State Endangered Species Act at Risk

by Philip E. Daoust

	Despite a recent court ruling in favor of protecting California's endangered species, there may be a show-down in the courts and the California assembly in coming months which could determine the fate of some of the state's plant and animal species. Last month, San Francisco Superior Court Judge William Cahill ruled that Governor Wilson's five-year order to exempt the California Endangered Species Act during floods and other emergencies was illegal. Cahill said that the state "exceeded its authority" in issuing the permit and declared that there is no exemption for emergencies in CESA which gives the governor the right to extend the suspensions for a period of five years. Wilson issued the order last March following devastating floods in Northern California, saying that he wanted to help landowners protect their property from unnecessary damage. Fires, earthquakes, and even riots were also included in the declaration. Certain provisions in the act prevented some landowners, Wilson argued, from protecting their property because they could be liable for altering the habitat of a threatened or endangered species under state law. The governor made clear his dissatisfaction with Cahill's decision in a statement released shortly after the ruling. "I am extremely disappointed" that the judge "invalidated our common-sense attempt to ease the restrictions of the [act]." The governor and the state Department of Fish and Game have until March 17 to file an appeal. "The governor hasn't declared yet if he will go ahead with an appeal," Wilson's deputy resources press secretary, Andy McLeod, said.
Environmental organizations and opponents are setting up for a battle in Sacramento on CESA	If an appeal is filed, it would mean that Wilson's order is technically invalid during the length of the case, perhaps a year, McLeod said. "I think they are going to appeal," Felix Arteaga, assistant chief for the DFG's natural heritage division. "As far as we know, until we get specific instructions, we are still following the guidelines," he said. Lawyers representing environmental groups that filed the lawsuit against the governor and the DFG last year said they are prepared for an appeal. "But I doubt they would appeal," said Bill Yeates, a Sierra Club lawyer who litigated the case in San Francisco. "Given the confidence of the judge's ruling, I would be surprised. "We would respond if they did decide to challenge the ruling," Yeates said. Yeates said that the governor made the order after erroneous reports circulated that the protection of an endangered salamander delayed levee repair along the flooded Pajaro River in Santa Cruz County, causing some landowners more damage to their property. However, according to Yeates, the salamander does not even live in the area. "They seized upon the public outrage at the time," he said, "this was a perfectly orchestrated effort by Fish and Game to find ways around the law instead of enforcing it." A coalition of 13 environmental groups signed onto the case last year, including the Natural Resources Defense Council, California Association of Professional Scientists and the California Native Plant Society. While state laws gives the governor the right to suspend certain laws, including the CESA, during a state of emergency, it does not allow for extending the suspensions beyond the emergency period. "The permit went far beyond what is reasonable and the governor went far beyond his authority under the law," Linda Barr, a legal representative for the Sierra Club, said. But McLeod argues that the federal Endangered Species Act already protects many species in California and that the state act causes an extra burden for landowners during emergencies. "In the year that [the order] has been on the books, not one person has applied for a permit," McLeod added. State laws presently list nearly 75 animals and more than 200 plants as threatened or endangered which are not protected under the federal laws. They include the Swainson hawk, greater sandhill crane and the yellow-billed cuckoo. Environmental organizations and opposing interest groups, such as the timber industry, are setting up for a battle in Sacramento on the CESA, according to Darryl Young, a legislative representative for Senator Tom Hayden (D-Los Angeles). Hayden is leading the fight in the state legislature to keep the CESA intact. "We are anticipating more bills that will attempt to make it more difficult to protect endangered species," Young said. "Obviously, the governor has to keep his campaign contributors happy." One such bill, AB 137, authored by Keith Olberg (D-Victorville), would block any more species from being added to the list of threatened and endangered species. Any additions to the CESA would have to be by a statue passed in the legislature, effectively removing the DFG from the listing process. The bill, if passed, would also require an economic assessment report that would have to demonstrate "benefits to be derived from the action exceed the estimated costs associated with protecting the species." Under Olberg's bill, no environmental impact report would be required to remove a species from the list and "just compensation" would be paid to landowners whose property has been declared protected for a species. "This is one of the best back door ways to gut the act," said Barr about Olberg's legislation and bills that are currently being drafted. Assembly members have until Feb. 23 to submit new bills.
"If they can't kill the act in the courts then they will try with legislation"	Another bill that has survived the legislative process so far this year, AB 350, proposed by assemblyman Cruz Bustamante (D-Fresno), would place a number of new requirements on the DFG in order to list a species as threatened or endangered. AB 350, if passed in its present form, would significantly weaken the DFG's authority to list new species and protect existing ones. It would also, according to Bustamante, "significantly expand mandated activities, and therefore, workload for the DFG" even though no additional funding would be allocated. In essence, the DFG would be substantially limited in its ability to get new cases of threatened and endangered species investigated and listed because the funds to carry out the mandates under AB 350 would not be made available. In fact, funding for DFG has already been cut back drastically in the past five years. "We have lost significant funding from our general fund," Arteaga said. "We don't have the manpower or the resources to do the job we should be doing." Arteaga said he also expects a big decrease in funds coming from Congress to protect endangered and threatened species. "If they can't kill the act in the courts," Young said, "then they will try with legislation and by giving less money to the DFG." But McLeod said that the governor wants to ease the burden on landowners, not to eliminate the protection of species. "Anyone who claims this is undermining the act is either ill-informed or intentionally engaging in hyperbole." McLeod said that the premise of the law should be to emphasize the protection of habitats and not species. A recent feud among the environmental lobby in Sacramento about what their strategy should be has caused some fracturing among groups. For example, the executive director for the Planning and Conservation League, Terry Meral, has said that the only way to save the entire act from possibly being gutted is to compromise with the Wilson administration. But other groups, like the Sierra Club, feel too much may be compromised. "We have been working on striking a deal between environmental, business and farming interests," Barr said, "but we are not going to allow the integrity of the [state endangered species] act to be dimished to nothing." Arteaga said he is concerned about the future of biodiversity. "Our state needs natural diversity. It's a moral imperative," he said. "It's our responsibility -- the public -- to protect our environment."

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