Late on Friday October 13, District Court Judge Rudi Brewster, a Reagan appointee, released a 61-page opinion halting damage to wetlands in undeveloped areas within the city of San Diego. The ruling criticizes the San Diego Multiple Species Conservation Plan for its failure to conserve seven imperiled vernal pool wetland species including two fairy shrimp and five plants. The ruling also rejects a related lawsuit by developers and sends the plan back to the U.S. Fish and Wildlife Service for the agency to try again.
According to the ruling:
- The Service failed to consider that the MSCP undermines the recovery of the seven vernal pool species after the agency released a recovery plan with much stronger conservation recommendations, nor after the U.S. Supreme Court issued an opinion narrowing the federal government's ability to protect vernal pools. The judge wrote, "The species are left in a 'heads I lose, tails you win' position that substitutes inadequate conservation measures in the place of the strict conservation and recovery standards of the [Endangered Species Act.]"
- The effects of anticipated major development on the vernal pool species were never analyzed, yet the agency concluded that the MSCP protected the species against extinction and provided developers with "no surprises" assurances that no additional conservation would be necessary for fifty years;
- The plan fails to provide assured funding for promised conservation activities. The plan's vague pledges of future funding stand in stark contrast to precise and absolute assurances to developers.
Approved in 1997, the San Diego MSCP was heralded by then-Secretary of the Interior Bruce Babbitt as a "model for the country." But scientists and conservationists were troubled by the plan's neglect of necessary development limits and conservation measures to protect many of San Diego's rarest species and habitats.
In late 1998, following approval of major new development impacts to vernal pools, 13 groups filed a lawsuit focused on the MSCP's failure to conserve the pool species.
"The judge's ruling is an affirmation of concerns that have been raised for years by scientists and conservationists alike," said David Hogan, Director of the Urban Wildlands Program at the Center for Biological Diversity. "These plans should help recover listed species, not serve as a blank check for developers."
"The ruling recognized that the MSCP provided certainty for developers without also insuring that the rarest species will have a secure future," said Neil Levine, an attorney with Earthjustice who argued the case. "The decision means that the San Diego plan and others like it should be improved to uphold their conservation commitments."
"The judge took a very thorough look at the record in this case," said Dan Rohlf of the Pacific Environmental Advocacy Center, who was also one of the lawyers for the conservation groups. "The opinion points out what the facts make very clear – more needs to be done in San Diego to protect the last remnants of some of the rarest species and habitat in the country," Rohlf said.
The ruling goes to the heart of several important issues around habitat conservation plans. Said Hogan, "The plans should go beyond just preventing extinction and actually contribute to the recovery of listed species, especially where large-scale plans encompass the majority of a species' range. And the plans must provide funding and other practical measures to actually carry out conservation commitments."
Invoking the controversial "no surprises" policy, the MSCP locked in its wetlands management "plan" for 50 years despite the fact that no plan existed and vernal pool mitigation efforts to date have been a dismal failure. Added Hogan, "The San Diego MSCP is a real example of the problems with the no surprises policy. The judge pointed to evidence that while more development is a virtual certainty, measures in the MSCP to recover these species may never materialize."
Judge Brewster summed it all up: "If this type of destruction is treated on a case-by-case basis as an unimportant loss, it does not take long before life on this planet is in jeopardy."
Other conservation groups who joined in the lawsuit include the California Native Plant Society, Wetlands Action Network, Save our Forests and Ranchlands, Carmel Mountain Conservancy, Preserve Wild Santee, Ramonans for Sensible Growth, San Diego Audubon Society, San Diego Chapter Sierra Club, Horned Lizard Conservation Society, San Diego Herpetological Society, Earth Media, and Preserve South Bay.
Read the ruling (PDF)