U.S. Federal District Judge Otis Wright II on September 20 ruled that a succession of U.S. Department of the Interior secretaries and the U.S. Fish and Wildlife Service fell down in their respective duties to protect the dwindling Joshua Tree population in California’s deserts from the threat of extinction, ordering the current secretary and the service to take whatever measures are appropriate to ensure the survival of the plant, known by its scientific name, Yucca Brevifolia.
Judge Wright’s ruling arose out of a lawsuit brought by the WildEarth Guardians in 2015 under the Endangered Species Act to have the iconic tree listed as threatened.
Under the Endangered Species Act, plant and animal species may be formally or officially listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered within the foreseeable future. There are two informal or non-official terms also applied to various species, those being “imperiled” or “at risk.” Although imperiled or at risk are not legal terms under the Endangered Species Act, they are terms used by biologists to connote that animals and plants are in decline and may be in danger of extinction. Those terms can include species that are at low populations and near extinction but still not legally protected under the Endangered Species Act.
In the six years since WildEarth Guardians brought that action, the oversight orientation of the U.S. Department of Interior has zigged and zagged. In 2015, under the Barack Obama Administration, Republicans and private property rights advocates considered those to be in control of the Department of the Interior to be tree huggers who were unreasonably protective of natural resources and obstructionists to economic development, in particular to the construction of buildings on remote or undeveloped federal properties. With the advent of the Donald Trump Administration, Kevin “Jack” Haugrud served as the acting secretary of the interior from the end of the Obama administration on January 20, 2017 until the swearing in of Ryan Zinke on March 1, 2017.  Zinke served as secretary of the Interior from 2017 until his resignation in 2019. Zinke was succeeded by David Bernhardt. A key Trump Administration appointee in the Department of the Interior was  acting Assistant Secretary for Land and Minerals Management Casey Hammond.
During the four years the Trump Administration remained in place, under the guidance of Haugrad, Zinke, Bernhardt and Hammond, action on the WildEarth Guardians request languished. Even after the transition to the Joseph Biden Administration in January, with Deb Haaland replacing Bernhardt and Laura Daniel Davis displacing Hammond, the sought-after protection of the Joshua Trees in the California desert were not forthcoming from the Department of the Interior or U.S. Fish and Wildlife Service While it was believed in some circles that WildEarth Guardians might forsake their legal quest and allow things to take their natural course under the Biden Administration, which was believed to be far more sympathetic to ecological issues than its predecessor, the suit remained active.
One consideration was that federal and state protections for endangered species are sometimes different and the protection regimes run along differing tracks.
This week, Judge Wright informed Deb Haaland that she and her predecessors as well as the the U.S. Fish and Wildlife Service had not provided the Joshua tree the protection it is due under the Endangered Species Act, saying the U.S. Fish and Wildlife Service’s failure to act was “arbitrary and capricious.”
Federal officials, Judge Wright opined, had disregarded scientific studies which have found that the Joshua tree is on a trajectory toward extinction by the end of the 21st Century.
The United States Fish and Wildlife Service made a finding in August 2019 that the endangered listing for the trees was “not warranted.” WildEarth Guardians countered that “all the available scientific evidence point(s) to the… conclusion [that] Joshua trees will be in danger of extinction throughout most of their current range by century’s end from climate change-driven habitat loss, invasive grass fueled wildfire, and other stressors.”
In its suit, WildEarth Guardians presented substantial, indeed what Wright characterized as “overwhelming,” evidence the Trump administration and the United States Wildlife Service ignored every available peer-reviewed study to model future climate impacts to Joshua trees, all of which concurred in the estimation that roughly 90 percent of the species’ current range will be rendered unsuitable by 2099. Judge Wright lambasted the service’s decision in the ruling, stating that “[I]n concluding that climate change will not affect Joshua trees at a population or species level, the service relies on speculation and unsupported assumptions.”
He ordered that the United States Fish and Wildlife Service and the Department of the Interior utilize “the best available science” in predicting the trees’ prospect for survivability, including climate change models, that it reconsider its previous decision and action, and issue a decision based on the more thorough data within a year.
The Fish and Wildlife Service has the option of appealing Judge Wright’s decision. It has until 5 p.m November 19 to do so. It is unlikely that the Biden Administration, which has a sharply different orientation with regard to ecological issues than did the Donald Trump Administration, will appeal. Nevertheless, WildEarth Guardians signaled its organizational dismay with the inertia displayed within the Department of the Interior after the Trump/Biden transition with regard to outstanding environmental issues, particularly in relation to the Joshua Tree.
“While we are grateful to the court for this positive decision, we are very disappointed that the Biden Administration failed at several junctures to do what’s right by these iconic Joshua trees,” said Lindsay Larris, wildlife program director for WildEarth Guardians. “The time and money the federal government spent defending a decision that the court could clearly see was wrong – instead of using these funds to conserve species and determine how to mitigate massive biodiversity loss from climate change –is tragic and, unfortunately, telling. We need this administration to take swift action to protect species and habitat, not just deliver nice messages about the importance of fighting climate change while defending the damaging actions of the prior administration. [W]hile the decision was issued by the service under the Trump administration, the service refused to budge from its indefensible position—or even consider taking a fresh look at the finding – even under the Biden administration.”
Jennifer Schwartz, staff attorney for WildEarth Guardians and lead attorney on the case, lauded Judge Wright for his grasp of the issues at stake.
“The court’s decision represents a monumental step forward for the Joshua tree, but also for all climate-imperiled species whose fate relies upon the service following the law and evaluating the best scientific data available with respect to forecasting future climate change impacts,” Schwartz said. “The court’s unequivocal holding—that the service cannot summarily dismiss scientific evidence that runs counter to its conclusions – will force the federal government to confront the reality of climate change and begin focusing on how to help species adapt. For the sake of the Joshua tree and the overwhelming majority of the public who believe in conservation, science, and protection of species and habitat, we are optimistic that the service will use this opportunity to quickly issue a decision to protect the Joshua tree. Our climate-imperiled species – plants and animals alike – do not have time for political gamesmanship that questions unambiguous science. Now is the time for action to preserve what we can of the natural world before it is too late.”
Officials with the Town of Yucca Valley previously advocated that the Joshua Tree not be listed as endangered, since restrictions on the trees removal would interfere with many efforts to develop property in that 40.02 square mile incorporated municipality.
The California Department of Fish and Wildlife, in reaction to environmentalists assertions that Western Joshua trees have been brought closer to extinction by development, climate change, drought and increasing numbers of wildfires, recommended in April 2020 that the department’s board of commissioners take action to give the desert-specific Yucca Brevifolia protection. The “taking” of a western Joshua tree became a criminal act under state law in September 2020, when the California Fish & Wildlife Commission made the tree a candidate for endangered or threatened species protections. Under the applicable statute, it is illegal to disturb, move, replant, remove or kill Western Joshua trees. Such action is designated as a misdemeanor, punishable by up to a $4,100 fine and six months in jail.
-Mark Gutglueck