section 2080, as quoted above, prohib its the "import into th is state, export out of this state, or take, possess, or sell within this state, [of] any species . . . ."

No permit is necessary under subdi vision (a) of section 2081 for a sc ientific survey that does not violate the prohibition of section 2080. Since the sc ientific survey in que stion will not involve the trapping, catching, capturing, or killing of any species, no pe rmit is necessary under CESA.We conclude in answer to the fourth questi on that a biologist or other scientist is not required to have a permit under CESA to conduct a survey for the presence or absence of any listed plant or animal species if the survey activities do not involve the trapping, catching, capturing, or killing of any species.

* * * * *

Footnote No. 1 Hereafter references to the Fish and Game Code will be by section number only. Footnote No. 2 As of January 1, 1985, a "rare" animal became a "threatened" speci es under CESA. (§ 2067.) Footnote No. 3 The "commission" is the Fish and Game Commission. (§ 30.) Footnote No. 4 The "department" is the Department of Fi sh and Game. (§ 37; "Department.") Footnote No. 5 By comparison, the Federal Endangered Species Act e xplicitly includes "any member of the animal kingdom, including, without limitation any . . . arthropod or other invertebrate . . . ." (16 U.S.C. § 1532(8).) Footnote No. 6 Plants falling within the purview of the California Desert Native Plants Act are beyond the scope of this opinion. Footnote No. 7 The "director" is the Director of Fish and Game. (§ 39.) Footnote No. 8 As will be discussed below, if the owner of the land has be en notified by the Department "that a rare or endangered native plant is growing on such land, the owner shall notify the department at least 10 days in advance of changing the land use to allow salvage of su ch plant." (§ 1913, subd. (c).) Footnote No. 9 The Department's notification of landowners is specified in section 1904, not section 1903.5.