BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 880 HEARING DATE: July 3, 2012
AUTHOR: Nestande URGENCY: No
VERSION: March 22, 2012 CONSULTANT: Alena Pribyl
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Ecological reserves: Mirage Trail.
Note: This analysis is the same as the analysis written for the
6/26/12 hearing except for the final comment and suggested
amendments at the end.
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.
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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
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
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in 2007 with the purpose of enhancing and maintaining biological
diversity and ecosystem processes while allowing for future
economic growth.
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
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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
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.
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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.
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
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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.
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.
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4) For a judgment that the public has a customary right to
recreational use of the trails in the Santa Rosa
Mountains.
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.
NEW COMMENT FOR 7/3/12 HEARING: Based on the discussion in
Committee on 6/26/12, Committee staff talked with the author and
others about other possible alternatives to resolving this
situation. The first important consideration to remember is that
the Fish and Game Commission (commission) has regulatory
authority at ecological reserves. It seems self-evident that the
solution should be resolved by the commission, except no one has
ever asked the commission for its assistance on this matter,
which seems to be a significant omission by the proponents. Had
that occurred, the legislation may not have been necessary. The
commission may want to include the department in its
consideration of this matter.
The suggested amendments vest the final decision making in the
commission with direction that the trail should be open on a
seasonal basis as determined by the commission. Local public
agencies or private concerns would be asked to pay for any
fencing, signage, or educational materials that were included in
an agreement with the commission. The measure would sunset in 4
7
years to give the Legislature an opportunity to evaluate the
implementation of the measure, any effects to wildlife, the
performance of the local public or private entities who will be
asked to perform certain duties, and whether the public honors
the conditions in this legislation and any further direction
from the commission.
SUGGESTED AMENDMENTS:
AMENDMENT 1
Page 2, Lines 3-5: Delete
Add: 1587. (a) The Mirage Trail within the Magnesia Spring
ecological reserve shall be open on a seasonal basis to
recreational hiking provided the commission determines that
the conditions in paragraph (1) are met, and any other
conditions imposed by the commission including but not
limited to the following:
1. Local public agencies or any other entities shall
assume complete financial responsibility for any fencing,
signage, and educational materials as required by the
commission and will designate a single entity to enter into
an agreement with the Commission to fulfill the financial
arrangements and other terms and conditions for any
fencing, signage, including any educational materials. The
intent of the fence is to dissuade hikers from traversing
beyond the Mirage Trail and into sensitive Peninsular
bighorn sheep habitat. The intent of signage and
educational materials is to educate hikers about Peninsular
bighorn sheep.
(b) The commission will determine seasonal openings and
closures of the trail that will not conflict with use of
the area by Peninsular bighorn sheep.
(c) This section shall sunset on December 31, 2017.
SUPPORT
Coachella Valley Association of Governments
Coachella Valley Economic Partnership
Indio Chamber of Commerce
Indian Wells, City of
19 individuals
OPPOSITION
Sierra Club California
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