California Endangered Species Act: Prohibitions, Penalties, and Permits

The California Endangered Species Act (CESA) makes it a crime to import, export, take, possess, purchase, or sell any species the state has listed as endangered or threatened, or any part or product of one. Core violations carry fines between $25,000 and $50,000, up to a year in county jail, or both.¹ The law runs parallel to the federal Endangered Species Act but is not identical, and understanding where they diverge matters for anyone whose property, project, or activity could affect a listed species.

What CESA Prohibits

Section 2080 of the Fish and Game Code is the operative prohibition. No person and no public agency may import, export, take, possess, purchase, or sell any species listed by the California Fish and Game Commission as endangered or threatened, including any part or product of that species.² Killing an animal is not required. Possession alone, or offering a product made from a listed species for sale, is enough to trigger liability.

“Take” has a specific statutory meaning. Under Section 86, it means to hunt, pursue, catch, capture, or kill a species, or to attempt any of those acts.³ That is narrower than the federal definition, which also reaches harassment and habitat modification that injures wildlife by disrupting essential behaviors. California has no equivalent to the federal “harm” concept.⁴ Habitat destruction alone is therefore harder to prosecute as a take under state law unless it directly causes the killing or capture of individual animals. CDFW often addresses that gap through conditions in the incidental take permitting process rather than through direct enforcement.

Penalties for CESA Violations

CESA violations are criminal offenses, and the penalty structure has two tiers.

Violating the Section 2080 prohibition, or the parallel prohibition covering fully protected species under Section 2085, triggers the enhanced penalty in Section 12008.1: a fine of no less than $25,000 and no more than $50,000, up to a year in county jail, or both.¹ The $25,000 floor is mandatory. It exists so noncompliance is not treated as an acceptable line item in a project budget.

Other CESA violations, such as failing to comply with permit conditions or procedural requirements elsewhere in Chapter 1.5, fall under Section 12008: a fine of up to $5,000, up to a year in county jail, or both.⁵ Each act of take or possession can be charged as a separate violation, so exposure grows quickly in cases involving multiple animals or repeated conduct. A court can also order habitat restoration or other remedial measures on top of the criminal penalty.

How Species Get Listed and When Protection Starts

A listing begins with a petition to the California Fish and Game Commission, not to CDFW. Anyone can file one, but the petition must include scientific information on population trends, range, habitat needs, and the degree and immediacy of threats.⁶ CDFW then produces a petition evaluation report recommending whether the science supports moving forward.⁷

If the Commission accepts the petition, the species immediately becomes a “candidate species” and receives the same legal protections as a fully listed species for the duration of the review.⁴ That matters practically: liability under Section 2080 attaches on the day of acceptance, not at the end of the process. CDFW then has 12 months to produce a peer-reviewed status report, with a possible six-month extension, before the Commission holds a public hearing and votes on whether to list.⁶

A species is “endangered” when it is in serious danger of becoming extinct throughout all or a significant portion of its range.⁸ “Threatened” means likely to become endangered in the foreseeable future without intervention. The Commission can downlist or delist a species as science evolves.

Where CESA Differs from the Federal ESA

Both laws can apply to the same species and the same project. Satisfying one does not automatically satisfy the other. The main divergences:

Federal “take” includes harassment and habitat harm. California’s does not.⁴
The federal ESA requires designation of critical habitat and interagency consultation to avoid destroying or adversely modifying it. CESA had a similar provision, but it was repealed effective January 1, 1999.⁴
CESA protects candidate species during review. The federal ESA gives candidate species no legal protection.⁴
CESA covers native birds, mammals, fish, amphibians, reptiles, and plants. The federal ESA reaches any species of fish, wildlife, or plant, including invertebrates and in some cases non-native species.
Both offer incidental take permits, but the state process has its own criteria and its own application track.

Incidental Take Permits

If a project will cause the take of a listed species as an unintended consequence of otherwise lawful activity, CDFW can issue an incidental take permit under Section 2081. Construction, utility, and transportation projects are the most common applicants.⁹ Proceeding without a required permit exposes the project to the enhanced criminal penalties in Section 12008.1.

CDFW can issue a permit only when four conditions are met:¹⁰

The take is incidental to an otherwise lawful activity, not the purpose of it.
Impacts are minimized as much as feasible and fully mitigated, with measures roughly proportional to the impact and capable of successful implementation.
Funding is adequate to carry out mitigation and monitoring for the life of the permit.
The permit will not jeopardize the continued existence of the species.

Applications go to the CDFW regional office covering the project location and must describe the activity, the species and habitat affected, minimization and mitigation measures, a monitoring plan, and the funding source.⁹

Consistency Determinations for Federally Permitted Projects

A project that already holds federal incidental take authorization, whether through a biological opinion under Section 7 or an incidental take permit under Section 10, may not need a separate CESA permit. Under Fish and Game Code Section 2080.1, the applicant can submit the federal authorization to CDFW’s director, who has 30 days to determine whether it is consistent with CESA.¹¹ A consistency finding covers the project under CESA. An inconsistency finding, or no action within the window, sends the applicant back to the standard state permit process. The pathway works only when federal protections align closely enough with CESA’s requirements.

Safe Harbor Agreements for Landowners

Landowners sometimes hesitate to improve habitat because doing so might attract listed species and bring new restrictions. California’s Safe Harbor Agreement Program, starting at Fish and Game Code Section 2089.2, is designed to remove that disincentive.¹²

A landowner voluntarily commits to management actions that benefit a listed species. CDFW documents the “baseline conditions” on the property, meaning existing population and habitat quality. If the landowner later chooses to exit the program, they can return the property to those baseline conditions without enforcement for take that occurs during the return. The agreement cannot reduce populations below the baseline.

CDFW can approve an agreement only when the plan is reasonably expected to provide a net conservation benefit to the covered species, the take will not jeopardize the species, the landowner agrees to avoid and minimize incidental take to the greatest extent practicable, and monitoring uses objective scientific methods.¹² Programmatic agreements can cover multiple landowners under one framework.

Fully Protected Species Are a Separate Category

California maintains a separate list of “fully protected” species that predates CESA. Fully protected mammals, for example, include the Morro Bay kangaroo rat, bighorn sheep (except Nelson bighorn sheep), northern elephant seal, Guadalupe fur seal, southern sea otter, and wolverine, among others.¹³ Parallel lists cover birds, reptiles and amphibians, and fish in other code sections.

Fully protected species generally cannot be taken or possessed at all, and no provision of the Fish and Game Code authorizes a standard incidental take permit for them.¹³ Narrow exceptions exist, including take authorized under a Natural Community Conservation Plan, but the standard Section 2081 permit pathway is not available. A project touching a fully protected species faces a more restrictive route than one involving a species that is “only” endangered or threatened, and violations still carry the Section 12008.1 penalty of $25,000 to $50,000.

1
California Legislative Information. California Code, Fish and Game Code FGC 12008.1
2
California Legislative Information. California Code FGC Division 3 Chapter 1.5 Article 3 Section 2080
3
California Legislative Information. California Code FGC Division 0.5 Chapter 1 Section 86
4
California Department of Fish and Wildlife. Compare CESA to the Federal Endangered Species Act
5
California Legislative Information. California Code FGC Division 9 Chapter 1 Section 12008
6
California Fish and Game Commission. Petitions to List Species Under the California Endangered Species Act
7
California Department of Fish and Wildlife. California Endangered Species Act Listing Process
8
California Legislative Information. California Code FGC Division 3 Chapter 1.5 Article 1 Section 2062
9
California Department of Fish and Wildlife. Incidental Take Permits
10
California Legislative Information. California Code, Fish and Game Code FGC 2081
11
California Legislative Information. California Code, Fish and Game Code FGC 2080.1
12
California Legislative Information. California Fish and Game Code Article 3.7 California State Safe Harbor Agreement Program Act
13
California Legislative Information. California Code, Fish and Game Code FGC 4700