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U.S. Ordered to Reconsider Plants' Status

Court: Activists had sued after agency decided not to set aside protected areas for eight threatened species.


SAN DIEGO — In response to a lawsuit by environmentalists, a federal judge here has ordered the U.S. Fish and Wildlife Service to reconsider within three years its decision not to set aside protected areas known as "critical habitat" for eight imperiled plant species.

The plants are found in scattered spots across the state, ranging from Otay Mesa near the U.S.-Mexico border to Inyo and Mono counties in the Sierra Nevada.

"Critical habitat is essential to species survival and recovery," said Daniel Patterson, desert ecologist with the Idyllwild office of the Center for Biological Diversity. The center and the California Native Plant Society have sued the Department of Interior seeking protection for the eight plants.

Although the decision by U.S. District Court Judge Irma Gonzalez was hailed as a victory for environmentalists, it does not require the U.S. Fish and Wildlife Service to grant any of the plants habitat protection.

The agency could determine that it is still "not prudent" to declare critical habitat for "some, if not all, of the species," the decision said.

Still, Geoff Hickcox, the Durango, Colo., lawyer who represented the environmental groups, said he doubts that the Fish and Wildlife Service will again decide that it is not prudent to provide habitat protection for the eight species.

He said the government voluntarily agreed to reconsider its determination on the eight plants, and the only issue before Gonzalez involved the timeline.

"They know that if they make a 'not prudent' decision again without any additional information, they'll just land back in court," Hickcox said. "We feel good about the results. We've got them to go back and reconsider the rules, which they would not have done otherwise."

Under Gonzalez's decision, the government has until 2004 to determine whether three plants deserve critical habitat designation and until 2005 to make the same decision on five others.

The plaintiffs had wanted all the determinations made more quickly--on the theory that some of the plants are rapidly nearing extinction. But the Fish and Wildlife Service had argued that it needed until 2005 and 2006 because of its substantial workload.

Jane Hendron, spokeswoman for the Carlsbad office of the Fish and Wildlife Service, said the decision will add to the "staggering amount of litigation-driven" work at the wildlife service.

"This work has hindered our ability to set our own priorities, to determine for ourselves which species need protection and where," Hendron said.

She added that, in some cases, determining that a certain area provides critical habitat actually can hasten the destruction of a plant or animal species because it will lead to "collecting" and unauthorized use of the area.

Gonzalez gave the Fish and Wildlife Service until 2004 to make final determinations on the Peirson's milk vetch, the Lane Mountain milk vetch and the Fish Slough milk vetch.

The Lane Mountain milk vetch is found in four western Mojave Desert sites near the Army's Ft. Irwin in San Bernardino County. Environmentalists are concerned that expansion of the Army's tank training and civilian off-road vehicles will damage the plant.

The Fish Slough milk vetch is in the Great Basin Desert region of Inyo and Mono counties, where cattle grazing and off-road vehicle use have sparked debate.

The Peirson's milk vetch arguably is the most controversial of the eight plants covered by the ruling. The plant is found in the Algodones Sand Dunes of Imperial County, where environmentalists and off-road enthusiasts are disputing motorized use of the desert.

The Bureau of Land Management is developing rules for use of the area, under legal and political pressure from both sides. Hendron said it is unclear how the decision will affect the rules' development.

Gonzalez gave the wildlife service until 2005 to decide about the Coachella Valley milk vetch, the Munz's onion found in western Riverside County, the San Jacinto Valley crownscale, the thread-leaved brodiaea found predominantly in northern San Diego County, and the spreading navarretia in Otay Mesa and in western Riverside County.

"It's imperative that scientists and conservation advocates work with governments to conserve our remaining species and their habitats," said Illeene Anderson, Southern California botanist with the California Native Plant Society.

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