BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- BILL NO: AB 880 HEARING DATE: June 26, 2012 AUTHOR: Nestande URGENCY: No VERSION: March 22, 2012 CONSULTANT: Alena Pribyl DUAL REFERRAL: No FISCAL: Yes SUBJECT: Ecological reserves: Mirage Trail. BACKGROUND AND EXISTING LAW The Department of Fish and Game (DFG) manages 130 ecological reserves that encompass about 212,000 acres in the state of California. Ecological reserves are established by the Fish and Game Commission (FGC) and are managed by DFG. Existing state regulations: 1) Establishes ecological reserves to provide protection for rare, threatened or endangered native plants, wildlife, aquatic organisms and specialized terrestrial or aquatic habitat types. Requires that public entry and use of ecological reserves are compatible with the primary purposes of the reserves (14 CCR §630). 2) Requires that resources within an ecological reserve are protected and that no person shall mine or disturb geological formations or archaeological artifacts or take or disturb any bird or nest, or eggs thereof, or any plant, mammal, fish, mollusk, crustacean, amphibian, reptile, or any other form of plant or animal life in an ecological reserve. Authorizes DFG to implement enhancement and protective measures to assure proper utilization and maintenance of ecological reserves (14 CCR §630 (a)). 3) Authorizes DFG to restrict public entry to protect the wildlife, aquatic life, or habitat. 4) Establishes special regulations for Magnesia Spring ecological reserve that no person (with limited exceptions including employees of the City of Rancho Mirage or the City 1 of Palm Desert who are in the performance of their official duties) shall enter this reserve during the period January 1 to September 30 except on designated trail (14 CCR §630(b)(73)). Existing federal law: 1) Establishes the Endangered Species Act (ESA) that makes it unlawful for any person subject to the jurisdiction of the United States to take any endangered species of fish or wildlife listed pursuant to the act within the United States or the territorial sea of the United States. 2) Authorizes the Secretary of the Interior to permit under such terms and conditions as he shall prescribe, the taking of an endangered species if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity (Section 10(a)(1)(b)). Magnesia Spring ecological reserve The Magnesia Spring ecological reserve is located in the Northern Santa Rosa Mountains of the Coachella Valley above the cities of Rancho Mirage and Palm Desert. The reserve was established in 1975 by the FGC to consolidate a large area of critical habitat for the endangered Peninsular bighorn sheep, Ovis canadensis nelsoni. The reserve currently falls within the purview of three different management plans: 1) the DFG wildlife management plan specifically for the Magnesia Spring ecological reserve, 2) the Santa Rosa Mountains Wildlife Habitat Management Plan which includes the reserve land and adjacent Bureau of Land Management (BLM) land, and 3) the Multiple Species Habitat Conservation Plan which includes land throughout the Coachella Valley including the reserve. DFG adopted the wildlife management plan for Magnesia Spring ecological reserve in 1976. The management plan states that the primary intent of the reserve is to rehabilitate and maintain habitat centered around Magnesia Spring so that the bighorn sheep population in the area can be maintained. The Santa Rosa Mountains Wildlife Habitat Management Plan (SRMWHMP) was adopted by the BLM and DFG in 1980. The SRMWHP states its principle emphasis is to manage the bighorn sheep population by preserving habitat and tailoring public use to insure minimal permanent impacts. The Coachella Valley Multiple Species Habitat Conservation Plan (MSHCP) was approved by 21 federal, state, and regional agencies and cities in 2007 with the purpose of enhancing and maintaining biological diversity and ecosystem processes while allowing for future economic growth. 2 Coachella Valley Multiple Species Habitat Conservation Plan (MSHCP) A MSHCP is a type of Habitat Conservation Plan, which is required as part of an application for an incidental take permit under the ESA (Section 10(a)(1)(b)). It is a planning document that ensures the anticipated take of a listed species will be minimized or mitigated by conserving the habitat the species depend on, thereby contributing to the recovery of the species as a whole. MSHCPs balance environmental protection and economic development objectives for regions planning future development in areas with endangered species. In the Coachella Valley, the MSHCP is intended to provide a means to standardize mitigation measures for listed species so that, with respect to public and private development actions, mitigation measures established by the MSHCP will satisfy both federal and state laws pertaining to endangered species protection. Final ESA permits for the Coachella Valley MSHCP were issued in 2008 by the U.S. Fish and Wildlife Service (USFWS) and DFG. In the Coachella Valley MSHCP, several management actions are described that were already initiated in response to a separate environmental impact report (EIR) that was conducted for the City of Palm Desert. These management actions include the re-routing and closure of several trails, including the last mile of the Mirage Trail, and a requirement to implement education, signage and enforcement programs to support the management actions. Mirage trail The Mirage trail (a/k/a the "Bump and Grind" trail) is a popular trail that has been used by local residents for exercise for many years. An estimated 100-200 people use this trail daily. It is approximately 3.0 miles in length and gains an elevation of 800 feet. The last mile of the trail is located within the Magnesia Spring ecological reserve. This upper portion of the trail was initially closed by DFG in 2006 as mitigation for the creation of new trails and because it encroached on important lambing and rearing habitat for Peninsular bighorn sheep. The closing of this mile of trail has been highly controversial and unpopular among the local community. According to DFG, several gates with accompanying signage were constructed at the point of closure along the trail in 2006. The gates and signs were vandalized and the closure ignored. In 2011, a sturdier gate was installed along with security cameras, which were also vandalized. Vandalism has been on the rise in the area, with vandals moving boulders into the road to block weekly 3 visits by DFG personnel to repair vandalized signs. According to the Bighorn Institute, a nonprofit organization created in 1982 by a group of biologists and veterinarians to investigate the causes of bighorn sheep declines, the lambing and rearing habitat of Peninsular bighorn sheep in the Magnesia Spring ecological reserve is located above the end of the Mirage trail. They say the primary problem is not the Mirage trail itself, but that many people go beyond the end of the Mirage trail and hike directly into the lambing and rearing habitat. Peninsular Bighorn Sheep The Peninsular bighorn sheep was listed as threatened under the California Endangered Species Act in 1971 and as endangered under the Federal Endangered Species Act in 1998. In 1974, the Peninsular bighorn sheep population was estimated at 1,171, but declined to 276 by 1996. This decline was likely due to threats from predation, human interference, habitat loss and disease from domestic animals (USFWS 2011). Since being federally listed in 1998, Peninsular bighorn sheep populations have increased; the overall population estimate for 2010 was 981 adult bighorn sheep. However, while the number of sheep has increased, the number of ewes remains below the recommended number for down listing under the recovery plan, and population growth has been slow. Among several current threats listed by the USFWS that impact recovery of Peninsular bighorn sheep are trails and recreational use, the response to human disturbance, and insufficient lamb survival (USFWS 2011). According to the Bighorn Institute, in the northern Santa Rosa Mountains, where the Magnesia Spring ecological reserve lies, the Peninsular bighorn sheep herd has remained stable at about 65 sheep, although DFG estimates put the population at 90 sheep in 2010 (USFWS 2011). The Bighorn Institute says the low growth of the population over the last several years is cause for concern. One of the reasons for the lack of population growth is low survival of lambs. Since 2005, the survival rate of lambs in the northern Santa Rosa Mountains has ranged between 3% - 20%. A healthy population of bighorn sheep is expected to have a lamb survival rate of 25% - 30%. In 2005, the low survival rate was linked to a viral outbreak, but the cause for subsequent low survival rates is unknown. U.S. Fish and Wildlife Service. 2011. Peninsular bighorn sheep 5-year review: Summary and Evaluation. U.S. Fish and Wildlife Service, Carlsbad, CA. 95 pp. 4 PROPOSED LAW This bill requires the Department of Fish and Game to open the upper portion of the Mirage Trail within the Magnesia Spring ecological reserve to hiking and biking recreational activities. ARGUMENTS IN SUPPORT According to the author, "the Mirage Trail has been used for many years and the bighorn sheep population has continued to grow. A proper study, as required in the CVMSHCP, has not been conducted to justify the closure. Before the trail is closed, this research should be provided to show it is necessary." Hikers of the trail question the claim that the endangered bighorn sheep are being infringed upon by hikers on the Mirage trail. They state there are no studies that show hikers affect bighorn sheep populations, that bighorn sheep do not use the area where the Mirage trail is located, that other trails further in the reserve with higher concentrations of sheep are still open seasonally, and that DFG has failed to show why it is necessary to gate off the last mile of the Mirage trail. Supporters also state that DFG has overreached their authority in its decision to close the trail without first conducting a proper study to show the closure is necessary and that biologists who have intimate interaction with bighorn sheep habitat say there are discrepancies and inconsistencies in the data used by DFG to make their decision. ARGUMENTS IN OPPOSITION Jordan Traverso, DFG Deputy Director of Communications, Education and Outreach released a statement saying, "DFG is the state agency responsible for protecting and preserving the state's wildlife resources and the habitat on which they depend. This is our objective for endangered Peninsular bighorn sheep on the Magnesia Spring Ecological Reserve, and it is mandated by law and in the Coachella Valley Multi Species Habitat Conservation Plan. DFG has done everything possible to accommodate trail users in the area, including support of a project to build new multi-use, year-round trails on DFG land to skirt the edge of the reserve." Additional opposition states that the top portion of the Mirage trail was kept closed as mitigation for opening up other portions of DFG's ecological reserve for trail use. This bill will remove what is required as CEQA mitigation, and if the trail were to be re-opened, it should require a new CEQA review. 5 They also state opening the trail could negatively affect the entire Coachella Valley MSHCP Trails Plan framework and that the bill creates a bad precedent by legislating uses in DFG ecological reserves that is better left to the agency to decide with stakeholder and local input. COMMENTS Coachella Valley MSHCP Trails Plan In the author's fact sheet, the author notes the MSHCP calls for the development of a Trails Plan for adaptively managing the trails in the conservation area. The initial goal of the Trails Plan is to obtain scientific data to evaluate the effects of recreational trail use on Peninsular bighorn sheep health, habitat selection, and long-term population dynamics. This information will then be used to guide trails management in the conservation area. Conflicts with State/Federal Laws This bill would conflict with current state statutes and regulations that authorize DFG, at its own discretion, to restrict public entry to ecological reserves to protect wildlife, aquatic life, or habitat and that state "public entry and use of ecological reserves shall be compatible with the primary purposes of such reserves." The primary purpose of the Magnesia Spring ecological reserve is for protection of the Peninsular bighorn sheep. The committee may want to consider if the California Legislature would like to set a precedent of overriding the biological expertise of DFG with its own opinion when DFG management decisions prove to be locally unpopular? Pending litigation A lawsuit was recently filed by an individual against DFG which makes several claims of incorrect management of the Magnesia Springs ecological reserve. The plaintiff requests several actions including: 1) A writ of mandate directing DFG to either permanently re-open the Mirage trail or re-open it during time periods that would not conflict with use of the area by the sheep. 2) For a preliminary and permanent injunction to prevent DFG from closing the trail. 3) For a judgment that the public has a recreational easement in the trail, and that DFG interests in the land are subject to the public's easement. 4) For a judgment that the public has a customary right to recreational use of the trails in the Santa Rosa Mountains. 6 5) For a declaration that the regulations permanently prohibiting use of the trail are invalid. This lawsuit is in its early stages. However the committee should be aware that the passage of this bill could preempt any decision by the court on issues very similar to those presented in this legislation. In that regard, the bill could be considered premature. An earlier lawsuit was also filed by the same individual appealing a Public Records Act denial by DFG for data about where bighorn sheep have been sighted in the Santa Rosa Mountains. This litigation was successful and DFG released the information and paid $22,500 in legal costs. Related legislation AB 284 (Nestande) - this bill was introduced in 2011 and had identical language about re- opening the Mirage trail in the Magnesia Spring ecological reserve; it was not passed out of the house of origin before the 1/31/12 deadline and died. AB 880 was subsequently gut and amended with the language from AB 284. SUPPORT Coachella Valley Association of Governments Coachella Valley Economic Partnership Indio Chamber of Commerce Indian Wells, City of 19 individuals OPPOSITION Sierra Club California 7