Governor Gavin Newsom and both houses of the California legislature this week carried the torch across the finish line after environmentalists’ efforts to effectuate protection of the western Joshua tree through administrative appeals to the California Department of Fish and Wildlife and the California Fish and Game Commission matched with legal action carried out over the last eight years failed.
As a consequence of the legislation carved out as part of this year’s legislative budgetary process, the yucca brevifolia Engelm, referred to in common parlance as the western Joshua tree, will be given what environmentalists say is crucial insulation that will shield the distinctive desert plants from encroaching development and climate change.
Environmentalists in 2015 asked the U.S. Fish and Wildlife Service, which is a division of the U.S. Department of the Interior, to study the status of the trees, their fragility and prospect for survival, seeking a determination that the Joshua Tree is threatened and therefore in need of certain protections. That examination, which began during the Barack Obama Administration, extended itself into the Donald Trump Administration. Slightly more than halfway into President Trump’s tenure in office, the U.S. Fish and Wildlife Service found the listing “not warranted.”In response, the environmental group WildEarth Guardians contested that determination and filed suit in November 2019 in the Central District of California, challenging the U.S. Fish and Wildlife Service’s decision, arguing that the agency failed to consider multiple climate models and improperly discounted the best available science with regard to Joshua tree reproduction and dispersal.
Enforcing governmental safeguards for the trees is crucial to their survival, environmentalists insist. They say climate change could render the western Joshua tree extinct, as the plants’ reproduction in lower elevations has been compromised by hotter, drier conditions, with few offspring trees becoming established.
In 2019, biologists projected Joshua trees will disappear in large numbers from their namesake national park by 2100. An earlier study projected the species will be lost from virtually its entire range in California.
Recurrent and prolonged drought conditions are projected to take their toll on the trees in the future, reducing the species’ range and habitat. Higher elevations, where the species is more likely to survive elevating temperatures and drought, are vulnerable to fire because of the invasiveness of nonnative grasses.
Off-road vehicle use, cattle grazing, powerlines and pipelines, housing projects and large-scale energy projects are eliminating portions of the trees’ habitat.
In September 2021, WildEarth Guardians prevailed in the suit it brought, but the victory proved to be a legal and procedural cul-de-sac. U.S. Federal Judge Otis Wright’s ruling in favor of WildEarth Guardians held that the U.S. Fish and Wildlife Service disregarded material information and reached conclusions that were both “arbitrary and capricious” and unsupported by factual evidence. Wright accepted WildEarth Guardians’ assertion that U.S. Fish and Wildlife Service’s 2019 decision essentially ignored what the latest scientific evaluation revealed, which was that increasing temperatures and prolonged droughts were already impeding successful Joshua tree reproduction in the southern Mojave Desert, a problem that will spread to the majority of not only the western Joshua tree’s species’ ranges but that of the eastern Joshua tree’s natural habitat in coming decades. Judge Wright ordered the U.S. Fish and Wildlife Service to redo its listing decision and account for all the recent science he said it improperly dismissed.
In response, the California Fish and Game Commission granted the yucca brevifolia Engelm temporary protection as it conducted hearings on the issue in fits and starts over the course of the next two years, while considering a peer-reviewed report and recommendation relating to the western Joshua tree assembled by Dr. Cameron Barrows of the University of California Riverside, Dr. Erica Fleishman of the Oregon Climate Change Research Institute, Dr. Timothy Krantz with the University of Redlands, Dr. Lynn Sweet with the University of California, Riverside and Dr. Jeremy B. Yoder from California State University Northridge, which was released in April 2022.
According to Barrows, Fleishman, Krantz, Sweet and Yoder, the outlook for the yucca brevifolia Engelm, while less than encouraging, was not such that the plant was on a definite road to extinction.
“The population size and area occupied by [the] western Joshua tree have declined since European settlement largely due to habitat modification and destruction, a trend that has continued to the present,” the report stated. “Primary threats to the species are climate change, development and other human activities, and wildfire. Available species distribution models suggest that areas predicted to be suitable for [the] western Joshua tree based on 20th Century climate data will decline substantially through the end of the 21st Century as a result of climate change, especially in the southern and lower elevational portions of its range.”
Nevertheless, the scientists said, “the department does not currently have information demonstrating that loss of areas with 20th Century suitable climate conditions will result in impacts on existing populations that are severe enough to threaten to eliminate the species from a significant portion of its range by the end of the 21st Century. The effects of development and other human activities will cause western Joshua tree habitat and populations to be lost, particularly in the southern part of the species’ range, but many populations within the range of the species are protected from development, suggesting that a significant portion of the species’ range will not be lost by development alone. Wildfire can also kill over half of western Joshua trees in areas that burn, and wildfire impacted approximately 2.5% of the species’ range in each of the last two decades, but wildfire does not appear to result in loss of range, only lowering of abundance within the species’ range.”
Barrows, Fleishman, Krantz, Sweet and Yoder stated that “the evidence presented in favor of the petitioned action, the scientific evidence that is currently possessed by the department does not demonstrate that populations of the species are negatively trending in a way that would lead the department to believe that the species is likely to be in serious danger of becoming extinct throughout all or a significant portion of its range in the foreseeable future. The department recommends that the commission find that the recommended action to list [the] western Joshua tree as a threatened species is not warranted.”
Dr. Krantz, as one of the authors of the recommendation against listing the tree as endangered, dissented, stating to the Sentinel, “The western Joshua tree is already very much a threatened species.”
In June 2022 the commission deadlocked 2-to-2 on whether to protect the species while agreeing to reconsider the listing decision after seeking more input from California Indian tribes.
A coalition of environmental groups looking to shield the plant from extinction, licking their wounds after the Barrows, Fleishman, Krantz, Sweet and Yoder report disrupted the march toward an endangered species listing, turned to the California, Nevada and Arizona state governments in an effort to have them legislate protections for the yucca brevifolia and another closely-related plant, the Yucca jaegeriana, called the eastern Joshua tree.
The California Fish and Game Commission postponed a decision earlier this year on using its authority to protect western Joshua trees under the state endangered species act, waiting to see whether the bill proposed by the Newsom Administration, the one passed on Tuesday, would become law.
On Tuesday, as California lawmakers rushed toward finalizing the 2023-24 state budget, which goes into effect on Saturday, the plant was granted lasting protection as part of a trailer bill accompanying the state’s upcoming annual spending plan. The trailer was endorsed in the Assembly by a margin of 54-15 and in the Senate 31-8. Thus, contained within the 2023-24 California Budget Agreement was the Western Joshua Tree Conservation Act, along with a $5 million spending authorization to fund the participation of environmental organizations in their conservation efforts for the species. Governor Gavin Newsom signed the $308 billion budget into law today. It goes into effect tomorrow.
“I’m grateful the Newsom administration and lawmakers agree that western Joshua trees are an irreplaceable part of California’s natural heritage that has to be protected,” said Brendan Cummings, the Center for Biological Diversity’s conservation director. “This groundbreaking law will help ensure these wonderful trees remain part of California’s Mojave Desert landscape forever.”
“The California Endangered Species Act is our most important biodiversity protection law, and western Joshua trees clearly qualify as threatened,” said Cummings, a Joshua Tree resident. “As the first species in the state to be protected because of climate change, they deserve the special measures contained in the new conservation act.”
The provisions of the Western Joshua Tree Conservation Act include:
• Prohibiting unpermitted killing or removal, sale, purchase or possession of the trees without state authorization.
• Requiring a conservation plan for the species.
• Creating a fund to acquire and manage lands to protect the species.
• Creating a streamlined permitting process expected to be faster and cheaper than the state endangered species act, which adds provisions for new housing, renewable energy developments, and other projects, in exchange for the payment of mitigation funds that will be used to acquire habitat for the iconic trees elsewhere.
• Requiring regular reviews of the species’ status and the effectiveness of the permitting regime and conservation plan.
• Requiring consultation with California Native American Tribes on the law’s implementation.
The Department of Fish and Wildlife is to control the permitting process for removing Joshua trees, which will call upon the seeker of the permit making a tally of all Joshua trees on the applicant property, including photos and sizes for each tree. Mitigation steps could include fees, relocating the tree, and limitation to any harm to the tree.
Required fees for removing Joshua trees increase at sites that are within or in close proximity to Joshua Tree National Park or state park units.
The act provides for arrangements with cities and counties giving those governmental entities authority to permit the removal of a western Joshua tree associated with developing housing or public works projects without routing each permit application for state review. This requires that such development projects not entail the removal of more than 10 individual trees from a project site for housing, or more than 40 trees on a site for a public works project.
The act further requires the California Department of Fish and Wildlife to prepare a conservation plan for the trees by the end of 2024, and submit an updated status report on the species by 2033.
-Mark Gutglueck