|October 21, 1997
Gail Kobetich, Field Supervisor
U.S. Fish & Wildlife Service
2730 Lokar Ave. West
Carlsbad, CA. 92008
VIA FAX (760) 431-9618
Bill Tippets, Field Supervisor
CDFG NCCP Program
4949 Viewridge Avenue
San Diego, CA. 92123-1662
Attn.: Rom Remple, Program Supervisor
VIA FAX (619) 467-4235
Bill Horn, Chairman
San Diego County Board of Supervisors
1600 Pacific Coast Hwy.
San Diego, CA.
VIA FAX (619) 557-4025
RE: San Diego County Multiple Species Conservation Program (MSCP), Program EIR/EIS, MSCP/NCCP Implementation Agreement, Section 4(d) Natural Communities Conservation Plan/ Interim Take HLMP, and Application for Incidental Take Permits (ITPs).
Spirit of the Sage Council (Sage Council) appreciates the opportunity to review and comment on the proposed County Multiple Species Conservation Plan, including subregional plans and associated documents as referenced (hereafter referred to as MSCP or HCP). As you are aware, the Sage Council has been monitoring and providing substantial comments on the NCCP program and regional conservation plans since 1991. The Sage Council has previously commented on the City of San Diego MSCP and amends, and expands upon, those previous comments as they apply to the County and approval process.
We are a non-profit conservation project and coalition of over 30 grassroots and national organizations, representing the public trust interests of approximately 1,000 individual members and supporters throughout the United States, Canada and Mexico. The Sage Council has representatives in the California counties of San Diego, Riverside, San Bernardino, Orange, Los Angeles, Ventura and Yolo.
The Sage Council offers the following comments and recommendations for your consideration and appropriate response. Please ensure that this comment letter and any others, including those comments that have previously been given on the associated City of San Diego MSCP, are included in the administrative record for the MSCP.
As you are aware, the Sage Council is strongly opposed to the early implementation of the Services "new user friendly," and "flexible" ESA policy changes that reverses conservation assurances for T&E species, by giving "certainty" assurances to private profit entities. We believe that in weakening the ESA through policy changes, the Service, CDFG and the County are in violation of the ESA, APA and applicable public trust laws. Fish, Plants, Wildlife and other natural resources are held in public trust by government agencies for "we the people" and conservation purposes.
PUBLIC TRUST v. PRIVATE PROPERTY
The Sage Council recognizes that the primary conflict between the conservation of natural resources for the public good and land use activities for financial gain, is moral or philosophical. However, such philosophical arguments are not new and were settled by those who founded the United States of America and were the authors the Declaration of Independence.
The founders of our country recognized natura suprema -- that nature is supreme and that our guiding principals are "to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them..."
Unfortunately our current modern society has created some abstract belief that an individual can own a piece of the Earth and dominate Nature. This
transfers into an "entitlement" by manmade laws -- but not nature's law. The only entitlements that were decided upon in founding America were "life, liberty and the pursuit of happiness." Somewhere, along the path of democracy the "pursuit of happiness" transgressed into "private property." Our research indicates that the "right to property" was never defined as "land use entitlements." While farm houses, horses, furniture and tools/equipment were "taken without just compensation" by the military during war time, the laws and constitutional amendment made to compensate for the taking of property had little if nothing to do with land use issues or entitlements.
There has been so much rhetoric in regards to "private property rights" that some people including government representatives are actually falling for it. The truth as we know it is that lands within the jurisdiction of the United States of America are held in public trust for "we the people."
Lands under federal or state jurisdiction are not truly sold, it would be a violation of the constitution and public trust doctrines and laws. What an individual or corporation buys or is sold is a "deed" and "entitlements." A similar situation occurs in buying an automobile. The state requires that one registers the car, buys liability insurance and buys a license. If one does not abide by these requirements inevitably there is a risk that the car will be taken and impounded, and that you will receive a citation with fines and/or prison. Therefore, how can one accurately proclaim that they "own" a car and that it is their "private property?"
Much the same applies to buying a deed and title to a land holding. One is required to pay state and/or federal taxes. One must abide by City and County Ordinances, State Codes, Federal Regulations etc.. Land holdings are not "private property" or excluded from public laws and regulations. "We the people" have the right to tell land holders what they can and cannot do with our public trust resources. If we find it necessary to protect the land and resources and acquire "deed and title" we may do so through condemnation. (See Pennsylvania Coal v. Mahan.)
Obviously, the destruction of imperiled habitats and killing of endangered species is a "noxious use of land" that effects the "health, safety and general welfare" of "We the People."
Those land holders in deed and title that do not currently have development "entitlements" or permits must sell or donate the land back to "we the people." We can sympathize with their bad investments and inaccurate assumptions that their private interest could supersede the public good in protecting public trust lands and resources.
In addition, those land holders in deed and title that have previously received development entitlements and permits must "avoid, minimize and mitigate to the maximum extent practicable" the incidental taking of a listed T&E species. "Practicability" must be determined by the lead public trust agency, U.S. Fish & Wildlife Service, and based on the best scientific and commercial data available in regards to conservation of the effected species.
The MSCP and associated development projects are a "noxious" use of land, that places not only listed and unlisted species of plants, fish and wildlife at further risk of extinction through loss of the remaining spatial habitat area, but the program/plan also fails to adequately address the "unforeseen circumstances" associated with fires and floods as discussed further in this letter. Such poor, limited and restricted planning is anticipated to threatened the "health, safety and general welfare" of the public.
All studies and surveys are to be conducted prior to the approval of an EIR so that there may be appropriate public review , commenting and mitigation.(Sunstrom v. Mendicino.) Choices of appropriate places to live and appropriate uses of various areas should be made based on the capacity of the landscape and not on whims and the outmoded concept that humans can manipulate nature as they see fit without any consequences (Keeler-Wolf 1995).
The planned or malicious "taking" of listed T&E species is clearly prohibited by section 9 of the ESA. Cumulative effects are those of future State, local, and private actions that are reasonably certain to occur in the MSCP action area and throughout the range and distribution of the effected species identified for "take." The MSCP has not adequately identified or mitigated for cumulative effects. Collateral effects are those of Federal, State, local, private actions that have occurred, are expected to occur in the future, and "unforeseen circumstances" associated with natural or human induced disasters (e.g. fires or floods) within the MSCP planning area and throughout the range and distribution of the identified "target" species "covered" for "take" and their habitat.
The MSCP and public agencies have failed to disclose to the public the accurate collateral effects of the associated interim and proposed "agency actions" or "unforeseen circumstances" on the species or to adequately mitigate for the species specific "take" or conservation. In addition the Service and Department have not considered future Federal actions that are unrelated to the proposed MSCP and Take Authorization actions because they require separate consultation pursuant to section 7 of the Act.
Furthermore, the permitting agencies and MSCP proponents have failed to adequately plan bioregionally in coordination with the adjacent Riverside County, and other counties, in such a manner that collateral habitat losses and species "take" have been reported and mapped according to the requirements of the section 4(d) rule and Conservation Guidelines for the California gnatcatcher or section 10 of the ESA. Failing to address potential impacts consistent with these sections and regulations, and in the absence of NCCPs/HCPs or the MSCP incorporating substantive indirect impact avoidance and compensation measures, habitat destruction, cowbird parasitism, and indirect impacts resulting from a variety of individual projects will further fragment the distribution of gnatcatchers and other terrestrial species throughout their historic range.
The proposed MSCP, Proposed North County MHCP, Proposed Riverside MSHCP, Proposed Southern Orange MSHCP/NCCP and approved Central/Coastal NCCP/HCP reserve designs so far presented do not adequately address the fragmentation of habitat, especially of areas with core reserve characteristics.
The MSCP, including subregional plans, have been composed of guesswork, slight-of-hand mapping and mathematical manipulation to appease some of the largest and wealthiest landholders in the United States. Numerous scientific authors have predicted the affects of habitat fragmentation on plant and animal populations (Saunders et. al. 1991). Fragment size, fragment distribution, edge effects, and connectivity are of particular concern in California scrublands, primarily because the scale of fire disturbance exceeds the size of many fragments (Sauvajot 1995). At present, empirical evidence is insufficient to explain or even describe the response of most species to habitat fragmentation.
A cursory review of vertebrates suggests that only about half of the species declines can be explained by direct loss of habitat. The remaining species declines appear to result from a combination of direct loss and indirect degradation of habitat. This degradation of habitat can result from external sources and edge effects (Janzen 1986, Start 1991), or intrinsic problems, including the affects of population size, isolation, and stochastic events within habitat fragments (Blake and Karr 1987, Scott 1995).
Fragmentation has been inadequately addressed as well as the other issues mentioned here. In particular edge effects of fragmentation and the development projects associated with the MSCP related to the future issuance of ITPs to "Third Party Beneficiaries" is not only inadequately addressed but mitigation of such impacts is absent and in violation of section 10 of the ESA and NEPA. Edges provide a contact point for the introduction of exotic species which compete or prey on native species (Kelly and Rotenberry 1993).
Specifically, the San Diego Horned Lizard (Phrynosoma coronatum blainvellii) is apparently declining throughout its range and distribution, including within the MSCP planning area (Pianka and Parker 1975, B.H. Brattstrom unpublished report), and is expected to decline with continued loss of habitat that supports its current population and that of its food source, native harvester ants (Pogonomyrmex californica) (Erikson 1971; Cole 1992; Scott 1995). Rather than surveying by protocol for this rare species and providing an acceptable species risk assessment, the responsible public trust agencies and applicants have disregarded the biological needs and replaced political expediency. The literature references and citations for the MSCP have been severely edited in order to accommodate political and economic desires for program approval and permit issuance. In doing so, the agencies and applicant are not ensuring the conservation of "target" or "covered" species and are placing many rare candidate species at a greater risk of endangerment and extinction through, inappropriate guesswork, landholder assurances and misapplied scientific practices.
Section 4(d) Special Rule Requirements and Violations
- - Boyd Gibbons, CDFG 1995 -
Species Status and Unforeseen Circumstances
There are numerous problems with the Section 4(d) rule for the California gnatcatcher and its implementation. The treatment of the species status following fires in San Diego, Orange, Riverside, San Bernardino and Los Angeles counties, is ecologically unrealistic (J.E. Keeley and T. Scott, 1995) and has not been appropriately addressed by the Service and Department, or adequately mitigated by the ITP applicants or recipients charged with land and reserve management, including the local government agencies that are acting as brokers and intermediaries for landholders (Zedler 1995).
Rangewide, the numbers of gnatcatchers are still declining since its listing in 1993 as a result of permitted and unauthorized habitat loss. Mitigation for permitted loss of Coastal Sage Scrub (CSS) typically results in preservation, study, and management of existing habitat, resulting in a net loss to the species. With habitat availability apparently functioning as the primary limiting factor, the Service is not aware of any evidence to suggest that the numbers of birds have increased within remaining habitat patches (USFWS FOIA response to Spirit of the Sage Council, 10/15/97).
At present scientists do not understand the population biology of the California gnatcatcher , Coastal cactus wren, or other sensitive species across fragmented landscapes. Evidence for the persistence of sensitive species in fragmented habitats is not reassuring. Linear fragments may provide open space for a community, but are poor candidates for wildlife habitat. Unsubstantiated methods of integrating houses with shrublands -- such as the MSCP and NCCP -- need to bear the burden of proof; mitigation measures that propose a narrow wildland/urban interface need empirical proof that neither the houses or wildlands will suffer (Scott 1995; Smallwood 1997 unpublished).
Inconsistencies in data collection prevent further quantification of population estimates in terms of individuals or pairs. However, reliable population estimates are needed to accurately determine areas of habitat usage, project impacts, populations where numbers are naturally/unnaturally depressed, areas where enhancement or restoration should occur, whether or not the proposed reserve design is functional, etc. (Burns, USFWS 1-6-96-FW-24, April 16, 1996 Draft).
For millions of years, southern California has been subjected to a variety of dramatic natural forces that have helped to shape its landscapes and affect its natural communities. Now human activities are also exerting dramatic influences on natural areas and impacting remaining native biota. To understand and protect increasingly rare examples of natural habitat in southern California, will require consideration of these major influences. In particular, knowledge of the effects of fire on the ecosystem, including its effects on vegetation and wildlife, must be incorporated into an understanding of the consequences of habitat loss, habitat fragmentation, and development encroachment on wildland areas (Sauvajot, R. 1995).
In recent years, these two issues have often been approached separately by resource managers and conservation biologists. Although significant and important work has been conducted in both areas, much less has occurred linking these two fields, particularly for conservation and management applications. But as was again demonstrated in the fall of 1993, fires will continue to be a dominant force in southern California wildlands, and significant habitat loss and fragmentation related to development has and will continue to occur. As a result, there is a tremendous need to examine these effects together to properly manage and conserve remaining biota (Sauvajot, R. 1995).
The Carlsbad Field Office of the Service and CDFG has been inaccurately identifying the CAGN, and other species proposed for "take" via the MSCP, as residing in burn areas as if nothing has changed (static baseline habitat values absent accurate species status).
The Sage Council accurately assumes that the County and the County's MSCP consultants, Ogden Environmental (Ogden), are treating the species and habitats in the same inappropriate manner. While such actions may potentially protect areas where vegetation is optimistically expected to recover (or type convert) over the next 10-30 years (Craddock 1929, Sampson 1944, Ryan and Noste 1985, Jones and Laude 1960, Bailey and Rice 1969, Hodgkinson 1991, Hanes 1971, 1977, Keeley 1991, Sweeney 1956, Wright 1931, Keeley et. al. 1985, Parker and Rogers 1988, Keeley 1977, Bullock 1982, Rowe et. al. 1954, Bently and Fenner 1958, Green 1970, Borchert and Odion 1995, d'Antonio et. al. 1993, Price, M., Waser, N., Taylor, K. and Pluff, K. 1993, Schoener 1974, Price 1978, Westoby et. al. 1989, d'Antionio and Vitousek 1992, Zedler et.al. 1983, Wells 1987, Morton 1989, Troxell and Peterson 1937, Ziemer and Swanston 1977, Abe and Ziemer 1991, Spittler et. al. 1994,Miller and Jastrow 1992, Westman and O'Leary 1986, Malanson and O'Leary 1982, Magney and Roberson 1995, O'Leary 1995, O'Leary 1990, Keeler-Wolf 1995, Keeley et. al. 1995, Bowler 1995), such scientifically unsubstantiated speculations by the Service, Department and County, fail to protect or conserve the CAGN and others species (Leopold 1933, Chew et. al. 1959, Howard et. al. 1959, Stoddard 1963, Komarek 1969, Biswell 1989, Lawrence 1966, Catling et. al. 1982, Griffin 1982, Zedler et. al. 1983, Chandler et. al. 1983, Pyne 1984, DeSimone, Cairo, and Zedler unpublished, Mills and Kummerow 1989, Minnich 1989, Jones & Stokes Assoc. 1992, Ed Almanza & Assoc. 1992, LSA Assoc. 1994, Booker et. al. 1995, White et. al. 1995, Bontrager et. al. 1995) , including the cactus wren (Rea and Weaver 1990, Benson 1969, LSA Assoc. 1994, Bontrager et. al. 1995, Mayer and Wirtz 1995, Beyers and Pena (in press), ).
At Camp Pendelton, Tutton et. al (1991) found that 80 percent of known California gnatcatcher locations were in areas that had not burned in at least 16 years (Bontrager, D. et. al. 1995). The lognormal shape of postburn dominance diversity curves for both chaparral and coastal sage scrub clearly indicate that a substantial proportion of postburn species are relatively rare at the 625-m2 sampling scale (O'Leary 1995). Better control of erosion reduction activities and deliberate avoidance of sensitive plant habitats is needed to reduce postfire damage by agencies.
A postfire activity and staging plan within a NEPA and EIR context for fire prone areas should be developed before the fire season to identify and mandate avoidance of sensitive resources (Bowler 1995). It appears such procedures and in-house fire policy decisions are purely political and a means in which to continue with the State NCCP program and 4(d) rule planning process, including the MSCP. (See Save Our Springs Alliance v. Babbitt.) The principal that will come into play in any legal confrontation is that the validity of a scientific approach is best judged by the scientific community (St. John 1995) (William Daubert v. Merrell Dow Pharmasuticals.)
There were 24 taxa of rare plants that were effected by the fall fires of 1993. As of 1995 there were no detailed post-fire studies of these plants. For animals, certainly the gross effects of type-conversion and the somewhat lesser effects of inappropriate seeding on local communities could easily reduce the populations of many rare species such as the orange-throated whiptail and the California gnatcatcher. These effects are particularly significant in the already highly fragmented and urbanized mosaic of scrub habitats in southwestern California (Keeler-Wolf 1995).
The County and MSCP has failed to adequately survey, study and identify the proposed impacts of associated ITP and Take development projects on the orange-throated whiptail and other species identified for take "coverage."
The public trust agencies, permitting and applicants, have failed to require the best scientific practices in assessing species risk factors, including population viability analysis or appropriately utilizing the indicators approach to conservation biology. The MSCP has been politically placed on a fast track that is not ecologically realistic to perform an adequate or appropriate scientific study and analysis of the "targeted" species to be "taken" or the habitats to be destroyed.
More research is needed to determine the relationship between fire severity and coastal sage scrub seed banks (Beyers et. al. 1995). It is critical to remember that one of the basic characteristics of natural systems in southern California is their great spatial and temporal variability. So answers are not likely to be simple, and studies conducted on single sites or in single years will not yield results that can be widely generalized (Conrad et. al. 1995).
The Sage Council contends that in order to effectively conserve the species and keep an accurate account of the birds population, the Service, CDFG, County and Odgen, need to take into account all of the collateral losses and unpermitted take, including fire impacts. This is also needed to best mitigate for "unforeseen circumstances" in relation to the No Surprises policy and other private benefactor assurances. To date the Carlsbad Field Office of the Service has been unable to answer or provide the Sage Council with data that explains how the fires (unforeseen circumstances) that occurred in CAGN habitat, and the associated unpermitted take, have been mitigated for or how the plans have been amended to provide for the implementation of adaptive management practices to ensure that the species new needs have been provided for.
This leads us to assume that the Service is not mitigating for the fires, and floods, or adjusting Habitat Conservation Plan reserves to implement scientifically acceptable adaptive management practices. Thus the lead agencies have failed to address "unforeseen circumstances," species decline and habitat loss (temporary or long term) due to fires within the MSCP planning area and regionally. Such failings indicate that the lead agencies have failed in their "duty to conserve," to "use the best scientific and commercial data" or to "utilize all the methods and procedures in furtherance of the Act." While the MSCP misleads the public into believing that scientifically accepted adaptive management of reserves will be practiced, the Sage Council brings to light that the MSCP, or terms and conditions of the MSCP, does not in reality contain any substantial language to ensure adaptive management will occur.
The earth is dynamic (Spittler 1995, Spittler 1989a, 1989b, Savage et. al. 1975) and such changes much be accommodated through the implementation of scientifically sound adaptive management practices (Walters 1986, White et. al. 1995, Smallwood et. al. unpublished 1997,) but the MSCP has replaced such accommodations by the vague term "adaptive management strategies" or "adaptive management techniques."
The MSCP fails to provide the public with a clear description of such "strategies" or "techniques" and arbitrarily assigns their development to the future and their creator unnamed. The public and qualified independent scientists are simply dismissed from the development, review and comment of such future adaptive management planning and implementation. The MSCP is deficient in planning for fires and floods (unforeseen circumstances) within the habitat planning area and reserve. The MSCP and responsible public trust agencies take an inadequate "one-size-fits all" approach (Spittler 1995) towards watersheds, habitats and species specific conservation needs.
In addition, the method of monitoring the MSCP reserves and effected species is not included for public review and comment. Again the MSCP is vague and the monitoring technique arbitrary. How often will the reserves be monitored and species status reported to the agencies and public? Will the monitoring reports undergo independent scientific review by experts in specific ecological topics?
Monitoring of the reserves, habitats and species should not equate for mitigation of development impacts and species take. Monitoring should be part of reserve management and the reports detailed enough, having followed species survey protocol, to contribute to the implementation of adaptive management practices. Again the MSCP is deficient and fails to adequately provide the public and lead agencies with needed information in which to make a scientifically sound decision and biological opinion.
We hope you can better understand our concern and misgivings. This is a critically important and timely issue, especially when Interior and the Service
tout the Southern California HCPs as an example for the whole country.
Let the truth be known that there has been extensive unpermitted "take" of the CAGN by fires alone (unforeseen circumstances). In addition to the decline of the species by fires, the initial acre figures given in the listing and 4(d) rule are inaccurate. The acre figures were an estimate of what was on the ground in 1993. What was also left unaccounted for were the numerous development projects that had been previously approved during the 1970's and 1980's. Many of these projects were approved with a "negative declaration" and failed to mitigate impacts or even prepare Environmental Impact Reports (EIRs). The State and Service failed to investigate the number of approved developments and expected habitat loss throughout the NCCP planning area (13 subregions) and U.S. range of the species. Therefore, the habitat that was mapped was not habitat that could be conserved in total.
The Service has stated that all habitat areas are to be included in species conservation planning, and that there are no exemptions or exclusions (Jeff Newman, USFWS, personal communication 10/97). However, the Service, Department, SANBAG, County and Cities have not notified landholders that have received prior project approval and/or grading permits to cease and desist from habitat destruction. Additionally, the agencies have failed to notice the public for review and comment the section 4(d) Interim Take and Habitat Loss Management Plans (HLMP) within the MSCP planning area. Section 4(d) concurrence letters between SANDAG, Service Department and MSCP applicants has been communicated and approved behind closed doors.
The only way in which the Sage Council or public has been able to obtain information on 4(d) Interim Take projects and approvals has been through the Freedom of Information Act (FOIA) requests. However, such information is received after-the-fact and without any recourse for the public. The Sage Council finds the Service, Department, SANDAG, County and Cities in violation of the Administrative Procedures Act (APA), Public Records Act, Civil Rights Act, Brown Act and other applicable right-to-know regulations. The agencies have clearly violated the Sage Council's, and public's, Fourteenth amendment due process rights and civil rights. The MSCP documents and administrative record fails to include the associated 4(d) Interim Take records, concurrence letters and approved negotiated mitigation plans for listed and migratory species, for public review and comment.
Interim Take, Collateral and CAGN Population Decline
The 5% Interim Take based on the habitat acres in the listing decision is severely flawed. Needless to say, the notion to take 5% of a threatened and declining population is illogical to begin with. However, to take 5% + discount losses from fires + discount previously approved tracts of habitat + Section 7 Take from federal projects + independent Section 10 projects = a recipe for extinction. This is not conservation! This is not a example of what should be done throughout the United States or in San Diego County and cities. The species are not "covered" but covered up by political expediency for private profit industries and the wealthy elitist land holders. The California gnatcatcher is declining throughout its range and distribution (Burns, J., 1996) and in a two day period, 26-27 October, 17 major fires, driven by fierce Santa Ana winds, consumed over 65,000 ha (170,000 ac), between San Diego and Ventura counties. Within a week four more fires ignited in this region, ultimately burning about 80,000 ha (195,000 ac)... (J.E. Keeley and T. Scott, 1995).
As you are aware, the section 4(d) special rule for the California gnatcatcher and BO adopted the NCCP Conservation Guidelines and stated that the Process Guidelines are to be used in concert with the Conservation Guidelines. See Biological Opinion on the Proposed Special Rule to Authorize Incidental Take of Coastal California gnatcatchers (1-6-93-FW-37) and USFWS MEMORANDUM, dated November 10, 1993, to State Supervisor, from Peter Stine, Acting Field Supervisor, regarding 1-6-93-FW-37.
"The SRP recommended, based on a review of available information, that during the interim when long-term plans are being drafted that no more than 5 percent of the coastal sage scrub should be lost to prevent closure of future conservation planning options. It was recommended that these short-term losses of habitat occur in areas of low conservation value (CDFG 1993b). This loss equates to approximately 20,920 acres of CSS and from 66 to 116 pairs of coastal California gnatcatchers (USFWS 1993). There is estimated to be approximately 400,000 acres of coastal sage scrub remaining within the NCCP planning area (USFWS 1993). The number of gnatcatcher pairs that could be lost during the interim planning period are estimated to represent from 3 to 5 percent of the United States population (USFWS 1993) (emphasis added)."
"Enhancement measures that can be used as mitigation during the interim phase include prevention of overgrazing by domestic live stock and reducing the impacts to coastal sage scrub due to off-road vehicle activities. It must be stressed that restoration is largely experimental at this point in time and therefore should not be considered full mitigation for unavoidable project impacts." (emphasis added).
In many instances, especially during the "Interim take" period, the Service and Department have permitted revegetation and restoration as mitigation for the loss of high quality habitat and occupied habitat regardless of the referenced BO and 4(d)rule. Such mitigation has not been "experimental" because there has been no scientific criteria or goals to be met, simply vague and arbitrary statements. Citing a Fiedler (1991) survey, Howald (1993) states that "past translocation projects with endangered plants in California have experienced low rates of success."
The Terms and Conditions of the MSCP and Take Authorizations, including interim and incidental take, are not consistent with the intent of the ESA (TVA v. Hill, or Babbitt v. Sweet Home Chapter), the final special 4(d) rule for the California gnatcatcher, the NCCP Conservation Guidelines, the NCCP Process Guidelines, the Biological Opinion on the Proposed Special Rule to Authorize Incidental Take of Coastal California gnatcatchers (1-6-93-FW-37) and USFWS MEMORANDUM, dated November 10, 1993, to State Supervisor, from Peter Stine, Acting Field Supervisor, regarding 1-6-93-FW-37.
Request for Inclusion of Biological Data for MSCP Analysis
Identify the acre amount of CSS within the proposed MSCP planning area and NCCP subregional planning area in 1994 on the date that the CAGN was listed.
Identify the known number of CAGN that occupied the habitat within the MSCP planning area and NCCP subregional planning area at the time of listing.
Provide an up-to-date species status report for the California gnatcatcher.
Provide an up-to-date copy of the tracking and monitoring report for the threatened California gnatcatcher and Coastal Sage Scrub, within the MSCP planning area and NCCP subregional planning area. pursuant the section 4(d) special rule. Please include a list of all the projects that have been approved through 4(d) concurrence letters and HLMP program. Provide the names of the projects, the location of the projects, the amount of CSS destroyed by the project, the amount of take that occurred to the CAGN and other listed species.
Request for Inclusion of Biological Data for MSCP Analysis
- Provide an up-to-date species risk assessment and population viability analysis for the threatened California gnatcatcher and other 26 priority "target" species identified for "take" and/or "coverage" conservation provisions.
- Provide a comparative analysis of habitat loss for the California gnatcatcher inclusive of fire mortalities, 4(d) interim take, section 7 take, section 10 take and unpermitted take, and habitat acquired for conservation purposes.
- Identify the total amount (collateral losses) of CSS habitat acres that have been destroyed by projects under Section 4(d), Sect. 7, Sect. 10, and by fires within the proposed MSCP planning area and NCCP subregional planning area in 1994 on the date that the CAGN was listed.
- Identify all revegetation mitigation and enhancement areas that have been previously approved within the MSCP area.
- Identify lands that have been previously set aside as mitigation areas, lands with conservation easements, lands that are publicly held by the Cities, County, State or Federal Agencies. Also identify the acreage of each public land holding separately and collectively that are to be included in the MSCP area.
It is ecologically necessary to access and reassess the status of the CAGN and CSS within the proposed MSCP area and range of the U.S. population to ensure that the 5% interim limit has not been exceeded.
Another slight of hand trick that's been going on is that the "planning areas" are increasing the acreage amount by including developed lands. In doing so, the local jurisdictions and land holders that are enrolled in the NCCP program increase the 5% interim take limit.
- The Sage Council requests that the County, Permit Applicants, Service and CDFG remove "developed lands" acres as identified , from the MSCP documents and resign from this form of numbers game manipulation.
- Disturbed lands and agricultural lands that are currently being disked should not be included as acres" in the MSCP planning area or future reserves. We recognize that some developed, disturbed or agricultural lands may have the potential to act as buffers or linkages. However, this should not be used as an excuse to refer to these areas as habitat or movement corridors without providing scientific substantiation and evidence. Furthermore, the utilization of such developed, disturbed and disked agricultural lands should not be utilized as mitigation. The MSCP reserve design should consider only viable habitat as core reserves and natural movement corridors.
- The Sage Council requests that County, Permit Applicants, CDFG and the Service create a model and format that clearly identifies land holdings in Tables by columns, and in maps by color or marking. Land holding should be identified, including the acreage, for "private," "private /conservation easement," "private w/local approved development," "public/city held," "public/county held," "public/state held," "public/federal held," "tribal lands," "public/water district," "private/water district," "public/utility," "private/utility," "previously dedicated mitigation land," "multiple use lands" and "recreational lands (passive or motorized)"
- A complete list of the proposed projects that are planned and/or in process that will "take" listed and unlisted "identified " species by MSCP "Participants" and signatories of the MOU, Planning Agreement and future IA.
- Copies of all the 4 (d) concurrence letters and USFWS responses, including mitigation plans and location maps, for development projects that will take coastal sage scrub and/or California gnatcatchers in Orange and San Diego Counties including cities.
- The Sage Council is formally notifying the Service and SANDAG that we believe that the Service has available data that would indicate that the section 4(d) interim take limit has been exceeded.
It would be prudent for the Service to suspend all Take Permits and Take Authorizations that have been issued to ensure the conservation of the California gnatcatcher. The Service must use the best scientific information available, including all methods and procedures to ensure the conservation of the California gnatcatcher. In doing so, the Service must give the benefit of the doubt to the California gnatcatcher. The Service may not rest on assumptions, speculations or unproven concepts, but must ensure conservation.
UNFORESEEN CIRCUMSTANCES --
Fires, Floods and Cultural Resources for California Tribes
To adequately mitigate for "unforeseen circumstance" and ensure that such potential losses that are expected to occur within the next 30-50 years and MSCP time period for utilizing Incidental Take Permits (ITPs) or Take Authorizations, the County, Permit Applicants, CDFG and the Service need to identify and provide the following information.
- The County, Cities, Service, and Department and policy, directive or procedures on listed species mortalities and habitat loss due to fires or floods -- the mitigation requirements, adaptive management practices etc. -- within HCP planning areas, core reserves, buffers and movement corridors.
It is our current understanding, through verbal communications with FWS Carlsbad staff, that when fires occur in habitat occupied by listed species, the Service continues to perceive and treat the habitat after the fire as if the baseline value were the same as before the fire. The value of the habitat does not decrease because the value losses are considered temporary. In addition, the species status does not change because the Service does not recognize the mortalities, disturbance, harassment and loss of nests or eggs. While this current practice may protect historic or potential habitat, it fails to conserve the species.
The Services, Department, County and SANDAG's policy or directive to keep habitat values and species status static in regards to wildfire.
The Sage Council has numerous concerns over the Service and Department internal fire policy. However, until we can acquire and review the associated documents that could clarify the Services position and procedures, the Sage Council and public can only speculate the possible ramifications on the species.
- We would also like to know whether the "fire policy" is applied across the board for all species? Or are each listed species treated differently? and how the County proposes to precede with the MSCP in relation to fire damages.
- Once the MSCP has been approved and ITPs or Take Authorizations issued, who shall be responsible for mitigating the effects of the fire or flood on the species and habitat, including short-term and long-term adaptive management practices or amending the MSHCP to provide additional habitat for the species?
- In addition if the habitat loss is considered temporary (5-15 years for comparable regrowth), but the species mortalities are permanent, causing a decline in the population, or loss of significant subpopulation, or genetic extent of the species range, what specific actions shall the Cities, SANDAG, CDFG, Service or permit beneficiaries required to take?
- The range of "alternatives" presented in the MSCP related documents fail to provide a conservation scenario, strategy, technique or other schemes that would adequately "avoid, minimize or mitigate to the maximum extent" the proposed "taking" of listed and unlisted T&E species. The MSCP EIR/EIS must include an "alternative" to the "taking" of T&E species. This "alternative" or "scenario" must be developed and explored from the beginning of the planning process and should not be included in documents as an after-thought.
The Sage Council recommends that the MSCP participants and ITP applicants develop a Resource Management Plan (RMP), pursuant CEQA, for each of the effected Cities, that would coincide with the larger regional planning for the MSCP. The benefits of creating and implementing a RMP would provide greater certainty for species conservation, while addressing parcel -by-parcel issues and land acquisition needs, including financial assessments in regards to land acquisition.
The Sage Council requests that the Service, CDFG and MSCP Permit Applicant(s) provide the following information that is currently missing or inadequate from the required HCP/ITP EIS and IA documents for public review and comment;
- Provide a full range of alternatives to the "taking" of species and habitats, including a reasonable explanation of why the alternatives to the "take" of habitat and species are not feasible.
- The permit applicant and parties to the IA need to provide a scientifically sound alternative to the "taking".
- Additionally, the agencies and applicants need to provide an "alternative" that does not include the "No Surprises" and "Safe Harbor" assurances policy or similar language.
- The Sage Council requests that the permitting agencies and applicant provide a scientific and "biologically superior" alternative to the "taking" that does not include the "policies," including the reasons why a "biologically superior" alternative is not feasible.
Private economic gain or losses is not an adequate reason to dismiss an "alternative" to the taking of a listed species. In addition the Service and Permit "applicant" are required to "avoid" the taking of a listed species, occupied habitat, designated critical habitat and identified recovery habitat. The loss, destruction or modification of habitat has been interpreted as to cause "harm" to the listed threatened or endangered species and is defined as "take." (See Babbitt v. Sweet Home)
The U.S. Supreme Court and appellate Court has made it quite clear that the goal and Congressional intent of the ESA is "to halt and reverse the trend towards species extinction, whatever the cost." (TVA v. Hill) and the agencies must give "the benefit of the doubt to the species" in question by using "all methods and procedures which are necessary to prevent the loss of any endangered species, regardless of the cost." (Roosevelt Campobello Int'l Park Com'n v. U.S. Environmental Protection Agency, 684 F.2nd 1041, 1049 (1st Cir. 1982), quoting TVA v. Hill, 437 U.S. at 185, 188 n. 34) (emphasis added).
"It is not administrative department's prerogative to disagree with the congressional policy and refuse to implement it; an administrative agency is required to effectuate congressional intent whether the agency agrees with Congress or not." Ross v. Community Services, Inc., DC. Md. 1975, 396 F. Supp. 278, affirmed 544 F.2d 514. (emphasis added)
Such assurances of private profit for natural resource extractive industries and entities are at an expense to the "people" of the United States through the loss of public trust resources, public trust lands, biodiversity and ecosystem health (general welfare). The Service and Permit Applicant must identify and provide a reasonable explanation to the "people" for causing an ecological deficit, therefore weighing the "common good" and "private profit" perspective in a public trust agency capacity that provides adequate public participation in the government decision making. The current attitude that the Service and public trust agency is demonstrating is predecisional and bias, favoring resource extraction (timber harvesting) over in situ habitat and species conservation needs.
The incremental loss of species habitat throughout its range by issuance of Section 10(a) ITPs, Section 7 Agreements and unpermitted take has led to a cumulative effect, collateral "take" and decline in the CAGN population since listing. The County, Permit Applicants, Service and CDFG have failed to adequately address or assess the cumulative and collateral take, habitat spatial area loss, or as on a whole the total ramifications of their agency actions that have effected the likelihood of recovery for the CAGN.
It has become quite obvious that the species range and distribution has become more limited and restricted through the agencies current implementation of the "new user friendly" and "flexible" Endangered Species Act (ESA). Such implementation of agency ESA policies flies in the face of sound scientific methods and disregards a large portion if not all the body of knowledge for this era.
Request for Best Scientific Information and Methods to be Utilized
The Service, CDFG and Applicant(s) are required to utilize, and base their decisions on, " the best scientific and commercial data available," including those scientific methods that are acceptable not only to the Service but the scientific community. The Service and Applicant should not rely upon "best guess" or "worst case scenarios" that are merely assumptions or assertions without scientific validity. In addition, the Service and Applicant are legally required to do more than "offset" habitat impacts and species "take". The Service and Applicant are legally required to "avoid, minimize and mitigate to the maximum extent practicable." All scientific inference - from the testing of hypotheses to the formation of theories and laws - depends ultimately upon the collection of adequate data, rigorous and critical analysis, independent scientific review and potential revision in the light of new information.
The consultants (Ogden Environmental), has stated that the data that is being utilized has come from the jurisdictions, "who used tools such as aerial photographs and field surveys to gather vegetation information. However, the jurisdictions have not site checked every parcel in their districts." Although the consultants have gathered limited vegetation data, there are large gaps of data missing on wildlife species.
In the Attachment "Preliminary Biological Analysis for MHCP Priority Species" statements have been made in regards to the inaccuracy of the Odgen/SANDAG data base and the need for corrections. "Subsequent review indicated that some biological resources included in the data base represent historical locations that are no longer extant. Some corrections have been made for such cases by the jurisdictions after the Public Review. Further corrections may be made prior to the final MHCP analysis." (emphasis added)
The same consultants and data base have been used for the MSCP and are also inaccurate and inadequate to determine whether the identified or "target" species have been adequately mitigated for or whether the MSCP Reserve design and Reserves shall provide for the conservation of the affected species identified for "take." Species within the MSCP and subregions are assumed to be "covered" and the "take" offset, but are obviously not provided for pursuant sections 10 and 7 of the ESA.
- The Sage Council requests that all corrections to the data base be made immediately and that the accuracy be kept up-to-date. Because projects and grading permits are issued on a weekly, if not daily, basis, it is vital that the data base reflect all the changes to the landscape through habitat loss, taking of species, and fire damages.
The County, Permit Applicants, Service, and Department need to include the following information in the MHCP EIR/EIS for public review and comment.
Species Specific Scientific Studies to Substantiate Translocation as the Best Method for Establishing Recovery. Include the scientific methods utilized, the habitat specific and species specific (sub-population specific) Management Studies, Plans and the Capability Studies for the Implementation of such Monitoring and Management Plans. In addition, include all scientific and commercial data utilized to substantiate the most up-to-date species status referenced in the EIS and future Biological Opinion (BO) or Conference Opinions with the Scientific Literature and Reference Citations.
All biological and cultural technical reports associated with the Application, HCP, EIS and future ITPs or development plans. Cultural surveys and studies are required, but have not been performed, analyzed or mitigated for pursuant Section 106 of the National Historic Preservation Act and other applicable state and federal regulations, including CEQA, legislated for the protection of historic and cultural resources.
Identification of impacts of all the proposed, future and unforeseen circumstances associated with the MHCP/ITP and Agreements. Additionally and more specifically, those foreseeable and unforeseen impacts and ramifications of the proposed agency action within and outside of the proposed "reserve" throughout the HCP "planning area" and the "recovery area".
Identification of species specific avoidance, minimize and mitigation measures that will and shall be successfully implemented prior to the "take" of the species and habitat. The mitigation monitoring plans, fire management plan and any other associated "plans" need to be included in the HCP EIS and IA for public review and commenting, pursuant the ESA, NEPA, NFMA and APA.
Identification of the occupied habitat areas on non-federal lands for future acquisition as part of the Recovery Plan or Program. Identify the amount of current available funds, the funding source(s) and the funding needs for habitat acquisition.
Identify the habitat areas for future acquisition on maps, including the species and habitat/vegetation types on the acquisition sites. Include letters of acquisition agreement by willing sellers and the terms of acquisition. Additionally include three property value assessments and the cost per acre for acquisition of the appropriate "mitigation" properties.
The date of the USGS Quad maps and aerial photos that were used for mapping habitats within the HCP planning area. The date that "accuracy assessment" was completed for the HCP GIS maps. Include the "accuracy assessment" percentage number. Please also include the "ground truthing" methods that were applied for the GIS mapping "accuracy assessment".
A copy of the finalized "recovery plan" for each of the listed species proposed to be "taken" through the proposed HCP/ ITP Application and activities leading to natural resource extraction/associated development, flood control and infrastructure projects within the Application Site and planning area. The EIS should include at the very least a copy of the Federal Register public notices of species specific Recovery Plan approval determination.
A Consistency Analysis of the HCP and the species specific Recovery Plans and existing or proposed designated "Critical Habitat". The HCP EIS should include technical mapping and modeling of historic, current, existing range, distribution and occurrences of the rare, threatened and endangered species, including their nesting and foraging habitat. In addition, the EIS and IA should explain how and why the MSCP/ITP and Agreements will be consistent with the recovery of the species. This explanation should include maps of designated "critical habitat" areas, "recovery plan" area, reserve areas, proposed future reserve areas and areas proposed to be taken by development associated with the application being sought. The Sage Council recommends that the mapping include overlays as well as separate identification of these areas.
Scientific data used to determine the "viability" of each "target", "covered" species populations, subpopulations and occurrences, include the Literature References. More specifically, include a copy of the most up-to-date Population Viability Analysis and Species Risk Assessment, including the names and addresses of the scientific experts that were consultants for the Applicant and HCP.
Identify the "source populations" and of those species identified for "take" within the HCP and IA planning areas and throughout each of the species range and distribution.
Identify the "sink habitats" that are known or expected to occur throughout the Applicants HCP planning area and adjacent habitats, including density modeling for presence and absence.
Identify species specific dispersal habitat and secondary movement corridors for natural disasters, such as fires and floods, that are known or expected to occur within the HCP planning area. Include scientific data that was used to determine the "viability" of proposed movement corridors and linkages. Explain the criteria used in assessing the "viability" of habitats, core reserves, linkages, movement corridors and reserve system buffers.
Identify the known historical flood plane within and adjacent to the Applicant's site and proposed HCP planning area. Including aerial photographs of 500, 100 and 50 year flooding events. The HCP EIS and IA must be legally consistent with NEPA or the Clean Water Act in regards to the conservation of wetlands and waters of the U.S.. The HCP/ITP,EIS and IA should include "wetlands delineations," wetlands vegetation maps and the mitigation or restoration plans associated with the proposed loss and species specific "take" that is expected to occur.
Identify the publicly held lands and previously dedicated mitigation lands separate from the proposed mitigation lands associated with the HCP and ITPs. More specifically identify the public and private share separately by acre to ensure that the proposed mitigation ratios are consistent with the "take" associated by habitat removal impacts.
Identify an appropriate source of private party funding for the Application and proposed HCP/ITPs and associated development. Because this HCP/ITP and developments will contribute to the applicant and "private party", causing a net loss of existing endangered species habitat and decline of their population or occurrences (public trust resources), the applicant should be required to bear all of the burden of costs and "independent scientific review" of scientific substantiation.
Identify all migratory birds known and expected to occur within the Applicant's HCP Planning Area. Include these species in the associated HCP, IA and EIS maps. Include the known nesting habitat, suitable nesting habitat and foraging habitats and fly-ways that is used during migration. Migratory resting and foraging habitats may be as equally essential to the species "survival and recovery" as is nesting and breeding habitat. Because many migratory species are known for nesting in the same habitat area year after year, it is vital that the nesting habitat not only stay intact but also the habitats that the migratory species rest and forage in along their destination.
Migratory Bird Protection
- The MSCP IA or terms and conditions of the incidental take statement does not legally constitute an exemption from the prohibitions of take of listed migratory birds and the bald eagle under the provisions of the Migratory Bird Treaty Act of 1918 (MBTA), and the Bald Eagle Protection Act of 1940. The Service needs to require that all habitat removal will take place outside of the breeding season (February 15 - August 31) to protect against the destruction of nests, eggs, and nestlings and potential violations of the MBTA.
As with other Take Authorization Agreements since February 9, 1996, it is anticipated by the Sage Council that the MSCP/ITP and Agreements propose that the lead and permitting agencies violate the Migratory Bird Treaty Act through Agreements to permit "Incidental Take" and "Special Purpose Take" of fully protected species and their habitat (nests and eggs).
The Agreement is expected not to enforce the provisions of the applicable regulations or to "prosecute," pursuant to such regulations. The Service MBTA "policy" and Directive is a deliberate violation of the agencies "duty to conserve" and the Administrative Procedures Act.
There is a need for the MSCP/ITP and Agreements to identify all migratory species that are known and expected to occur within and adjacent to the Planning Area(s). Again, the Program, Reports, Plans and Agreements should account not only for nesting areas but for migratory fly ways and habitat that is used during migration. Migratory habitats (stop-overs) may be as equally essential to the species conservation as is nesting habitat. The MSCP/ITP and Agreements documents must provide a list of all migratory species that may be found in the areas proposed to be taken by associated development (direct, indirect and cumulative) and the areas that will be conserved, including the size of these areas by acre. The MSCP/ITP and Agreements maps need to adequately identify essential habitat for migratory species.
Because the MBTA supersedes the regulatory provisions of the ESA, by mandating greater protection of migratory species, the EIS and IA should clearly identify the species specific monitoring and management plans to be implemented that will appropriately conserve the species.
Additionally, the proposed MSCP/ITP, Agreements and EIR/EIS is required to adequately identify the methods and precautionary steps that associated development will implement to avoid the "take" of migratory birds and their nesting habitat, pursuant the MBTA. The EIR/EIS documents also need to identify the mitigation ratios for the take of habitats utilized by migratory birds and other species for foraging. In association with the conservation needs of migratory species. The EIS should identify the "net losses" and whether or not the mitigation for habitat and lost values is adequately replaced by additional "in-kind" and "higher quality" habitat, including whether the replacement habitat is also "occupied habitat". Thus explaining species population densities and viability for future occupation by displaced species in established territories, including foraging capabilities.
"The Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703-712) prohibits the take of migratory birds, including any species also listed under the ESA. None of the regulations promulgated under the MBTA expressly provide for permits for incidental take. Likewise, the Bald and Golden Eagle Protection Act of 1940, as amended (16 U.S.C. §§ 668-668d), prohibits the taking of bald and golden eagles. The regulations promulgated under the BGEPA do not allow for permits to be issued for incidental take of eagles." (FWS Memorandum to Regional Offices, 2/9/96, emphasis added)
Here again, the Service implements a national "policy" that is not in compliance with applicable regulations. The Service projects that inclusion in the "HCP Handbook" will suffice.
However, the Service is without Congressional authority to make such changes to the Code of Federal Regulations. The Service's Solicitor provided the Secretary and Director with an "opinion" and "suggestion" on how to side-step the restrictions on the take and killing of migratory birds and bald and golden eagles, of which the Acting Director, John Rogers, determined to adopt. The Regional Directors received a Memorandum from the Acting Director that recommends and encourages that the regional offices and field offices use deceptive language in order to permit the "incidental take" of fully protected species and endangered species, that basically contracts the agency not to enforce the MBTA and BGEPA, in violation of these CFRs and the APA. The Service has determined that since the ESA is less restrictive than the MBTA and BGEPA and that Regional Offices could possibly issue "Incidental Take Permits" on migratory birds and eagles.
We possess a copy of the above referenced Memorandums, (that are now incorporated by reference into the MSCP/ITP and Agreements Administrative Record) which we believe to show the extent of deception and lengths that the Department of the Interior, Fish & Wildlife Service will take to undermine the protection of migratory birds and eagles, in violation of regulations and public trust. Not only is the Eagle a symbol of the United States of America, the Eagle is also believed to be the sacred messenger of the Great Spirit who created (Creator) of the Earth and all species. We and the people of the United States of America, including First Nations indigenous people, are personally injured by the implementation of the agency "policies".
The courts have upheld the MBTA, and the publics right to legally challenge agencies negligence of enforcement via the APA, granting preliminary injunctive relief to plaintiffs and species.( Sierra Club; The Wilderness Society; Georgia Forestwatch, Inc.; The Amurchee Alliance; The Rabun County Coalition To Save The Forest, Inc.; and Friends Of Georgia, Inc., v. George Martin, Forest Supervisor of the Chattahoochee and Oconee National Forest; Robert C. Joslin, Regional Forester of the United States Forest Service for Regional Eight; and United States Forest Service, Civil Action No. 1:96-CV-926-FMH, U.S. Dist. Ct. No. Dist. of GA, Atlanta Division, May 8, 1996 at 3:55, District Judge Frank M. Hull.)
It is our understanding that the Court has found that it is the responsibility of the Department of the Interior, Fish & Wildlife Service, as the lead agency, to implement and enforce the MBTA.
The Court has found that a taking or killing does not occur simply because of habitat destruction or modification (See Seattle Audubon Society v. Robertson, 1991 WL 180099 (W.D. Wash. 1991), aff'd sub nom Seattle Audubon Society v. Evans, 952 F. 2d 297 (9th Cir. 1991)). In this case however, a killing of young migratory birds occurs because the FWS, plan proponents are allowing habitat removal and destruction during nesting season. Furthermore, the plan "may effect" other species including migratory birds through the issuance "Incidental Take" permits and IA. (See Sierra Club v. United States Dep't of Agriculture, No. 94-CV-4061-JPG (S.D. Ill. Sept. 25, 1995)) finding that logging (in this case removal of vegetation) during nesting season created a logical assumption that migratory birds would be killed and, thus, violated the MBTA); United States v. Durst, 726 F. Supp. 286 (D.Kan. 1989); United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978) (killing migratory birds by toxic and noxious waters violated MBTA); United States v. Corbin Farm case, the district court found that hunting migratory birds is not the sole concern of the MBTA, especially since song birds and other birds not commonly hunted are protected by the Act and since the Act refers to killing "by any means" as follows:
"It is undeniable that Congress was concerned with hunting and capturing migratory birds when it enacted the MBTA: the legislative history confirms this concern. The fact that Congress was primarily concerned with hunting does not, however, indicate that hunting was its sole concern. Pairing the language of §703 down to its essentials, the section makes it illegal to "in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell
or export, any migratory bird
"The use of the broad language "by any means or in any manner" belies the contention that Congress intended to limit the imposition of criminal penalties to those who hunted or captured migratory birds. Moreover, a number of song birds and other birds not commonly hunted are protected by the conventions and so by the Act." (Corbin Farm 444 F. Supp. at 532.)
The Court has also found that mitigation as a measure to "offset" impacts and taking and killing of migratory birds does not suffice. Directly on point, the decision of Sierra Club v. USDA, No. 94-CV-4061-JPG, (S.D. Ill. Sept. 25, 1995) case , one would simply assume that the Court would replace "Management Plan" with the "Habitat Conservation Plan" and "Natural Community Conservation Plan", when asked. There the Forest Service had set aside certain management areas in the Shawnee National Forest in Illinois and protected them from logging activities during the migratory bird nesting season. However, the Forest service had not prohibited logging in other areas, despite knowing that migratory birds were present there during the nesting season. The Court found that the plaintiffs had presented a "logical assumption" that forest interior birds "will be killed without "seasonal restrictions" on logging in the non-protected areas. It therefore remanded the matter to the Forest Service to address the issue of whether its Management Plan would violate the MBTA by allowing logging, i.e., the killing of migratory birds, during the nesting season.
Because the MBTA does not provide for the issuance of ITPs, but requires the higher "avoidance" of "take" for conservation standards, the Applicants HCP IA and proposed ITPs may be considered unlawful. The Service is aware that the MBTA supersedes the ESA and even more specifically section 10 as stated in the 2/9/96 Memorandum from USFWS Acting Director, John Rogers to Regional Directors, "None of the regulations promulgated under the MBTA expressly provide for permits for incidental take." Prior to this Memo was another by Acting Solicitor, Pete Raynor to Acting Director, John Rogers on 2/5/96, that stated ,
"Currently, ESA incidental take documents do not provide any relief from the prohibitions of the MBTA and BGEPA; indeed, some of those documents specifically state that they do not provide any such relief. Therefore, an applicant that wants complete protection from prosecution for the take of an ESA-listed migratory bird pursuant to an ESA incidental take document must also seek a permit under the MBTA, or if that bird is a bald eagle, the BGEPA. However, no such permit is currently available under the BGEPA, and § 21.27 under the MBTA has not traditionally been used to provide permits for unintentional take. Thus, applicants in the past have not been provided with assurance that they would not be prosecuted under the MBTA or BGEPA." (Emphasis added).
Knowing the regulatory restrictions and requirements of the MBTA and BGEPA, the Service makes a mockery of the law and willing abets the violation of the MBTA, BGEPA, ESA, NEPA and APA by negotiating the law with the MSCP permit applicant(s) and other government agencies. In taking such actions the lead public trust agency clearly fails to enforce the regulations or further the goals of the ESA for conservation purposes. This failure and refusal to enforce the more restrictive conservation provisions of the MBTA and BGEPA may also be considered criminal "scheming". See 18 U.S.C. § 1001.
"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000.00 or imprisoned not more than five years, or both." (emphasis added)
The Sage Council formally objects to and "criticizes" the application and implementation of such Service "policies" that effect migratory birds. The Sage Council recommends that the Service, CDFG and County remove all migratory species from the MSCP/ITP and Agreements and make appropriate amendments that shall provide conservation assurances to these species that all approved and future developments shall avoid "take "of the species and their essential nesting and foraging habitats.
- The MSCP/ITP and Agreements should clearly state that the take of migratory bird species is strictly prohibited. The Service should deny all "incidental take permits" or "special purpose permit" applications and "authorizations" for these species.
- Take should not be authorized to non-participating landholders until they have approved mitigation plans. These mitigation plans should be required to emphasize the acquisitions of the many holes and gaps in the high value areas that will be left by this MSCP. The Service must have final approval of the dispersal of funds.
- Take of habitat or gnatcatchers, or other listed species, must not be authorized in the connecting corridors between the North County MHCP Subregion and Countywide MSCP Subregions and Riverside County.
- The Service must retain the final approval of the fire management plan, recreation plan, grazing management plan, adaptive management plan and any other plans associated with the MSCP.
- Prior to approving the MSCP EIR/EIS, IA, take authorization statements and issuance of incidental take permits or authorizations, the Service needs to analyze and consider the effects of having private development mitigate impacts almost solely on public property. Although existing public property forms a foundation upon which an adequate Reserve design is built it was never intended to provide adequate protection and connectivity for entire ecosystems as their location and configuration were not designed with that goal in mind nor was it the purpose of these properties in the first place. Substantial privately held contributions are necessary and appropriate if adequate reserves are the goal.
- As proposed the MSCP is only marginally adequate. The Service needs to make sure that future permit actions within the region don't further compromise the Reserve design and should direct mitigation so as to improve the current design. This is necessary to reduce the extent of take, minimize development impacts, mitigate for the remaining impacts by acquiring unprotected habitat, reduce fragmentation, and to provide some connectivity.
- The Service must use all methods and procedures to acquire and encourage local acquisition of all the remaining high quality habitat areas within the MSCP planning area, and avoid replicating the inappropriate decisions that have previously been made in Orange County where almost 1/4 of the high quality habitat in the Central/Coastal Subregion was excluded and proposed to be impacted. (Burns, J., USFWS 1-6-96-FW-24, April 16, 1996 Draft). The Service was aware that the Tustin Ranch habitat area should have been acquired and protected for conservation purposes.
- The primary purpose of the MSCP Reserves, species specific biological conservation, should not be compromised by secondary uses. Further reductions in size of the High Quality CSS areas as proposed by this HCP and MSCP, particularly for developments that could not be considered essential (i.e. , golf courses and recreation facilities) would be neither appropriate nor consistent with the basic tenets of conservation biology let alone the NCCP Conservation Guidelines.
The Service's Joint August 11, 1994 Announcement of Their New "No Surprises" Policy The Services Joint May 28, 1997 Proposed No Surprises Rule.
"Federal Agencies have neither the power nor the competence to pass on constitutionality of administrative or legislative action." Murray v. Vaughn, D.C. R.I., 1969, 300 F.Supp. 688. (emphasis added)
The Sage Council has long-standing objections on record with the Service in regards to the "No Surprises" policy and others. These policies, more specifically, the No Surprises policy has been opposed by the country's leading conservation biologists and scientists because the policies are not based on ecological realities and reject best scientific practices. The Sage Council requests that the County, Permit Applicants, Service, and CDFG as public trust agencies remove the existing policy language in the MSCP documents and cease and desist from utilizing these policies any further. (See the white paper "Science Missing In The No Surprises Policy," and scientific group sign-on letter (Smallwood, S., 1997) and Meffe 1996 and 1997.)
The Sage Council rightfully assumes that the Permit Applicant is aware of the controversial "No Surprises" policy and proposed rule making. The Sage Council has provided previous comments and objections to the implementation of the "policy" in HCP/ITPs without adequate consideration and response from the Service.
As lead plaintiff in the legal challenge to the "No Surprises" policy and Stipulated Settlement Agreement (Spirit of the Sage Council, et al. v. Babbitt, Secretary, et al.) the Sage Council recommends that the Service withhold the approval of the referenced Permit Application and/or adoption of the associated HCP and IA. It would be counterproductive of the Service to approve a Permit Application, HCP and IA as it is currently presented in the Federal Register Notice and HCP Handbook. The Service's approval of Permits, Plans and Agreements that contain the "No Surprises" or "Assurances" language may likely place the public trust Agency and MSCP Permit Applicants in legal jeopardy. The Service has implemented the "No Surprises" policy as a rule without discrimination of species specific risk analysis and recovery needs in San Diego and other areas.
The Sage Council has incorporated by reference into the Administrative Record, for the proposed MHCP and ITP Application, the following legal and biological literature references in regards to the "No Surprises" policy and others
- The July 22, 1996, "Meffe" scientific group letter to Senator John Chafee and Congressman James Saxton, and U.S. Fish & Wildlife Service in 1997, includes the opinions of 164 premier biologists who unanimously stated that the No Surprises approach to HCPs "does not reflect ecological reality and rejects the best scientific knowledge and judgment of our era."
- The February 20, 1997, environmental group letter to Secretary Babbitt is from sixteen national conservation organizations, including Sierra Club, National Audubon Society, Defenders of Wildlife and the Endangered Species Coalition, in support of the Spirit of the Sage Council's APA legal challenge of the No Surprises policy.
- The white paper "Science Missing In The No Surprises Policy," and scientific group sign-on letter (Smallwood, S., 1997) by over 170 scientists that oppose the No Surprises policy and proposed rule, including the draft Safe Harbor policy --for "enhancement of survival permits," species translocation, amendments to other regulations and conventions -- the Safe Harbor policy, draft Candidate Conservation Agreements, and
- The publications entitled, "Surprises Inherent in the No Surprises Policy" by Kimberley K. Walley, Endangered Species UPDATE, October/November 1996, Vol. 13 Nos. 10 & 11.
As previously stated by Kim Walley, Esq., Meyer & Glitzenstein,to the Services on behalf of the Sage Council, " On August 11, 1994, following on the heels of the ESA section 4(d) rule making for the California gnatcatcher and the NCCP Program, that included "certainties for private landowners", the Department of the Interior and Department of Commerce jointly issued a new "policy" entitled "No Surprises; Assuring Certainty For Private Landowners In Endangered Species Act Habitat Conservation Planning" (the "No Surprises" policy) which significantly revised the rules regarding habitat conservation planning under the ESA. This revision was made effective immediately and promulgated without any prior public notice and comment. The Services have also failed to publish this policy in the Federal Register, although it is routinely applied to HCPs.
Under the "No Surprises" policy, in negotiating the "unforeseen circumstances" provisions for HCPs, the Services must provide landowners with the following, "General Assurances." First, after an HCP has been approved and an ITP has been issued, the Services cannot even contemplate any additional mitigation measures aimed at conserving endangered or threatened species until they have demonstrated that "extraordinary circumstances" exist that warrant such additional protection.
Second, even if "extraordinary circumstances" are shown to exist, the Services "shall not seek additional mitigation for a species from an HCP permittee where the terms of a properly functioning HCP agreement were designed to provide an overall net benefit for that particular species and contained measurable criteria for the biological success of the HCP which have been or are being met." Rather, "the primary obligation for such measures" will rest with the Services, "not with the HCP permittee."
Finally, even in "extraordinary circumstances," all additional mitigation measures, "shall be limited to the original terms of the HCP to the maximum extent possible and shall be limited to modifications within Conserved Habitat areas or to the HCP's operating conservation program for the affected species." Any "[a]dditional mitigation requirements shall not involve the payment of additional compensation or apply to parcels of land available for the development or land management under the original terms of the HCP without the consent of the HCP permittee." (emphasis added).
Therefore, under this new approach to HCPs, if either (a) circumstances change for listed species which show that changes in the HCP are needed to conserve the species or (b) species which are not listed at the time of the HCP are subsequently listed and their habitat falls within the HCP area, the instances in which additional mitigation measures may be required, and the type of measures that may be implemented, are rendered virtually non-existent.
Under the policy, the Services bear the burden of demonstrating that "extraordinary circumstances" exist based on the following factors:
(1) size and current range of the affected species;
(2) percentage of range adversely affected by the HCP;
(3) percentage of range conserved by the HCP;
(4) ecological significance of that portion of the range affected by the HCP;
(5) level of knowledge about the affected species and the degree of specificity of the species conservation program under the HCP;
(6) whether the HCP was originally designed to provide an overall net benefit to the affected species and contained measurable criteria for assessing the biological success of the HCP; and
(7) whether failure to adopt additional conservation measure would appreciably reduce the likelihood of survival and recovery of the affected species in the wild. See id. The Services must use the best scientific and commercial data available and their findings must be clearly documented and based upon reliable technical information.
The No Surprises and Safe Harbor Policies Violates Sections 2, 7, and 10 of the ESA.
According to section 2 of the ESA, the purpose of the Act is "to provide a means whereby the ecosystem upon which the endangered and threatened species depend may be conserved...." 16 U.S.C. § 1531(b). Conservation is defined by the ESA as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary". Id. at § 1532(3)
Section 7(a)(1) requires that the Services "shall review other programs administered by [them] and utilize such programs in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species..." Id. at § 1536(a)(1). Thus, under section 7(a)(1), the Services "have [an] affirmative obligation to conserve" threatened and endangered species. (Pyramid Lake Paiute Tribe v. U.S. Dept. of Navy, 898 F.2d 1410, 1417 (9th Cir. 1990).
Under the "No Surprises" policy, the Services have severely limited both the instances in which they may prescribe additional mitigation measures for the conservation of endangered and threatened species and the types of mitigation measures they may prescribe. As discussed above, once a HCP is approved, and an ITP is issued, if the Services find that additional mitigation measures are required for the continued survival and recovery of an endangered or threatened species, the Services must bear the obligation of implementing those measures.
In addition, the mitigation measures must be limited to modifications within the Conserved Habitat areas or to the HCP's operating conservation program for the affected species, and such measures cannot result in the payment of additional compensation by the landowner, or apply to parcels of land available for development, or land management under the terms of the HCP without the consent of the HCP permittee. Thus, under this policy, if the Services find that a mitigation measure is contrary to any of the above-described limitations, the measures may not be implemented even if it deemed by biologists to be critical to the survival and recovery of the species.
NMFS "shall suggest those reasonable and prudent alternatives" which, if implemented, would not result in a violation of the ESA. 16 U.S.C. § 1536(b)(3)(B). Finally, if formal consultation has already occurred, bit new information is brought to light that "may effect listed species or critical habitat in a manner or to an extent not previously considered", or a "new species is listed or critical habitat is designated that may be affected by the identified action," section 7 consultation must be reinitiated.
Thus, any action that has undergone section 7 consultation and has been approved by the FWS may be re-examined if new information is brought to light, and new requirements may be put in place by the FWS to prevent "jeopardy" to the species in question.
But under the "No Surprises" and "Safe Harbor" approach, the Services are prohibiting any meaningful re-examination of the HCP by predetermining whether additional mitigation measures may be enacted in the first place and, if mitigation measures may be enacted, what kind of measures may be taken to conserve the species. Such an artificial narrowing of the scope of consultation violates the ESA's mandate that the Services "shall ... insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species..." 16 U.S.C. § 1536(a)(2) (emphasis added).
In fact, under the policy, if any new information arises that requires the Services to take another look at the HCP, the standard for re-evaluating the HCP and its accompanying biological opinion will not be that the Services shall insure that the action is not likely to jeopardize the species -- as required by the ESA. Rather, the standard will now be that the avoidance of jeopardy will be "assured" only where a landowner consents to the measures, methods or the Services have the funds to purchase the land in question.
In all other situations involving unforeseen circumstances -- i.e. the overwhelming majority of them -- the Services will have to allow the project or plan to continue, even if it jeopardizes the species. Thus, under this policy, since the Service can no longer "insure" that the HCPs that they approve are "not likely to jeopardize the continued existence" of a endangered or threatened species, the Services have violated the plain terms and clear purpose of section 7(a)(2) of the ESA.
BACKGROUND ON HABITAT CONSERVATION PLANNING
Under section 9 of the ESA, 16 U.S.C. § 1538(a)(1), it is illegal for anyone to "take" an endangered or threatened animal (50 C.F.R. §§ 17.21, 17.31). The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(1). Section 10 of the ESA contains an exception to this strict prohibition under which the Services "may permit, under such terms and conditions as [the Services] shall prescribe... any taking otherwise prohibited by section  "... if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. at § 1539(a)(1)(B). The permit is commonly referred to as an "incidental take permit" ("ITP").
Neither FWS nor NMFS may issue an ITP unless the applicant submits a conservation plan (known as a "Habitat Conservation Plan" or "HCP") which specifies:
(1) "the impact which will likely result from such taking;"
(2) "what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;
(3) "what alternative actions to such taking the applicant
considered and the reasons why such alternatives are not being utilized;" and
(4) "such other measures that the [Services] may require as being necessary or appropriate for purposes of the plan." Id. at § 1539(a)(2)(A).
The Services "shall issue the permit" if they find, after an opportunity for public comment on the ITP application and the related HCP, that
(1) "the taking will be incidental;"
(2) "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;"
(3) "the applicant will ensure that adequate funding for the plan will be provided;"
(4) "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;"
(5) "the measures, if any, required by the Services as necessary or appropriate, "will be met;" and
(6) the Services have "received such other assurances as [they] may require that the plan will be implemented." Id. at § 1539(a)(2)(B); see also 50 C.F.R. §§ 17.22, 17.32.
In enacting section 10 of the ESA, Congress modeled section 10 "after a habitat conservation plan developed by three Northern California cities, the County of San Mateo, and private landowners and developers to provide for the conservation of the habitat of three endangered species and other species of concern within the San Bruno Mountain area of San Mateo County." Id. at 31.
Congress focused on four main elements of this plan -- known as the San Bruno HCP -- when it enacted section 10. Id.
These elements are as follows;
(1) the HCP protected " in perpetuity at least 87 percent of the habitat of the listed" species;
(2) the plan established a funding program which provided "permanent on- going funding;"
(3) the plan established "a permanent institutional structure to insure uniform protection and conservation of the habitat throughout the area;" and
(4) there was "a formal agreement between the parties to the plan which ensure[d] that all elements of the plan will be implemented." H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32 (1982) (emphasis added).
The only way for the FWS to circumvent these restrictions on mitigation measures is by buying the land in question from the landowner. However, the purchase of the lands/habitats, especially lands that are attractive to developers is extremely costly. The Services have not offered a guarantee in the "No Surprises" or "Safe Harbor" policies, or anywhere else, that adequate funding will be available to purchase these lands/habitats. Indeed, in light of budget constraints, and Congressional Appropriations for DOI FWS being severely cut back, such a guarantee is unlikely to be forthcoming any time in the foreseeable future.
Congress also recognized the need for HCPs to accommodate "unforeseen circumstances." Id. at 31. Indeed Congress stated that it "expect[ed] that any plan approved for a long-term permit will contain a procedure by which the parties will deal with unforeseen circumstances." Id. In accordance with the intent, both the FWS and NMFS regulations expressly provide for modifications of HCPs in appropriate circumstances. Thus, the FWS regulations contain a provision which requires the "[i]ncorporation of modification procedures into a conservation plan." 50 Fed. Reg. 39681, 39684 (September 30, 1985). According to the FWS, modification procedures are important because they will "ensure both that the effected species will be conserved regardless of changed circumstances and that the applicant's activities are not unduly interrupted when the new conditions take effect." Id. Thus, under the regulations, HCPs must include specific measures for addressing unforeseen circumstances before a permit may be issued by the FWS. 50 C.F.R. §§ 17.22(b), 17.32(b). (emphasis added)
Finally, since the decision to issue an ITP is an "action authorized by a Federal agency," the FWS requires all section 10, ITPs to be subject to section 7 consultation. 50 Fed. Reg. at 39683; (see also Id., citing H.R. No. 835, 97th Cong., 2nd Sess. 29-30 "Congress expressly linked [ITPs] with the consultation requirement by including one of the section 7(a)(2) standards as a necessary criterion for issuing an [ITP]'). Thus, accordingly to the FWS, "section 10(a) reinforces the consultation requirement with respect to [ITPs] by requiring a non-jeopardy finding (or a jeopardy finding with reasonable and prudent alternatives that are implemented by the Federal agency or applicant) as a precondition to issuance of a permit." 50 Fed. Reg.
While Section 10 requires an ITP only for the "taking" of endangered species, the FWS has extended the ITP requirement to encompass threatened species. 50 C.F.R. § 17.32. NMFS, on the other hand, has not extended this requirement to threatened species. Instead, the 5 species listed by NMFS as threatened are protected by special regulations implemented under section 4(d) of the ESA, 16 U.S.C. § 1533(d). See 50 C.F.R. part 227. at 39683.
Section 10 of the ESA
As discussed above, an Incidental Take Permit (ITP), and its accompanying HCP, may not be approved and issued until the Services find that, among other things, the "conservation plan specifies the impact which will likely result from such taking, what steps the applicant will take to minimize and mitigate the impacts, what other alternatives were analyzed that would not result in the takings, and why those alternatives were not adopted." H.R. Rep. No. 835, 97th Cong., 2d Sess 29 (1982); (see also 16 U.S.C. § 1539(a)(2)(B) "the applicant will to the maximum extent practicable, minimize and mitigate the impacts of such taking").
In addition, under section 10, the Services "will base ( their ) determinations as to whether or not to grant the permit, in part, by using the same standards as found in section 7(a)(2) of the ESA "... that is, whether the taking will appreciably reduce the likelihood of the survival and recovery of the species in the wild".
A mandatory element of a conservation plan to accurately assess each ITP application for certain detailed information of the "impacts likely to result from the proposed taking of one or more federally listed, wildlife species", and the completion of "three critical subtasks". (See 50 CFR § 17.22(b)(iii). Accordingly, the applicant must collate and synthesize all biological data through the direction of the Services).
The applicant may not conclude whether there is enough existing data or whether additional studies need to be performed. However, the Services "will indicate whether the biological data are adequate to proceed..." and "at a minimum, the scope must include all federally listed, endangered or threatened species occurring in the planning area", including plants. Congress intended that the approval of a conservation plan must provide for both listed and unlisted "as if they were listed pursuant to the Act". (ESA) To insure that both listed and unlisted species would be protected in the long-term, the requirement of the applicant to fund the conservation plan is also insured by the establishment of mechanisms, "including penalties for failure to meet funding obligations by signatory members."
As for species that are proposed for listing after a HCP is approved, it is especially hard to imagine how the Services will be able to "ensure" that the actions approved in an HCP will not "jeopardize the continued existence" of those species. (16 U.S.C. 1536(b)(2)). For instance, the FWS and permit applicants have not compiled in-depth information what is required to conserve each and every species "identified" and unidentified for incidental and future "take," or "covered" under an HCP. The proposed Application for a HCP/ITP exemplifies this failure in the proposal to perform future studies, experimental revegetation/reforestation and translocation of listed species.
Biological surveys and studies are usually collected during the listing process -- which, for unlisted species, will be conducted after the HCP has been approved and the Services have "assured" the landowners that no additional mitigation measures will be required. Thus, without this critical information, it is extremely unlikely that the Services will be able to evaluate thoroughly the effects of an HCP/ITP on unlisted species and thus assure that these species will always be adequately protected by the plan.
The "No Surprises" policy, violates all of these requirements. First, section 10 requires that an HCP "applicant will, to the maximum extent practicable, minimize and mitigate the impacts" of the taking, 16 U.S.C. § 1539 (a)(2)(B), under the policy, after an HCP has been approved, the applicant no longer bears the burden of "minimiz[ing] and mitigat[ing] the impacts" of the taking "to the maximum extent possible." Instead, the Services must bear this burden. Second, as discussed above, since section 10 incorporates the substantive standard from section 7(a)(2) of the ESA, the policy necessarily violates section 10 of the ESA for that reason as well.
Furthermore, the Service must insure funding by the applicant or include penalties for failure to fund and carry out the plan successfully, the "No Surprises" policy shifts this burden onto the public via the Services to rectify. Restricted from amending the HCP/ITP and IA from utilizing "all methods" and correcting "agency actions", the Services are also restricted from implementing "recovery plans" for the identified and unidentified species effected. Again, the Services have reversed the intent of the section 10 regulations, that requires that HCPs "compliment" a "recovery plan" -- leaning on the recovery of a species. Through the implementation of the "No Surprises" policy and "Assurances" language strategies the future "recovery plan" would have to be consistent with the approved HCP and IA. Any additional needs for species' recovery ( e.g. habitat, buffers or movement corridors) would have to be mitigated by the Services, who would be forced to bear the burden of the costs, rather than the ITP applicant.
Apparently, the Services have agreed to bear the burden of the costs without assurance of adequate budgetary appropriations from Congress. Thus, placing the identified and unidentified species' survival and recovery in risk of danger, in violation of the Services "duty to conserve."
In addition to violating the plain language of section 10 of the ESA, the Service policies, the MSCP "public policies" also contravenes the purpose of the provision. When Congress enacted section 10, it did not envision such limitations on the contents of HCPs. For instance, the San Bruno HCP, which served as Congress' model, allowed the implementation of additional mitigation measures, regardless of what the landowner/applicant and participants wanted, in almost 90% of the habitat was to be provided in the plan. Under the policies and proposed rule, if an HCP only protects 20% of the species habitat in "Conserved Areas", then additional mitigation measures will not be allowed (unless the land holder or permittee agrees) in the remaining 80% of the habitat.
When Congress enacted section 10, it envisioned that the HCPs would "enhance the habitat of the listed species or increase the long-term survivability of the species or its ecosystem." H.R. Rep. No. 835, 97th Cong., 2nd Sess. 31 (1982). Now, under the policy, Plan and Agreement, the goal of "increas[ing] the long-term survivability" of a species and its ecosystem has been abandoned in favor of providing landowner/developers with a fixed plan that can only be revised if the landowner consents or is paid off by the Services. Thus, instead of the interests of the non-federal land holders are now driving the process.
As a related proposition, the policies also undermines the right of effected individuals and conservation groups to comment on whether, and under what circumstances, an HCP/ITP will be issued. (See 16 U.S.C. § 1539(c)).
Since the policies (which were was issued without proper notice or comment) provides that "No Surprises" and "Safe Harbor" guarantees will be included in every HCP, regardless of circumstances, it effectively forecloses the public's ability to "comment" on whether such a guarantee is biologically advisable and damaging in any particular circumstance, e.g. When Spirit of the Sage Council has criticized the application of the "No Surprises" policy and others to the City of Colton HCP/ITP, CA., Central/Coastal Orange County HCP/ITP and NCCP, CA., Riverside County MSHCP/ITP, CA., San Bernardino Valley-wide MSHCP/ITP MOU, CA., City of San Diego MSCP/ITP and IA, the Friendfield Plantation HCP/ITP and now the proposed North County MHCP Agreements, as restricting the Services "no jeopardy" duty under section 7 of the ESA, the Services have responded by summarily stating that the HCP accurately reflects the Service's new policy.
Indeed, even from the agencies' standpoint in implementing section 10, it is impossible to comprehend why the agencies have not at least retained the regulatory flexibility to determine, on a case by case basis, whether a "No Surprises" and "Safe Harbor" guarantee will further the purposes of the ESA in any particular instance. Instead, the agencies have, in effect, "shown their cards" before even entering into negotiations with those wishing to "take" endangered or threatened species.
In other words the "No Surprises" and "Safe Harbor" policies (proposed rules) forfeits the use of "all methods" to secure better conservation commitments, because it mandates that all landowners/participants will have the benefit of assurances irrespective of conservation commitments they are willing to make. The Services have not provided any scientific data to indicate otherwise, only political rhetoric.
Hence, the policies not only forecloses case-by-case public input into the degree to which the proposed MSCP/ITP and Agreements should be susceptible to new mitigation measures, but it irrationally ties the hands of the agencies' own biologists and other officials in negotiating meaningful, biologically sound HCPs. Therefore, in light of the above, the Services imposition of such limitations on the contents of HCPs, through the implementation of these policies, violates both the letter and spirit of the ESA and Section 10.
MSCP/ITP and Agreement Funding
It appears to the Sage Council that the proposed MSCP/ITP and Agreements is currently without a solid, certain or guaranteed source of funding for its complete and successful implementation, including acquisition of appropriate habitats, monitoring and long-term management of specific species. It is legally questionable whether the local, state and federal agencies should be including public funds and public lands for the development and implementation of the proposed MSCP/ITP and Agreements.
Whether in part or in full, the incidental take permit recipients and "beneficiaries" are the responsible parties. Although local government agencies are the ITP applicants, and are acting as brokers for "Third Party Beneficiaries" that include private profit entities and persons, it does not negate the fact that private development interests are required to carry the burden of cost for ITPs and the successful development and implementation of an HCP.
It appears that private developments interest have shifted the burden of cost to the public, thereby "taking" public trust resources and public funds for private profit.
Again, the Sage Council objects to this development planning scheme because it causes a further decline in T&E species populations and decrease in the current habitat spatial area. Thus failing to provide for the conservation of the species.
To ensure the long-term conservation of the species and habitats, the lead public trust agencies are required to ensure that long-term funding is readily available. The proposed MSCP/ITP and Agreements cannot be divided into two programs or plans, one "short-term" and the other "long-term," nor should these plans be only conceptual. The length of time for the ITPs must be equivalent to the amount of funding readily available to successfully implement the plan. The costs associated with the MSCP/ITP and Agreements must consider and include the management of specific species and habitats, especially in the case of "unforeseen circumstances" or "extraordinary circumstances."
- The Sage Council strongly opposes the public funding of a "conservation plan" that includes the "take" of listed T&E species. Public funds should only be utilized for the acquisition of T&E species habitat above and beyond mitigation for "incidental take." Those individuals and entities that expect to profit from the destruction of habitat and "take" of listed T&E species should be required to fund in full their own development projects, including EIRs and biological surveys/studies.
- The Sage Council strongly opposes public trusts agencies actions as "brokers" of ITPs and HCP/NCCPs for private land holders.
Recovery of Listed Species
Although Section 10 of the ESA does not specifically call out the requirement of species recovery in HCPs, the Supreme Court has found in TVA v. Hill and Babbitt v. Sweet Home that the goal of the ESA is "to halt and reverse the trend towards species extinction, whatever the cost" and that "This is effectuated not only in the stated policies of the Act, but in literally every section of the statute."
In addition, the court has found in Save Our Springs Alliance v. Babbitt, Secretary, that "individuals charged with the administration of the Act do not have the legal authority to weight the political importance of the species." Therefore, the County, Permit Applicants, CDFG and the Service do
not have the ability to pick and choose which species shall be "targeted," "covered" or identified on your list of "priority species." All state or federally listed T&E species are priority species and require conservation provisions. Unlisted species that are included in the MHCP planning area that are subject to Take Authorizations and Pre-listing Agreements must also be ensured conservation, and treated as if listed. Therefore all listed and unlisted species within the MHCP planning area must be provided conservation assurances, including recovery.
- The Sage Council requests that the County, Permit Applicants, Service and CDFG provide a "scenario" and Alternative to the "taking" of the species that would "halt and reverse" the decline of the species and provide for the recovery (increase) of the current species population in numbers and range or distribution (habitat spatial area).
- The Sage Council requests a copy of the Services approved recovery plans for each of the listed species occurring within the MSCP planning area. In addition, we request that the MSCP be consistent with approved recovery plans, and not visa versa.
The reduction of habitat through fragmentation and insularization is a leading cause of the species decline, extirpation and threat of extinction. Certainly if not "precluding recovery," the lead agencies are placing the species and subpopulations in further risk of decline.
The Service is mandated to provide all "available conservation measures" to threatened and endangered species, and in developing and implementing recovery plans, the Secretary is to give priority to those species most likely to benefit from the plan, particularly species that will or may be harmed by development projects or other economic activity. 16 U.S.C. § 1533(f)(1)(A).
Regulatory conservation measures provided to listed and unlisted species, identified or effected by a HCPs, including:
1) Recognition - Listing,
2) Requirements for Federal Protection - Designation of Critical Habitat that shall not be destroyed or adversely modified, and avoidance of take.
3) Recovery Actions - Land acquisitions, conservation easements, reintroduction of species, enhancement of degraded habitat,
4) Prohibitions against certain activities
To "halt" the trend towards species extinction may further be defined as providing "survival" measures to those species populations, sub-populations and occurrences identified at the time of listing. It is of our opinion that "survival" of the species and standards does not mean that there shall be an incremental and cumulative "incidental take" of the species until one "viable" sub-population or occurrence remains in the wild.
The incremental loss of habitat and "interim take" of a listed species does not "halt" or "reverse" the trend towards extinction, but encourages a continued decline in the species population and bankrupting a geographical distributional gene pool, therefore defeating the primary goal of the ESA.
The MSCP/ITP and Agreements preclude recovery of the species through the drafted and approved public policies and documents that implements Safe Harbor, No Surprises and Candidate Conservation Agreements (CCA), prior to official rule making (62 FR No. 103.,pp.29091-29098, and 62 FR No. 113, pp.32178 -32194).
Thus, the proposed MHCP essentially permits the incremental destruction of habitat and take of federally listed and unlisted species, prior to ensuring scientifically sound conservation provisions in perpetuity. Furthermore, the MSCP and associated documents are not consistent with 50 CFR Part 17, and 50 CFR Part 222, or NEPA 516 DM 2, Appendix 1.10. and does not qualify for a categorical exclusion, including NOAA 216-3.
The implementation of "Safe Harbor," "No Surprises" and "CCA" development assurances to land holders, prior to a published final "rule making", is considered an abuse of discretion by the Service, SANDAG and other public trust agencies, by skipping important procedural steps in the administration of the ESA. Dismissing the requirement to ensure the scientifically sound administrative implementation of the ESA is interpreted by the Sage Council as "arbitrary and capricious" in failing to use "the best scientific and commercial data" on which to base biological opinions and conclusions
Habitat and Planning Area Fragmentation
Isolation of species and habitats are also known to cause decline in species populations. Fragmentation of habitats on the sites as well as adjacent and bioregionally will also reduce the likelihood of species "recovery". Published scientific studies have demonstrated that isolation will lead to local species extinction and places those species that are considered rare in a vulnerable position. Again, it the MSCP/ITP, EIR/EIS and Agreements must demonstrate how the species will increase in numbers and not cause a "net loss" to existing spatial area and distribution of habitats.
Inconsistencies in data collection and incomplete data analysis' prevent further quantification of population estimates in terms of individuals or pairs of the priority listed species. However, reliable population estimates are needed to accurately determine areas of habitat usage, project impacts, populations where numbers are naturally/unnaturally depressed, areas where enhancement or restoration should occur, whether or not the proposed HCP preserve design is functional, etc..
- Please explain why the local California Indian Tribes have not been included in the MSCP planning process? Although the proposed MSCP area does not include Indian Reservation, the lands within the planning area are historically ancestral territories and may secure important prehistoric archeological sites, burials, ceremonial grounds and village sites.
- The MHCP needs to adequately address environmental injustice issues pertaining to cultural resources of State recognized tribes. The Service has been given a Presidential Executive Order and Order from the Secretary to include Tribes and Minorities in planning activities and decision making.
Cause of Injury
It is the responsibility of the local, state and federal public trust agencies to uphold and enforce the regulations that conserve public trust resources and lands. The proposed MSCP/ITP and Agreements appear to be in conflict with such public trust responsibilities and does not comply with the federal Endangered Species Act of 1973, as amended (ESA), National Environmental Protection Act (NEPA), Bald and Golden Eagle Protection Act of 1940, as amended (16 U.S.C. §§ 668-668d) (BGEPA), Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703-712) (MBTA), Administrative Procedures Act (5 U.S.C. § 706(2)(A))(APA), the Clean Water Act (CWA) and other regulations that protect public trust resources and individual rights.
The proposed rules (No Surprises and Safe Harbor), Plan, Permit Application, Agreement and policy implementation, fail to identify and scientifically substantiate the conservation "benefits" of the proposed MSCP/ITP and Agreements to "we the people" and the "public trust resources" (a.k.a. natural resources, native plants and wildlife) and endangered listed species. Corporations, corporate land holders and corporate persons (entities) shall not cause harm to "we the people," public or public trust resources and trust lands in performing business activities, pursuant to the privilege of holding a corporate charter. It is a "privilege," but not a "Right," to hold deed and title to land in the United States, especially when the land holder is not a human being but a "corporation." It is through the "innumerable rights" that are reserved to "the people" that also ensures that corporate persons and corporate privileges do not cause harm to the people, public trust resources and public trust lands.
In closing, we thank you for your consideration of our comments. The Sage Council looks forward to a speedy resolve of the issues raised and a timely written response. If the we may be of any additional service please contact Leeona Klippstein @ (909) 422-1637.
For the Earth,
Leeona Klippstein, Co-founder
Spirit of the Sage Council
* Attachment of Literature References included
cc: Eric Glitzenstein, Esq.
Meyer & Glitzenstein, Washington, D.C.
National Endangered Species Network, CA.
Biodiversity Legal Foundation, CO.
Ron Remple, CDFG NCCP
c/o Bill Tippets