Opinion
SIMS, J.
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:
“1. [ACID] has operated pursuant to the authority in Division 11 of the California Water Code since the early 1920’s, providing, acquiring, transporting, and distributing irrigation water to its customers.
“2. [ACID] draws water from the Sacramento River in Shasta County at various points, including a diversion works, known as the Bonneyview Pump Diversion Facility, which, through the use of several pumps, draws water out of the Sacramento River and places it into an irrigation conveyance canal system of approximately 2 1/2 or 3 miles in length, commonly known as ‘Lateral 3’. . . . [T]he water drawn from the river by this facility is delivered to some 270 agricultural landowners for irrigation purposes during certain months of the year, generally beginning in the Spring and concluding in the Fall. Except for the addition or replacement of pumps several decades ago, the location and function of this diversion facility have been constant for the past half century.
“3. Winter-run chinook salmon, designated as an endangered species pursuant to the provisions of [CESA], utilize the habitat of the upper Sacramento River, including areas upstream of the Bonneyview Pump Diversion Facility, for spawning and development of young fish prior to downstream migration to the Pacific Ocean.* **[
]
“4. [The Department’s] studies and estimates of the population of annual returning adult fish reveal that in the last 25 years, the runs have plummeted from tens of thousands to only a few hundred. They have continued to drop rapidly in the past 3 years to what appear to be critically low levels.[
]
“5. Seaward migration for recently hatched and emerging “fry” chinook salmon begins in Summer and continues until the following early Spring with peak months being in August through October.
“6. During the operation of the Bonneyview Pump Diversion Facility, emergent and migrating winter-run chinook salmon fry are drawn into the pumps and thus either killed by the pump blades or passed through into the irrigation conveyance canals where they ultimately perish. The [Department] estimates that of the total annual population of winter-run chinook salmon emergent fry this year, between 1.23% and 2.45% have been entrained or drawn into the Bonneyview Pump Diversion Facility, as of late September.”
In September 1991, the Department filed a complaint for injunction and temporary restraining order to enjoin ACID’s diversion operation until it implemented measures to avoid the incidental taking of winter-run chinook salmon. According to the pleading, in 1990 the Department obtained funding for the construction of a protective fish screen on the Bonneyview pumps, but ACID refused to enter into an agreement with the Department for installation of the screen.
In October 1991, the trial court issued a temporary restraining order, restraining ACID from “operating or maintaining ACID’s Bonneyview Pumping Facility in such a manner that winter-run chinook salmon [] are taken in violation of the provisions of the Fish and Game Code. . . .”
Following a hearing, the trial court denied the Department’s application for a preliminary injunction and dissolved the temporary restraining order. The court’s decision was based on its conclusion that section 2080’s prohibition against “taking” and “possessing” endangered species pertains only to “hunting and fishing related activity.”
Discussion
I
An order denying a preliminary injunction is an appealable order. (Code Civ. Proc., § 904.1, subd. (f);
Abar
v.
Rogers
(1981) 124 Cal.App.3d 862, 864 [177 Cal.Rptr. 655].)
A determination to grant or deny a preliminary injunction requires the trial court to consider the likelihood that the plaintiff will prevail on the merits at
trial and to weigh the interim harm to the plaintiff if the injunction is denied against the harm to the defendant if the injunction is granted.
(King
v.
Meese
(1987) 43 Cal.3d 1217, 1226-1227 [240 Cal.Rptr. 829, 743 P.2d 889].) In such circumstance, the review on appeal is for abuse of discretion.
(Ibid.)
Here, however, the trial court did not make any determination regarding the relative harm to the parties in granting the injunction because the court decided, based on its interpretation of the statutes, that the Department could not prevail on the merits. This presents a question of law, which we review de novo.
(Sutco Construction Co.
v.
Modesto High School Dist.
(1989) 208 Cal.App.3d 1220, 1228 [256 Cal.Rptr. 671].)
“On review, a trial court’s order with regard to a preliminary injunction may be affirmed if either the balance-of-hardships analysis or plaintiffs’ likelihood of success considerations would alone support the ruling. [Citation.] However, if the trial court relies on but one of the foregoing, the reviewing court must determine whether that reliance conclusively supports the trial court’s determination regardless of the remaining considerations.”
(King
v.
Meese, supra,
43 Cal.3d at pp. 1227-1228.) We will conclude the trial court’s denial of a preliminary injunction is not supported by the court’s reliance on its erroneous determination that the Department could not prevail on the merits.
The Department asks us to resolve the case on the merits, on the principle that “in an appropriate case, as when there are no factual issues requiring resolution at trial and when the issues have been extensively briefed, the merits of the action may be determined on appeal from the preliminary injunction order.”
(Wilkinson
v.
Times Mirror Corp.
(1989) 215 Cal.App.3d 1034, 1040 [264 Cal.Rptr. 194], citing
King
v.
Meese, supra,
43 Cal.3d at p. 1228.) Since we will conclude the Department may prevail on the merits, remand would ordinarily be appropriate for the trial court to make a factual determination balancing the relative hardship to the parties. However, ACID agrees there is no factual dispute and also asks us to resolve the preliminary injunction on the merits. We will therefore do so, in the interest of judicial economy.
II
The Department contends the trial court erred in construing section 2080 (fn. 2,
ante)
as proscribing only hunting or fishing related activity. We agree with the Department that section 2080’s prohibition against “taking” or “possessing” endangered species applies to the killing of endangered species in the course of lawful activity such as ACID’s irrigation efforts.
ACID admits its pumps entrapped and killed the salmon but claims it “is not a hunter or a fisherman and does not have the requisite intent envisioned by [CESA].’’ ACID thus argues that subjecting it to the constraints of CESA would impose strict liability on agricultural diverters, contrary to the Legislature’s intent. We cannot agree.
“Our analysis starts from the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citation.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]”
(People
v.
Woodhead
(1987) 43 Cal.3d 1002, 1007-1008 [239 Cal.Rptr. 656, 741 P.2d 154].)
We begin by noting that section 2080 (fn. 2,
ante)
makes it unlawful to “possess” an endangered species. We do not see how, given its plain meaning, “possess” can be construed to mean only hunting and fishing activity. ACID does not deny that it acquired possession of the fish that were diverted by its pumps. Therefore, we conclude ACID’s possession was in itself sufficient to draw ACID into CESA’s net.
Section 2080 also makes it unlawful to “take” an endangered species. Section 86 provides: “ ‘Take’ means hunt, pursue, catch, capture, or
kill,
or attempt to hunt, pursue, catch, capture, or
kill.”
(Italics added.)
Section 86 therefore expressly provides that “take” means “kill.” Nothing in that definition suggests that the proscribed killing must be the result of hunting or fishing. The Department also points out that section 1908 provides that no person shall “take” rare or endangered native plants. We agree that since people do not hunt or fish for plants, “take” cannot be limited to hunting- and fishing-related activities.
In addition, there is support in the case law for a definition of “take” (in § 86) that is broader than hunting or fishing. In
Churchill
v.
Parnell
(1985) 170 Cal.App.3d 1094 [216 Cal.Rptr. 876], the court considered the authority of the Department to kill unwanted white bass by the repeated application of
the pesticide Rotenone to public waters. Citing, inter alia, section 86, the court concluded, “The Legislature . . . has delegated to [the Department] the power to determine when a particular species of fish is unduly preying upon any other species of fish and the further power to kill the predatory fish.”
{Id.
at p. 1098.) The court therefore necessarily determined that authority to “take” fish which are unduly preying on other fish (§ 5501) included authority to kill fish with the application of a pesticide. ACID argues that, in its application of pesticide, the Department was acting as a fisherman. Although we find the argument amusing, we cannot agree that the application of pesticide to the public waters constitutes “fishing.”
We find no indication in CESA or case law that section 2080 requires a specific intent to hunt or fish.
Moreover, we reject ACID’s proffered interpretation of the CESA because it would lead to absurd results in light of the clear policy statement of legislative purpose.
(Friends of Mammoth
v.
Board of Supervisors
(1972) 8 Cal.3d 247, 260 [104 Cal.Rptr. 761, 502 P.2d 1049] [statute should be broadly construed to effectuate legislative purpose].) Thus, section 2051 provides: “The Legislature hereby finds and declares all of the following:
“(a) Certain species of fish, wildlife, and plants have been rendered extinct as a consequence of man’s activities, untempered by adequate concern and conservation.
“(b) Other species of fish, wildlife, and plants are in danger of, or threatened with, extinction because their habitats are threatened with destruction, adverse modification, or severe curtailment, or because of overexploitation, disease, predation, or other factors.
“(c) These species of fish, wildlife, and plants are of ecological, educational, historical, recreational, esthetic, economic, and scientific value to the people of this state, and the conservation, protection, and enhancement of these species and their habitat is of statewide concern.”
Additionally, section 2052 provides: “The Legislature further finds and declares that it is the policy of the state to conserve, protect, restore, and enhance any endangered species or threatened species and its habitat and that it is the intent of the Legislature, consistent with conserving the species, to acquire lands for habitat for these species.”
Thus, CESA makes clear that its intent is to protect fish, not punish fishermen. It is inconceivable that a statutory scheme, the purpose of which
is to protect natural resources, should be construed to allow the wholesale killing of endangered species simply because the mode of death does not involve hunting or fishing.
Thus, we conclude section 2080 prohibits the killing of endangered species in the course of lawful activity.
III
ACID contends it is immunized from injunctive relief by section 2014. That statute grants the state the right to “recover damages in a civil action against any person or local agency which unlawfully or negligently takes or destroys any [living creature] protected by the laws of this state.”
(Id.,
subd. (a).) Subdivision (d) of section 2014 provides in pertinent part, “This section does not apply ... to the destruction of fish in irrigation canals or works or irrigation drainages . . . .”
Section 2014 grants an exception from
damages
liability in the circumstances described. It does not, by its plain terms, grant an exception from injunctive relief. Nor may we infer one. “ ‘Under the familiar rule of construction,
expressio unius est exclusio allerius,
where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.’ ”
(Mutual Life Ins. Co.
v.
City of Los Angeles
(1990) 50 Cal. 3d 402, 410 [267 Cal.Rptr. 589, 787 P.2d 996], quoting
Wildlife Alive
v.
Chickering
(1976) 18 Cal.3d 190, 195 [132 Cal.Rptr. 377, 553 P.2d 537].)
According to its plain terms, section 2014 does not immunize ACID from injunctive relief in the circumstances presented.
IV
ACID contends the Department cannot obtain injunctive relief because it has not made the requisite showing that there is no adequate remedy at law.
A party seeking injunctive relief must show the absence of an adequate remedy at law. (6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 253, p. 220.) Although the adequacy of a particular remedy is a question of fact for the trial court
(People
v.
Monterey Fish Products Co.
(1925) 195 Cal. 548, 564 [234 P. 398, 38 A.L.R. 1186]), here the trial court did not reach the question, because it considered dispositive its decision that the Department could not prevail on the merits.
Mr. Witkin describes the situation where adequacy of a legal remedy is at issue: “The usual statement of this factor is in terms of ‘inadequacy of the
legal remedy’ or, even more narrowly, ‘inadequacy of damages.’ The idea, which dates from the time of the early courts of chancery, is that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. [Citation.] [fl] Our statutes cover this factor in the following language: ‘When pecuniary compensation would not afford adequate relief.’ ([Code of Civ. Proc., § 526, subd. (a)(4); Civ. Code, § 3422, subd. (1)].) ‘Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.’ ([Code of Civ. Proc., § 526, subd. (a)(5); Civ. Code, § 3422, subd. (2)].) [Citations.]” (6 Witkin,
op. cit. supra,
§ 253, p. 220.)
In this case, money damages are inadequate because, as we have noted, a damages remedy is precluded by section 2014.
The adequate remedy, in ACID’s view, is found in other (non-CESA) provisions of the code, authorizing the Department to install a fish screen on conduits such as ACID’s facility to prevent diversion of fish. Thus, sections 6021
and 6023
allow the Department to install a fish screen and require the conduit owner to cooperate and supply water to return fish trapped by the screen back to the river. The Department may install the screen even in the absence of owner cooperation, unless the owner requests intervention of the
Department of Water Resources (DWR). (§ Section 6024.
) Section 6024 also provides an administrative remedy in that certain technical disputes, such as size and type of screen, must be submitted for resolution to the DWR. Section 6028 provides: “All money paid by the Department to the owner of a conduit pursuant to this article shall be paid out of the Fish and Game Preservation Fund.”
Here, section 6021 provides the Department “may” install fish screens. The duty is plainly discretionary. ACID cites no authority for the proposition that a public entity has an adequate remedy at law by expending public funds in the exercise of a discretionary duty. Nor has our independent research disclosed any authority supporting that view.
ACID claims it has no power to install a fish screen. ACID cites authority for the general proposition that its own powers are limited to those conferred by the Water Code. (E.g.,
Bottoms
v.
Madera Irr. Dist.
(1925) 74 Cal.App. 681, 701 [242 P. 100].) According to ACID, it does not have the power to operate district-owned property for the specific purpose of preserving fish. However, ACID fails to cite any specific authority that would prevent ACID from installing a screen to protect the fish in the course of its operations. To the contrary, we have held that an irrigation district’s right to divert water from the river for irrigation purposes carries with it an implied duty in so doing to protect fish.
(People
v.
Glenn-Colusa Irr. Dist.
(1932) 127 Cal.App. 30, 36 [15 P.2d 549].)
None of the other cases cited by ACID support its position that injunctive relief is improper under the facts of this case.
(Livingston Rock etc. Co.
v.
County of L.
A. (1954) 43 Cal.2d 121, 128-129 [272 P.2d 4] [certiorari or mandamus was adequate remedy to test proper exercise of discretion by regional planning commission];
Morrison
v.
Land
(1915) 169 Cal. 580 [147
P. 259] [specific performance of contract not available where damages remedy sufficient];
Triangle Ranch, Inc.
v.
Union Oil Co.
(1955) 135 Cal.App.2d 428, 434, 438 [287 P.2d 537] [injunctive relief not available where proper remedy was administrative mandamus to review regional planning commission decision];
North Side etc. Assn.
v.
Hillside etc. Park
(1945) 70 Cal.App.2d 609, 615 [161 P.2d 618] [in action to attack validity and to set aside cemetery permit, injunctive relief not available where adequate remedy was afforded plaintiffs by a writ to review legality of administrative board’s action in granting the permit].)
We conclude the Department has no adequate remedy at law, so that injunctive relief is an available remedy in this case.
V
In a related argument, ACID contends relief is barred by the Department’s failure to exhaust administrative remedies. The rule is that where a right is given and a remedy provided by statute, the remedy so provided must ordinarily be pursued before the courts will supply a legal remedy.
(Rojo
v.
Kliger
(1990) 52 Cal.3d 65, 83 [276 Cal.Rptr. 130, 801 P.2d 373].)
In ACID’s view, the Department was required to pursue resolution through DWR pursuant to section 6024 (fn. 9,
ante).
The Department responds that the exhaustion doctrine does not apply here, because the installation of a fish screen by the Department is optional and is not a prerequisite to court action. We again agree with the Department.
We recognize that section 6024 contains mandatory language requiring submission of
certain
disputes to DWR. However, the specified disputes— type, size, mesh, or location of the screen, amount of water required for a bypass, or time frame for installation—are expressly limited to technical matters presumably within the particular expertise of DWR. Here, as we have indicated, the dispute related to legal rather than technical questions. While section 6024 would prevent the Department from installing a screen if
ACID
had requested a decision from DWR, nothing in the statute compels the Department to resort to DWR in the absence of a factual dispute.
This case is thus distinguishable from the authorities cited by ACID, wherein applicable administrative remedies were provided.
(Gantner & Mattern Co.
v.
California E. Com.
(1941) 17 Cal.2d 314, 317 [109 P.2d 932] [statute provided for Employment Commission review of referee’s determination of dispute over unemployment benefits];
Abelleira
v.
District Court of Appeal
(1941) 17 Cal.2d 280, 293 [109 P.2d 942, 132 A.L.R. 715] [same];
Teeter
v.
Los Angeles
(1930) 209 Cal. 685, 687 [290 P. 11] [Street Improvement Act provided that all protests against proposed work be first submitted to city council];
Yamaha Motor Corp.
v.
Superior Court
(1986) 185 Cal.App.3d 1232 [230 Cal.Rptr. 382] [New Motor Vehicle Board had particular expertise and statutory authority to decide auto franchise dispute];
Karlin
v.
Zalta
(1984) 154 Cal.App.3d 953, 983-986 [201 Cal.Rptr. 379] [Insurance Code provided pervasive and self-contained administrative procedure for monitoring insurance rates and anticompetitive conditions that might produce such rates].)
We conclude this action is not barred by the doctrine of exhaustion of administrative remedies.
VI
As noted, both parties ask us to rule on the merits of the preliminary injunction. The Department presented evidence in the trial court of the alarming decrease of this endangered species. ACID makes no specific argument on appeal that it will be harmed by imposition of a preliminary injunction. We therefore conclude the balance of hardship tips in favor of Oncorhynchus Tshawytscha.
We conclude section 2080 applies to the destruction of fish incidental to lawful irrigation activity, and the Department is entitled to a preliminary injunction. In light of our conclusion that section 2080 applies, we need not address the parties arguments regarding the purpose of the
federal
Endangered Species Act (16 U.S.C. § 1531) and whether the federal act would preempt CESA in the event we were to uphold the trial court’s narrow interpretation of state law.
Disposition
The judgment (order) is reversed and the cause remanded with directions to the trial court to vacate its order denying preliminary injunction and to enter a new order granting the preliminary injunction. The Department will recover its costs on appeal.
Sparks, Acting P. J., and Scotland, J., concurred.