Where Western Joshua Trees Grow So Do Restrictions on Land Use

The iconic Western Joshua tree stands out on the desert landscape, and now it also stands to preclude, delay, or downsize any plans, projects, and other activities landowners have in mind. The California Fish and Game Commission yesterday accepted a petition to list the Western Joshua tree (WJT) as threatened under the California Endangered Species Act (CESA) for further review over the course of a year, after which it will decide whether actually listing the species is warranted. Species the Commission decides should be further reviewed in this fashion are dubbed “candidates” for listing. Even though little evidence may suffice to trigger such review, and that review may reveal the species not to be threatened or endangered, CESA protects such candidates the same as if they were listed as threatened or endangered. As a consequence, activities on about 3.5 million acres of land in and around the Mojave Desert in southern California occupied by the WJT must now conform to CESA’s restrictions.

CESA, though, affords landowners more flexibility with respect to plants than fish and wildlife. CESA prohibits the taking of listed species except as otherwise provided in the Native Plant Protection Act or California Desert Native Plants Act. Those statutes set forth several exceptions to the take prohibition.

Those exceptions nonetheless leave many types of activities restricted, which has prompted landowners and industries to seek relief from the Commission’s decision. Some have urged the Commission to adopt one or more industry-wide or activity-wide rules under section 2084 of CESA, which enables the Commission to authorize the taking of any candidate species subject to terms and conditions it prescribes. The Commission indeed adopted one such rule authorizing take of WJT for 15 specific solar energy projects. Some also anticipate trying to persuade the Commission during its further review that the WJT is not threatened and thus should not be listed as such under CESA. Others contemplate suing the Commission to set aside its decision, alleging that the petition falls short of satisfying CESA’s specified requirements; they may seek a stay or preliminary injunction rendering the Commission’s WJT decision inoperative until the court rules on its validity.

BACKGROUND

CESA generally authorizes the California Fish and Game Commission to list species as “endangered” or “threatened” in response to petitions by the California Department of Fish and Wildlife or any interested persons. A native species qualifies as “endangered” if it “is in serious danger of becoming extinct throughout all, or a significant portion, of its range.” It may be regarded “threatened” if, “although not presently threatened with extinction, [it] is likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts required by [CESA].”

The Commission must consider a petition, together with the Department’s evaluation of it, and decide whether to “accept” it for further consideration. To be accepted, a petition must contain “sufficient scientific information that [the listing] may be warranted,” including “information regarding the population trend, range, distribution, abundance, and life history of a species, the factors affecting the ability of the population to survive and reproduce, the degree and immediacy of the threat, [and] the impact of existing management efforts.”

If the Commission accepts a petition, the Department must within 12 months prepare a peer-reviewed report based on the best scientific information available to it indicating whether listing the species actually is warranted. The Commission must then consider that report, hold a public hearing, and determine whether to list the species.

The Act prohibits anyone from “taking” listed species without authorization. Unlike the federal Endangered Species Act, CESA also prohibits the take of species that are “candidates” for listing.

CESA authorizes the Department to permit the taking of listed species that is incidental to otherwise lawful activities through permits or memoranda of understanding, determinations that authorization of incidental taking of a species under the federal Endangered Species Act is consistent with CESA, or approval of natural community conservation plans.

CESA generally does not prohibit the taking of listed or candidate species incidental to routine and ongoing agricultural activities that occur while management practices are being followed in keeping with locally designed volunteer programs to minimize take of such species and encourage enhancement of habitat. In addition, it does not prohibit the accidental take of listed or candidate species that occurs on a farm or ranch in the course of otherwise lawful routine and ongoing agricultural activities.

While CESA prohibits the take of listed and candidate plants, it does so “except as otherwise provided” in the Native Plant Protection Act (NPPA) or California Desert Native Plants Act (DNPA). The NPPA exempts various activities:

• Emergency work necessary to protect life or property.
• Agricultural operations or management practices, including the clearing of land for agricultural practices or fire control measures.
• Timber operations in accordance with a timber harvesting plan.
• Required mining assessment work pursuant to federal or state mining laws.
• Removal of plants from a canal, lateral ditch, building site, or road, or other right-of-way by the owner of the land or his agent.
• Performance by a public agency or a publicly or privately owned public utility of its obligation to provide service to the public.

Where the Department has notified a landowner that a rare or endangered native plant is growing on its land, the landowner must notify the Department at least 10 days in advance of changing the land use to allow for salvage of the plant. Failure by the Department to salvage the plant within 10 days of notification entitles the landowner to proceed without regard to the NPPA.

The DNPA provides somewhat similar exemptions and more generous permitting rules.

WESTERN JOSHUA TREE DECISION

The status of the WJT was first considered by the U.S. Fish and Wildlife Service in response to a petition to list the species as threatened under the federal Endangered Species Act. After years of review, the Service concluded in August 2019 that listing the WJT is not warranted. Noting the species’ primary stressors are “wildfire, invasive plants, effects of climatic changes, and habitat loss,” the Service found “no evidence to indicate recent population size reductions or range contractions” of the WJT in the last 40 years. Evaluating environmental conditions and threats 80 years into the future, the Service concluded they “would not lead to population- or species-level declines in the foreseeable future.”

Two months later, the Center for Biological Diversity submitted a petition to the Commission to list the WJT as threatened under CESA. Organizations representing landowners and businesses objected that the petition fell short of statutory requirements, and in particular failed to provide sufficient information about the abundance and population trend of the WJT. The Department evaluated the petition and found that it “does not present an estimate of western Joshua tree population size, nor does it provide evidence of a range-wide population trend.” Adding that information available to it “indicates that the abundance of western Joshua tree is currently relatively high,” the Department nonetheless concluded that the petition provides sufficient information for it to recommend that the Commission accept the petition for further review. Acknowledging its informational shortcomings, the petition argued that regardless of the WJT’s abundance and population trend, the WJT’s future looks dim owing to predictions of climate change, fire, and habitat loss.

Good enough, signaled the Commissioners. At a hearing on August 20, 2020, the Commission considered dozens of written comments and heard from over 100 people (each afforded all of one minute to comment). After closing the hearing, the Commissioners said they favored accepting the petition, one explaining that the “bar is very low” and indeed they could reject the petition only if they believed there is “no substantial possibility [the WJT] could be listed upon review by the Department.” They voted to postpone making a decision until a special meeting in September, hoping that would give the Commission staff and stakeholders time to develop suggestions for rules under section 2084 to allow take of WJT for specified types of projects and activities, which the Commission could then consider at the special meeting.

On September 22, 2020, the Commission accepted the petition, thus rendering the WJT a candidate species protected under CESA. The Commission also adopted a rule authorizing take of WJT for 15 solar energy projects that have completed or nearly completed permitting processes and are poised to break ground. The rule prescribes information-gathering, reporting and mitigation requirements, including compensating for impacts to WJT habitat by conserving 1.5 acres of habitat for every acre impacted by the projects. The Commission noted that it is also discussing with San Bernardino County the prospect of another rule for certain routine, small-scale local government-authorized projects, which it anticipates will be ready for consideration at its October meeting.

WHAT’S NEXT

The Department will conduct a further review of the status of the WJT and, within a year or so, issue a peer-reviewed report indicating whether listing the WJT as threatened is warranted. The Commission will then hold another public hearing and decide whether to actually list the WJT. Those opposed to such a listing will weigh in with whatever evidence and arguments they can muster to persuade the Commission that the WJT is not threatened within the meaning of CESA. Stay tuned.

In the meantime, owners of land occupied by WJT will need to deal with CESA’s restrictions in some fashion. Since WJT grows not just in wide open spaces, but also urban areas, many face questions about what they may do on their land. Some of course may simply refrain from activities that would take WJT, though that may disrupt or delay their plans and projects. At the same time, they may undertake environmental studies, agency outreach, and otherwise manage their lands to best position themselves to move ahead when the time is right and the law allows. Others—the lucky ones—may find that their activities fall within one or another of the NPPA’s exemptions, and thus are not constrained by CESA.

The solar energy projects covered by the section 2084 rule naturally may proceed in keeping with the rule. Assuming the Commission adopts another rule covering certain projects in San Bernardino County, those may proceed as well. Others may try to persuade the Commission to adopt additional rules for other types of projects and activities.

Those whose activities are not covered by an exemption or section 2084 rule may resort to seeking incidental take permits for their specific activities and projects. Obtaining such permits typically does not come easily, and naturally entails some time and expense.

Relief may also be sought through litigation. Some are considering suing the Commission to set aside its decision accepting the petition. They likely will ask the court to stay or otherwise enjoin implementation of the decision while its validity is being reviewed. Such a stay or injunction could effectively remove the prohibition of take of WJT, and thus obviate any need for landowners to stop or delay projects, fit activities within NPPA exemptions, or seek any sort of take authorization.

A broader issue highlighted by the WJT decision is the wisdom of CESA’s treatment of “candidates” during the listing process. The Act provides that to be accepted a petition must show that listing a species “may be warranted.” Courts have read this to establish a low threshold and, further, to flip the burden of proof such that the Commission should reject a petition only if there is “the absence of any substantial possibility that the species could be listed after the requisite [one-year] review of the status of the species by the Department.” Even though the showing needed to designate a “candidate” is thus slight, the consequences of that designation for affected landowners and others are substantial. The species is immediately protected as if it is threatened or endangered, even though further review may well reveal it not to be so.

Responding to this hair-trigger, high-stakes feature of CESA’s listing process, Assemblyman Hayes offered a bill, AB 235, on June 29, 2020, to afford more flexibility in the treatment of candidates by authorizing the Commission, upon making certain findings, to allow the taking of a candidate species during the duration of the review period leading up to a decision whether to list the species.

David Ivester
235 Montgomery Street, Suite 935
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630