ANDERSON-COTTONWOOD

Plaintiff California Department of Fish and Game (the Department) appeals from the trial court’s denial of a preliminary injunction to prevent defendant Anderson-Cottonwood Irrigation District (ACID) from operating a pump diversion facility on the Sacramento River in a manner that results in the killing of an endangered species, the winter-run chinook salmon (Oncorhynchus Tshawytscha). The principal issue on appeal is whether the California Endangered Species Act (CESA) (Fish & G. Code, § 2050 et seq. ), and specifically section 2080, protects endangered species against destruction incidental to lawful activity or whether the act prohibits only hunting- or fishing-related activity. We will conclude that section 2080’s proscription against “taking” or “possessing” endangered species is not limited to hunting or fishing but includes the killing of fish resulting from lawful irrigation activity. We will therefore reverse the judgment (order).

Factual and Procedural Background

The facts, as found by the trial court and uncontested by the parties, are as follows:

In September 1991, the Department filed a complaint for injunction and temporary restraining order to enjoin…