The Distinct Population Segment Provision of the Endangered Species Act and the Lack Thereof in the California Endangered Species Act

Abstract

This article offers a comparison of the federal Endangered Species Act and the California Endangered Species Act with respect to the listing of distinct population segments (DPSs) of species. Whereas the federal Endangered Species Act was amended in 1978 to specifically allow for the listing of DPSs, the California Endangered Species Act is silent on its ability to list DPSs. Using a recent California Court of Appeal case as its backdrop, this article comes to two important conclusions regarding the authority to list DPSs under the California Endangered Species Act. First, using common canons of statutory interpretation, the plain meaning of California Act does not authorize the listing of DPSs. Second, in light of the parallel experience under the federal Endangered Species Act, the California Act cannot be read to authorize the listing of DPSs. These two conclusions seriously undercut the Court of Appeal's analysis, and demonstrate convincingly that the California Endangered Species Act does not allow for the listing of DPSs.

Keywords: Endangered Species Act, California Endangered Species Act, Distinct Population Segment, ESA CESA, DPS, Salmon