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District Court Issues Decision Invalidating San Diego Multiple Species Conservation Program Plan and Halting All Activities with the City of San Diego that Impact Vernal Pool Habitat

By: Robert D. Thornton, Paul S. Weiland

The United States District Court for the Southern District of California has upheld a challenge by plaintiff environmental groups to certain aspects of the San Diego Multiple Species Conservation Program (MSCP) Plan (hereinafter, the "Plan").  Southwest Center for Biological Diversity v. Bartel, No. 98-2234 (S.D. Cal. Oct. 13, 2006).  The Court held that the Plan did not provide adequate mitigation for impacts to seven vernal pool species and enjoined the City’s incidental take permit for pending and future development projects that harm any of the seven vernal pool species.

The decision has broad implications for existing and future habitat conservation planning efforts pursuant to the Endangered Species Act (ESA) including other large-scale habitat conservation plans in southern California.  Specifically, the Court interprets the ESA to impose a distinct conservation standard as a condition of incidental take permit issuance in addition to the express standards for issuance set forth in the statute.  In addition, the decision has immediate, significant implications for any party that is seeking or has obtained take coverage under the Plan for any activity that will affect vernal pool habitat in the City of San Diego.

In 1997, the U.S. Fish and Wildlife Service (hereinafter, the "Service") and the California Department of Fish and Game approved the MSCP.  The MSCP Plan is a regional, framework plan that covers approximately 900 square miles in southwestern San Diego County and is designed to protect species and habitat.  To implement the Plan, local jurisdictions within the Plan area, such as the City of San Diego, must prepare Subarea Plans.  The challenge and decision are limited to the City of San Diego thereby involving the MSCP Plan and the City’s Subarea Plan.

Plaintiff environmental groups filed a challenge to the Plan alleging, among other things, that it includes inadequate protections for seven vernal pool species that are covered by the Plan and the Service erred in concluding that the City ensured adequate funding for the Plan.  The Court agreed with plaintiffs that the Plan includes inadequate protections for the seven covered vernal pool species (two fairy shrimp and five plants).  In order to evaluate the legality of the Plan and associated incidental take permit, the Court applied the specific standards set forth in section 10(a)(2)(B) of the ESA as well as a separate, broad conservation standard.  The Court held that – to withstand scrutiny – a permit "must satisfy the ESA goal of conservation, which will allow the species to recover in order to ‘reverse the trend to extinction.’"  Slip Op. at 11 (citations omitted).  Federal defendants failed to meet the requisite standards because, among other things, (1) a 2001 Supreme Court decision foreclosed deferred review of project-specific activities that affect the species, which was contemplated in the Plan and incidental take permit, Slip Op. at 13-15, and (2) the incidental take permit issued locks in "ineffective, unstudied, and inadequate mitigation for the vernal pool species for fifty years."  Slip Op. at 36.

The Court disallowed all pending applications for development of land that contains vernal pool habitat; those projects where the City has granted permission, but the development has not begun to destroy vernal pool habitat; and any further development where the permittee is presently engaged in the destruction of vernal pool habitat.  Slip Op. at 60.  The Court also remanded the matter to the Service with instructions to revise the terms of the incidental take permit issued to the City.  Id.

Of note and particular concern to the regulated community is the Court’s interpretation of the habitat conservation planning provisions of the ESA to establish, in addition to the detailed and explicit standards for incidental take permit issuance, a distinct "overarching duty to conserve listed species."  Slip Op. at 11.  Also troubling is the Court’s rejection of Federal defendants characterization of recovery plans prepared under section 4(f) of the ESA as non-binding, combined with the Court’s statement that "the ESA clearly requires [the Service] to follow through with the measures identified in recovery plans."  Slip Op. at 23 n. 14.

Robert Thornton and Paul Weiland counsel clients regarding environmental and land use matters and litigate such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act and National Environmental Policy Act.  Mr. Thornton was counsel to the House of Representatives Subcommittee that authored major amendments to the ESA.  Mr. Weiland worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  They can be reached by telephone at (949) 833-7800 or by email at or

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