The California Endangered Species Act (CESA) has several prohibitions that apply to private entities and individuals, who are not allowed to import, export, take, possess, purchase, or sell a listed species absent a permit or authorization. The term “take” means to hunt, pursue, catch, capture, or kill. Most relevant to Joshua trees, this means that an action likely to kill a Joshua tree would be prohibited without a permit.
· While CESA’s take prohibitions are strong, they are not absolute, and do not serve to block all development in the range of a listed species. Moreover, recent statements by opponents of listing regarding the impacts of listing are either based on a misunderstanding of the law or are the product of intentional spreading of misinformation. For example, there is nothing in the definition of “take” that would preclude an individual from moving aside a fallen Joshua tree branch that was blocking their driveway.
· Take of a listed species may be authorized if the take is incidental to an otherwise lawful activity. Such a permit requires that impacts to the species be minimized and fully mitigated. An incidental take permit can be sought at any scale, ranging from an individual property owner who wishes to build on their land, a larger development project such as a shopping mall or energy project, to an entire city or county. The cost, timeframe and amount of mitigation required to acquire an incidental take permit varies commensurate with the scale of the project.
· An incidental take permit can be for a single species, or for multiple listed species. For example, because the western Joshua tree shares much of its range with the desert tortoise, which is also protected as threatened, any project that would require an incidental take permit for the Joshua tree would likely also already require a permit for the desert tortoise. Given the desert tortoise has been listed under CESA as well as the federal ESA for 30 years, much of the development that has occurred in the high desert over the past three decades has occurred in likely violation of these statutes.
· Take of a listed species can also be authorized at a regional scale through a Natural Communities Conservation Plan (NCCP). An NCCP requires landscape scale conservation but also authorizes take of all covered species in the plan area. An individual landowner in an area covered by an NCCP does not have to individually apply for a take permit if their proposed activities are consistent with the NCCP.
· There are 14 approved NCCPs in California, including in San Diego, Orange and Riverside counties. However, San Bernardino and other counties and local jurisdictions in the Mojave Desert have never managed to successfully develop an NCCP. Consequently, the obligation to apply for an incidental take permit for projects that would harm a listed species in the Mojave such as the desert tortoise or the Joshua tree falls on the individual landowner or project proponent. The Town of Apple Valley is, at present, alone among desert communities in proactively seeking to develop an NCCP.
· A regional NCCP that covers the western Joshua tree, the desert tortoise, and the numerous other rare and imperiled species of the Mojave Desert is the best path forward that can ensure not just the survival of these species, but also smart, sustainable and climate-informed development of the desert in a manner that preserves and enhances the quality of life in our desert communities. The only thing preventing this from happening is the lack of political will.
