To many people, action and controversy regarding the federal Endangered Species Act is exemplified by the mighty polar bear and the much maligned wolf. But what about the Sonoma distinct population segment of the California tiger salamander, also called the Sonoma DPS? This species - or, more accurately, distinct population segment - may be the best example of the regulatory reach of the act. The Sonoma DPS of the California tiger salamander, and the related California tiger salamander populations in other parts of California, are slowly but surely creating their own version of "Bleak House" - Charles Dickens' mocking expose of England's Court of Chancery. The various California tiger salamander populations are, at last count, the subject of six state and federal court decisions spanning nearly a decade. After years of effort by the environmental community, the California tiger salamander is now on the brink of becoming listed under the California Endangered Species Act, where it promises to continue and expand the controversy.
Legal protection under the federal Endangered Species Act for a wildlife or plant species begins with its listing as threatened or endangered and the designation of its critical habitat. Critical habitat consists of those areas that are essential to the conservation of a species, and its designation is generally required to occur at the time of listing. The act includes provisions to exclude specified areas from critical habitat based on, for example, economic impact and national security.
In 2004, the U.S. Fish and Wildlife Service attempted to consolidate three distinct population segments of California tiger salamander, the Central, Sonoma and Santa Barbara, into a single "threatened" species, the Central California tiger salamander. This consolidation resulted in a "downlisting" for the Sonoma and Santa Barbara DPSs, which had been listed as "endangered." Following a successful legal challenge, as well as a court order requiring designation of critical habitat for the reinstated Sonoma DPS, Fish and Wildlife published a Final Rule in the Federal Register that identified 17,418 acres of "critical habitat" for the creature. That area was excluded out of the nearly 75,000 acres of critical habitat originally proposed.
The environmental plaintiffs filed a notice of intent to sue, raising, among other things, that the court's order requiring Fish and Wildlife to designate critical habitat for the Sonoma DPS resulted in no critical habitat actually receiving protection since all had been excluded in the final rule. Rather than face another round of litigation over the 2005 Final Rule, Fish and Wildlife and environmental plaintiffs entered into a settlement agreement, which the U.S. District Court for the Northern District of California approved. Center for Biological Diversity v. U.S. Fish and Wildlife Service, No. 08-4595-WHA (May 5, 2009). Under the settlement agreement, Fish and Wildlife must reconsider the 2005 Final Rule and publish a new proposed rule covering the same geographic area - 74,223 acres - covered in its initial 2005 proposed rule. On Aug. 18, Fish and Wildlife proposed 74,223 acres of critical habitat for the Sonoma DPS, comprised of a single unit covering the Santa Rosa Plain. Comments are due Oct. 19. The court has ordered Fish and Wildlife to issue a final rule by July 1, 2011.
The designation of critical habitat has direct and indirect impacts on private land. Virtually any significant development project in California requires some form of federal agency approval. For example, section 404 of the Clean Water Act requires a permit from the U.S. Army Corps of Engineers to deposit dredged or fill into the waters of the United States. When a landowner applies to a federal agency for a necessary approval, and the land at issue has been designated as critical habitat, the federal agency must consult with Fish and Wildlife. The service, in turn, is required to issue a biological opinion that determines whether the proposed federal agency action is likely to "adversely modify or destroy" critical habitat. For the Service to determine that a project will not "adversely modify" designated critical habitat, it must require the project applicant to implement specified measures designed to minimize the impact of the project. Because critical habitat can be designated in areas in which the species is not known to occupy, even if a project area has no listed species found on it whatsoever, the fact that the land has been designated critical habitat effectively gives Fish and Wildlife regulatory control over land that does not contain salamanders. Moreover, the the 9th U.S. Circuit Court of Appeals has interpreted "adverse modification" broadly to include actions that may impact the recovery of the endangered species. Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004).
The California tiger salamander, composed of the three distinct population segments under the federal Endangered Species Act, is also receiving new protections under the California Endangered Species Act throughout its range in California. The California Fish and Game Commission approved the protection of the California tiger salamander under the state act. On Feb. 5, the commission approved the designation of the tiger salamander as a candidate species for listing as endangered under the California Endangered Species Act.
As a candidate species, the California tiger salamander now receives the same protections afforded to species listed as threatened or endangered under the California Endangered Species Act: "Take" of the species is unlawful without a permit issued by the California Department of Fish and Game. The range of the California tiger salamander extends in the coastal region from Santa Barbara County to Sonoma County and in the Central Valley and Sierra Nevada foothills from Yolo to Kern counties.
The California Fish and Game Commission decision follows several years of regulatory and judicial proceedings concerning the salamander. In 2001, it rejected a petition to list the tiger salamander. The Court of Appeal overturned the commission's decision. Center for Biological Diversity v. California Fish and Game Commission, 166 Cal. App. 4th (2008).
The designation of the California tiger salamander as a candidate species triggers a one-year study by the California Department of Fish and Game and a decision by the commission whether to list the tiger salamander under the California Endangered Species Act as an endangered or threatened species. The public comment period closed July 1. The commission has until Feb. 4, 2010 to decide whether to list the species under the California Endangered Species Act.
Project proponents can obtain an individual permit under the act or participate in a regional Natural Community Conservation Plan to legally "take" the California tiger salamander. In addition, for species also listed under the federal Endangered Species Act, the state statute includes a concurrence process under which the California Department of Fish and Game can waive the "take" prohibition for projects that have received "incidental take" authority through a permit or via the consultation process under the federal act.
Sue Meyer is an attorney at Nossaman located in the firm's Orange County office. She has extensive experience working with habitat conservation planning, endangered species permitting, critical habitat and listing issues, and defense of environmental documents for NEPA and CEQA. She can be reached at smeyer@nossaman.com.
Robert Thornton is a partner in the same office. He has practiced environmental law for over twenty-eight years and represents landowners, resource developers, and public agencies on a variety of endangered species matters for complex projects. He can be reached at rthornton@nossaman.com.
Paul Weiland is the firm's land use practice group leader. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act. He can be reached at pweiland@nossaman.com.